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Reprinted with permission from the Guardian

There’s a classic scene in The Matrix, where Morpheus (the Laurence Fishburne character) offers Neo (played by Keanu Reeves), a fateful choice.

He holds out two pills. Take the blue pill, he says, and you go back to a life of clock-punching drudgery where your every move is monitored. Take the red one, and you get spaceships, kung-fu and a leather-clad Carrie-Anne Moss.

Take away the martial arts, and Morpheus could just as well be describing the monumental choice Americans are facing today over the future of the Internet. Only it’s not science fiction.

Over the next few years, Congress, the Federal Communications Commission and the next president will shape the Internet for a generation. Down one path is a closed Internet experience tightly controlled by a small handful of giant corporations. Down the other is the open Internet, with all its possibilities.

Closed for Business

Who wants you to swallow the blue pill? Meet the nation’s biggest telecom and cable companies, a cartel that dominates 99% of the U.S. residential market for high-speed Internet access. These firms — led by AT&T, Verizon, Comcast and Time Warner — want to exploit their gatekeeper power to decide what you can do on the web.

That’s not what they say in their ubiquitous ads, of course. But watch their actions closely — or squint at the fine print in the terms of service — and you’ll get a glimpse of their plans.

These companies are lobbying furiously to kill “Network Neutrality,” the longstanding principle that prevents them from discriminating against Web sites or services based on their source, ownership or destination.

Comcast was recently caught blocking users of file-sharing services, cutting off access to legal content — including a download of the King James Bible. Their “network management” is really just an attempt to undercut potential competitors in the video business, while avoiding sorely needed network upgrades.

Verizon censored text messages sent by NARAL Pro-Choice America to its own members. Only after the incident appeared on the front page of the New York Times did Verizon correct its “glitch” and let the messages go through.

AT&T plans to “filter” content to ferret out pirated material on its networks. The company - the same one seeking retroactive immunity for spying on your phone calls - would use copyright protection as a Trojan horse to inspect everything travelling over its pipes and control how audio and video are distributed on the Web.

The Open Road

An open Internet looks quite different. It starts with Net Neutrality, which guarantees a level playing field and gives the little guy the same chance as Google to come up with the next big thing. (Remember, it wasn’t Comcast or AT&T that invented YouTube, blogs, eBay or almost anything else that makes the internet so great.) On an open Internet, a provider’s only job is to move data — not degrade, inspect or censor content.

An open Internet also means more competition and choices. Unfortunately, the U.S. government has abandoned the “open access” requirements that once forced telecom companies to share their wires to ensure a competitive market. When it comes to broadband, most U.S. consumers now are lucky to have two choices: the phone or the cable company. Contrast this with the dozens of providers competing for your business overseas. No wonder Americans pay far more for slower speeds than consumers in Europe and Asia.

We need to open up the wireless networks, too. Mobile devices are how many of us will access the Internet in the future. But U.S. consumers are shackled with punitive, long-term contracts as new technology is kept behind walled gardens. (If you want an iPhone, your only option is to sign up with AT&T.) Why can’t we use any phone or software we want on all networks?

The answer comes down to policy decisions - mostly bad ones. For too long, our policies have been crafted behind closed doors by high-priced lobbyists and clueless politicians. It’s scandalous that we’ve reached this critical juncture without a truly public conversation about what the future of the Internet should look like.

Taking it Public

Instead of aiding and abetting another massive giveaway to the phone and cable companies, our legislators and regulators need to get outside Washington. We need old-fashioned town meetings and online forums about the Internet’s future in every state, if not every congressional district.

Unless you’re a phone or cable company executive, it’s hard to imagine anyone who opposes universal, affordable access to an open internet for everyone. Already, nearly 2 million people have contacted Congress and the FCC about the once-obscure issue of Net Neutrality. Can you think of another issue that unites MoveOn.org and the Christian Coalition, PETA and the Gun Owners of America, Amazon.com and the American Library Association?

Putting an open Internet on the national agenda this election year and into 2009 will require an unusual combination of dedicated politicians, high-tech companies that see beyond their own narrow interests, and innovative grassroots organising online and off. And we can count on the phone and cable giants — with their limitless lobbying budgets and bulging campaign coffers — to put up a fight.

But as Morpheus once said: “I didn’t say it would be easy, Neo. I just said it would be the truth.”

Comcast’s new “terms of service,” which were quietly issued last week, remove any doubt about who the cable and broadband giant is looking out for — and it’s not the customer.

On Jan. 25, the company released its “revised and effective” terms for Internet users with lots of restrictions and new limitations — but little fanfare. No press release. No announcement to customers.

Guest Post by Marvin Ammori, Free Press General Counsel

Just a Web-accessible document that, fortunately for me, was forwarded by networking guru Robb Topolski. Upon reading the document Comcast’s relative silence becomes clear. Why publicize a limited and throttled service when you are pitching “unlimited” Internet access to your customers?

After having been caught lying to users and the press for years, Comcast is now basically saying: Our network sucks, and we can block your peer-to-peer connections — and everything else — for any or no reason. And since the FCC’s competition policy lets us operate with no competitors — where else are you going to go?

But wait, there’s more:

1. Comcast thinks you’re a virus.

Comcast says it needs to manage its network to protect users from “the negative effects of spam, viruses, security attacks, network congestion, and other risks and degradations of service.” Let’s put this is plain English:

As a Comcast customer, you pay $40-$60 for what’s been sold as a 6 Mbps unlimited service. Let’s forget that you’re overpaying compared to European and Asian countries for speeds that are 20-to-100 times slower.

If you want to use Comcast’s service as it has been advertised, you’ll be treated like spam or a virus. You are like a security attack to them. Instead of using the Comcast service as it has been billed, send Comcast your monthly check and, I don’t know, read a book. Watch a play. Just don’t use the network you paid for. Because Comcast can’t handle the load.

2. Comcast throws its buddies under the bus.

Comcast is taking a lot of heat. The FCC is investigating the company after blocking complaints from consumers and a petition filed by public interest advocates.

The FCC responded by asking for public comments before they determine a course of action. More than 15,000 Americans have already weighed in, most complaining about Comcast’s blocking a wide range of applications — including the popular peer-to-peer services offered by BiTorrent and others.

Comcast’s excuse? The company says its practices are “consistent with industry standards.” It claims that many Internet providers “use the same or similar tools that Comcast does.”

This is called the first-grader defense: If caught stealing candy, be sure to blame others kids for doing the same. Most adults wouldn’t try this excuse. But if you give millions in campaign contributions and support an army of connected lobbyists, you might just think you can get away with it in Washington.

What’s lurking behind Comcast’s defense is even more alarming. Comcast could be right that content discrimination is industry-wide. If so, the FCC should begin with Comcast and then dig deeper — start investigating the “content-shaping” practices of the phone and cable duopoly that control 96 percent of America’s residential broadband market.

3. Comcast violates its own terms of service.

One of Comcast’s 12 “conduct restrictions” states that users can’t “impersonate any person or entity, engage in sender address falsification, forget anyone else’s digital or manual signature.” But this is a classic case of “do as I say, not as I do.”

To block protocols, Comcast and its vendors impersonate both the sender and the receiver — dressing themselves up as the user to transmit a message that breaks off the connection.

Imagine if the operator were to break into your phone call, impersonate your voice, tell your mother you didn’t want to talk with her, and hang up the receiver. Comcast thinks that would be “reasonable” — even though it’s in direct violation of the company’s own terms of service.

4. Comcast sucks: please use our product less.

In its new terms of service, Comcast essentially admits that it has built its product poorly and lied to customers about “unfettered,” “always-on” access. It states that it must “temporarily delay peer-to-peer sessions (or sessions using other applications or protocols) during periods of high network congestion.” Let’s unpack this. “Delaying” is a lie. What Comcast is doing is terminating connections.

The company calls it “delaying” on the assumption that users will try to connect at a later time — but when you’re “delayed” for three hours, do you stay at your computer hitting refresh over and over? Some peer-to-peer applications just give up after a delay.

But Comcast isn’t just delaying peer-to-peer sessions — it’s delaying sessions using “other” applications and protocols. Translation: “We block whatever we want, whenever. And we say that it’s OK for us to do this … on page five of our online terms of service.”

Finally, what are periods of “high network congestion?” If Comcast’s network could handle more traffic, there’d be few times of the day with congestion. But when you have a crappy network, “network congestion” is “always-on.”

We’ve seen no evidence that Comcast is only blocking during periods of congestion. We’ve seen Comcast blocking any time and at random — even attempts to upload small files such as the King James Bible.

Also, users are also forbidden from — intentionally or unintentionally – “generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information.” This makes no sense. In general, cable users in a local area “share” the same bandwidth, so generating any traffic at all impacts other users trying to use the network.

Let’s be honest — it’s Comcast, not users, impeding other users. Comcast says “network resources are not unlimited.” But it is Comcast that didn’t build a network robust enough to handle how consumers now want to use the Internet. We’ve left the 20th century.

The reality is that Comcast should have invested in a better network with more capacity. It’s time for the cable giant to come clean that what it’s selling isn’t the real Internet — it’s the crippled Comcastic version.

5. Comcast censors free speech.

The “conduct restrictions” in Comcast’s terms of service could fill the syllabus of a law school course on the First Amendment. Comcast forbids users from sending “libelous” or “threatening” material, or material “which infringes the intellectual property rights of any person.”

Another restriction forbids users from disseminating information a “reasonable person” would consider indecent. If the government were imposing these vague, undefined, restrictions, based on a “reasonable person,” the terms would be struck down — with Justices Alito, Thomas, and Breyer arm-in-arm — as flagrant violations of freedom of speech.

But because the government has “deregulated” Internet delivery, private companies like AT&T (which spies on Americans for the government) and Comcast can censor speech. In the words of Supreme Court Justice John Paul Stevens, government cannot “inject federally authorized private censors into forums from which they might otherwise be excluded, and … therefore limit local forums that might otherwise be open to all constitutionally protected speech.”

The bottom line is that we can’t trust Comcast — or any other Internet service provider — with the future of the Internet. And we shouldn’t have to.

Much ink has been spilled over AT&T’s murky proposal to filter copyrighted material through its network on behalf of Hollywood.

The bulk of this reporting has focused on the sheer insanity of the proposal — and the legal nightmare it is sure to bring.

But less discussed — and equally important — are the ways AT&T’s proposed filtering violates the Net Neutrality conditions the company reluctantly agreed to back in December 2006 to seal its mega-merger with BellSouth.

Any way you slice it, AT&T’s filtering scheme spells disaster — not just for the phone giant — but for the free and open Internet we depend on.

No Safe Harbor

As Professor Tim Wu brilliantly articulates in his article “Has AT&T Lost Its Mind?,” AT&T’s filter could result in hundreds — if not thousands — of lawsuits against the phone giant for violating several “safe harbor” provisions.

For roughly a decade, safe harbor protections have shielded Internet service providers from liability for the content they carry over their networks. These provisions treat ISPs as a “passive conduit,” preventing the companies from interfering with — or in some cases having knowledge of — the content flowing through their networks.

Based on what we know today, AT&T’s filtering proposal is sure to violate this carefully crafted protection, making it a best friend of trial attorneys as the company faces off against a flood of legal claims from consumer, free speech and public advocates.

Merger Musts

AT&T’s assent to Net Neutrality conditions in its merger with BellSouth was hailed as a victory for proponents of a free and open Internet — amounting to an admission from the phone giant that Net Neutrality protections are legally relevant.

In total, there were five conditions — each set to expire after 24 months, in January 2009.

AT&T agreed to four Net Neutrality principles promulgated by the FCC in a 2005 policy statement. The statement was put in place to “encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet” by entitling consumers to:

1) access the lawful Internet content of their choice;

2) run applications and use services of their choice, subject to the needs of law enforcement;

3) connect their choice of legal devices that do not harm the network; and

4) competition among network providers, application and service providers, and content providers.

Because of the magnitude of the merger, the Democratic commissioners of the FCC were able to attach an important fifth condition expressly prohibiting discrimination by AT&T:

“AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireless broadband Internet access service…satisfied by AT&T/BellSouth’s agreement not to provide or to sell to Internet content, application provides, including those affiliated with AT&T/BellSouth, any service that privileges, degrades, or prioritizes any packet transmitted over AT&T/BellSouth’s wireline broadband Internet access service based on its source, ownership, or destination.”

In plain language, this last merger condition prevents AT&T from manipulating the delivery of content (made up of individual packets) over its network based on who sent it, who owns the content, and who receives it.

No ‘Fair Use’ Filter

The very first principle outlined by the FCC’s policy statement — and agreed to in AT&T’s merger conditions — states that consumers are entitled to “access the lawful Internet content of their choice.”

Should AT&T devise an imperfect filtering system that misidentifies and blocks legal materials, especially those that qualify under “fair use,” it could very well violate this fundamental Net Neutrality requirement.

The fair use provisions in our copyright law allow consumers to copy or transform a copyrighted work for the purposes of reporting, teaching, research and commentary.

These rules allow people to sample from copyrighted materials to create their own original work. This legal use of copyrighted content is an essential part of the democratic marketplace of ideas — online and off.

But imagine an imperfect AT&T filtering system that cannot distinguish between true copyright violations and those permitted under fair use.

Whether it’s a new mash-up song by Girl Talk, or a viral video containing segments of a copyrighted material (such as Professor Wendy Seltzer’s posting on Youtube of a clip copyrighted by the NFL), AT&T could be in clear violation of Net Neutrality – and its merger agreement – should it block such fair use materials.

Nondiscrimination: The Fifth Condition

Importantly, AT&T’s proposal could violate its fifth merger condition.

Although we know little about the specific types of technology AT&T plans to deploy, it is not difficult to imagine that such technology may “privilege, degrade, or prioritize” packets traveling on its networks to block materials that they consider to be illegal.

In such instances, AT&T violates the fifth Net Neutrality condition because discrimination based on the copyrighted nature of a file amounts to discrimination based on ownership – or lack thereof.

At its very core Net Neutrality means no discrimination. Net Neutrality rules aim to prevent Internet providers from speeding up, slowing down or blocking content based on its author, origination or destination. They protect the consumer’s right to use any legal equipment, content, application or service on a non-discriminatory basis without interference from the network provider.

AT&T’s proposed filtering — with its apparent inability to determine fair use of copyrighted materials — stands in stark contrast to this basic concept.

Kissing up to Hollywood

So why is AT&T doing this? The filtering scheme may be a way for AT&T to cozy up to the content industries in Hollywood in exchange for exclusive distribution rights. In its effort to obtain content for new video services, AT&T will likely be stymied by decades of vertical and horizontal integrations within the broadcast and cable industries.

As the company moves from DSL broadband services to video-enabled broadband, it will be competing against a highly consolidated and self-dealing incumbent that maintains ownership in both production and distribution of content.

Indeed, just last month Time Warner announced that it will start a trial run in Wisconsin to make HBO (owned by Time Warner, of course) offerings available for free to its Time Warner cable or roadrunner.com Internet services.

It’s clear that AT&T has not thought through the consequences of kissing up to Hollywood. It will likely be subject to private lawsuits based on its violation safe harbor provisions. It will also draw additional regulatory and congressional scrutiny based on violations of Net Neutrality.

Moreover, as users seek to maintain some semblance of privacy, the filtering regime guarantees to result in a global arms race in encryption technology, and increased government spying on Internet traffic for supposed law enforcement purposes.

Perhaps that is the reason why Verizon is resolutely opposed to copyright filtering on its own networks. Its lawyers have done their homework.

Yesterday, the air that surrounds us became cleaner in a way.

The bidding on licenses to a chunk of the wireless spectrum hit its $4.6 billion minimum — triggering a set of open access conditions that will allow wireless Internet users to connect any device or application using these airwaves.

The Mobile Web: Open or Closed?

This marks as significant shift from the “walled garden” model that has dominated wireless networks in America.

Dirty Air

Carriers have long prevented people from taking their cell phones or mobile Internet devices with them when switching providers; they have also blocked or crippled new applications on these gadgets exacting extortionate fees from providers and customers in order for them to function.

Meeting the minimum bid is a small but not insignificant victory, according to Ben Scott policy director of Free Press, but just the latest skirmish in the mega-battle to keep Internet net open to all users and closed to gatekeepers.

“This is just the beginning,” Scott said. “This auction signals that the Internet marketplace — and the public polices that shape it — should now move decisively toward universal openness.”

Opening the Rest

The 22 Mhz band to which these rules will now apply (known in tech circles as the “C Block”) represents only a small slice of the airwaves over which wireless communications travel. For the majority of cell phone and wireless Internet users the new rule will have little impact unless it’s used as leverage to open the rest of the spectrum.

“If open devices and applications are good for consumers in the networks built on 700 MHz spectrum, why not for all mobile networks?” Scott asks. “These conditions should be applied across the board so that consumers can benefit immediately from more choice and competition.”

No matter who wins the C block, the auction should be a catalyst for a new and expanded fight — especially if, as expected, AT&T and Verizon snag the lions share of the national licenses that are available.

Losing the ‘Third Pipe’

When this auction was first proposed at the FCC, one of the agency’s stated goals was to bring a new broadband competitor – a “third pipe” — into a marketplace still controlled by the cozy cable and phone duopoly.

At present more than 96 percent of home high-speed Internet connections are controlled by either a phone or cable provider. And in the majority of markets you are lucky to have more than these two choices for a connection. (These stats are particularly worrisome when you take into account plans by the largest cable and phone companies to filter content and deny services at will.)

If a phone incumbent like AT&T wins these licenses, all efforts to inject competition into the U.S. market will have failed — as the phone giant is unlikely to introduce a wireless broadband product that cannibalizes the market for its legacy DSL networks.

The War Against Gatekeepers

At the moment there’s an effort to petition the FCC to open all wireless airwaves in this way — not just the C Block. Winning this is critical.

We have already shown that a well mobilized public can force open a slice of the marketplace that’s been the exclusive domain of the carrier cartel. We can now do more to open the rest of it.

This is more than an exercise in public policy, it’s a battle over the fate of digital media.

The Internet of the future — one where most of us get online via a wireless connection — could be a lot less free than it is today if we simply settle for the status quo of almost complete carrier control.

The challenge for us is how to leverage this small success in this particular battle into momentum and advantage in the larger war against the gatekeepers.