Thanks!

Will Mike McCurry be called as a witness for consumers in their class action lawsuit against Comcast for blocking and degrading its broadband customers’ access to legal Internet content downloaded via BitTorrent?

Here’s why I ask: in response to my earlier Huffington and SaveTheInternet blog post, Does Big Media’s One-Two Punch Knock Out the Internet?, “Hands Off the Internet,” the mega-bucks anti-Net Neutrality lobbying group co-chaired by McCurry and funded by Verizon, AT&T, etc., writes:

Jonathan Rintels writes this week at SaveTheInternet that Net Neutrality is “a requirement that broadband Internet consumers be permitted to access the lawful content of their choice.” We agree. But if that’s the definition, then this Net Neutrality fight is over since consumers already have that right.

But Comcast was caught red-handed blocking and degrading ALL content using the BitTorrent service, including a file containing the very legal, public domain, un-pirated King James Bible, as well as legit un-pirated legal video from Big Media stalwarts Viacom, Fox, Warners, and others.

It’s not very comforting that McCurry’s “Hands Off the Internet” now claims that consumers already have the right to access the lawful content of their choice over the broadband Internet, so that additional government consumer protection is not needed, when Comcast’s actions so obviously demonstrate the very opposite.

What Comcast did to BitTorrent proves that without further government action to mandate Net Neutrality, consumers are at the mercy of the broadband ISPs and do not have the right to access the lawful content of their choice over the broadband Internet.

So, if McCurry is called to testify on behalf of consumers’ rights in their class action against Comcast, would he be what lawyers call a “hostile witness?”

OK, that may sound like an exaggeration. But next week the Federal Communications Commission is coming to the Boston area — Cambridge, to be exact — for an important public hearing on what the next generation of the Internet will look like.

The hearing is part of the FCC’s ongoing investigation into Comcast’s blocking of Internet traffic. But there’s much more at stake. We are at a critical juncture where it will be decided whether we have a closed Internet controlled by a small handful of giant corporations, or an open Internet controlled by the people who use it.

Comcast wants the former — to dictate which Web sites and services go fast or slow or don’t load at all. And they’re backed by the other would-be gatekeepers at AT&T, Verizon and Time Warner.

Boston, We Have a (Broadband) Problem

In recent months, these cable and phone companies have repeatedly been caught blocking, filtering, and spying on consumers’ Internet activities. If we let them get away with this, these powerful companies will continue to roll back our freedoms whenever we go online.

That’s why it so important for those of us who want the free and open Internet to stay that way — especially if you live in New England — to show up at Harvard on Monday. Here are the details we know so far:

WHAT: A Public Hearing on the Future of the Internet
WHEN: Monday, Feb 25, 2008
TIME: 11:00 a.m. to 5:00 p.m.
WHERE: Harvard Law School, Ames Courtroom, Austin Hall
1515 Massachusetts Avenue, Cambridge, MA 02138

We’ve set up a Web site at www.savetheinternet.com/=boston where you can find directions, sign up for more information, and use our automated system to tell your friends about this event.

We’ll update that page — and the blog — with more details about speakers and public involvement as soon as we have them. But since we can’t count on the FCC to publicize this event, we’ll have to start spreading the word ourselves.

Show up. Speak up. And let’s hope this important hearing in Massachusetts is just the beginning of a national conversation that spreads to every town and city across the country.

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.”

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.

During a panel discussion at the Las Vegas Consumer Electronics Show, AT&T’s top lobbyist said the company was ready to implement new technologies that would allow it to inspect and filter Web traffic.

James Cicconi, AT&T’s senior vice president for external and legal affairs, said that the time was right to start filtering for content at the network level. “We think a network-based solution is the optimal way to approach this,” Cicconi said, according to a New York Times reporter who attended the panel.

It’s no secret that major ISPs have been working with technology companies such as Cisco to filter content with deep-packet-inspection software. Last year, AT&T revealed its plans to work with MPAA, RIAA and broadcasters to use and deploy “digital fingerprinting techniques.

According to public statements, their rationale for playing traffic cop is to ferret out pirated content: sniffing through our digital packets for material that infringe on copyright.

Can You Trust the Filter?

But the technology can be used for other purposes, and the phone giant has shown that it has no qualms invading our communications to hand over our private records to government, or censor speech or block services “without prior notice and for any reason or no reason.”

AT&T has also touted plans to become gatekeepers to the Web with public relations bromides about “shaping” Web traffic to better serve the needs of an evolving Internet.

In reality, Cicconi and his cohorts within the entertainment industry are waging a quiet campaign to control how video and other rich content gets distributed via the Web. The popular trend in video, however, is streaming in the opposite direction. More and more people are becoming their own creators and distributors of homespun video content. YouTube now boasts more than 100 million views each day, but it is just the beginning of this revolution.

Peer-to-peer traffic is spreading via popular technologies like BitTorrent and Gnutella, which allow users to upload and share videos, music and other rich media without a middleman or content gatekeeper. The bulk of this traffic is legal.

Peer-to-Peer Traffic ‘Not Acceptable’

Also at the Las Vegas panel was NBC Universal’s general counsel Rick Cotton, who told the Times that the volume of peer-to-peer traffic online was “overwhelming.”

“That clearly should not be an acceptable, continuing status,” Cotton said, and AT&T seems more than happy to step in.

These executives’ vision of a better Internet — AT&T’s “Your World Delivered” — is not one that is shared by the more than 1.5 million people who have spoken out in favor of a neutral, open and free-flowing Internet.

For us, the Internet isn’t about one company delivering our world or filtering our content. It’s about simply offering a high-speed connection at reasonable rates — and then getting out of our way.