Uncle Sam and Ma Bell Further Joining Forces?

At the Consumer Electronics Show last week, top executives from media giants AT&T, NBC/Universal and Microsoft announced that ISPs may be ready to start filtering for copyrighted content at the network level.

But, checking for copyright violations at the network level may end up meaning a lot more high-level snooping at many other types of content as well. To try to catch that potential copyright infringement, companies will likely engage in some significant "packet sniffing."

To packet sniff, companies install a monitoring device on the internet traffic stream and take a peek at all the content that flies by. It has a benign use as a network administration tool, keeping tabs on the flow of internet traffic and trying to resolve potential problems and delays with service. However, it is also possible to use the tool to delay or stop peer-to-peer communication and other kinds of traffic that a company may determine is "controversial."

Packet sniffers, among other tools, may be used to prevent the distribution of content that makes fair use of copyrighted material. Recently, Viacom demanded the removal of a YouTube video that parodied the Colbert Report., but later admitted it made an error and endorsed manual review of potentially infringing content – but only after being sued by the film's creators and MoveOn. ACLU, EFF, and other groups recently released fair use guidelines for user-generated video content.

We are already seeing companies trying to choke off access to information. Late last fall, it was discovered that Verizon had rejected a request by NARAL's Pro-Choice America to make a text-message advocacy campaign available on Verizon networks, saying that it reserved the right to reject programs that may be considered "controversial or unsavory". In addition to discouraging certain content, ISPs may interfere with certain types of packets, such as those carrying VOIP (Vonage, Skype) or peer-to-peer (GnuTella, BitTorrent) files. More recently, Comcast was accused of blocking BitTorrent traffic on its network – an investigation of the activity has just been launched by the FCC.

AT&T allegedly has a secret room where they siphoned off the telecom traffic of millions of innocent Americans and shuttled it to the NSA, details that only saw the light of day due to the lawsuits filed against AT&T by the ACLU and EFF.

And in a just published interview in the New Yorker, Director of National Intelligence Michael McConnell argues that the NSA must have and exercise the ability to filter all Internet traffic in the U.S. to prevent cyberspace attacks. As Columbia Law Professor Tim Wu recently said in a New York Times debate with Rick Cotton of NBC/Universal, "Tolerating the routine inspection of all content, in the search for forbidden content, is a fast road to a private police state."

Government surveillance systems in countries such as China, Saudi Arabia and Burma are used to track and impede the online activities of those countries' critics.

The ACLU has firmly advocated for "net neutrality," a free and open internet with no discrimination based on the type of packet or the status of the sender. See our October blog post and our Internet free speech page. Last year, the ACLU campaigned for the Internet Freedom and Nondiscrimination Act, which would have made it a violation of the Clayton Antitrust Act to discriminate web traffic based on the prices customers pay. Unfortunately, the bill failed a vote that fell largely along party lines.

Since then, all of the Democratic presidential candidates have endorsed net neutrality and it promises to be a key issue in the coming election. Clinton, Obama, and Edwards have all issued strong statements in support of net neutrality.

The issue of net neutrality, like the internet, is international in scope. The Index On Censorship, a UK-based journal, has just published an issue that focuses on free speech online from a multi-national perspective. Companies and the government are now trying to reformulate the internet to stifle free expression and access to information, using technology to try to control what we do and what we read. For example, China has moved to tightly restrict video-sharing sites by requiring web companies that provide such services to be state-owned or state-controlled and to be licensed by the government. Index examines the explosion in communication, the rise in new forms of censorship (and the ways to get round them) and the impact on social attitudes.

If you are interested in net neutrality and are in the Bay Area on January 26th, USF Law School is having a symposium on the issue. The deadline to register online is January 21, 2008.