NetCompetition

Julian Assange’s reprehensible Wikileaks data breaches of secret, private and proprietary information to the web, endangering lives, diplomacy and peace, has thrust to the forefront of public debate: what are the responsible boundaries of an “Open Internet?”

• It is an especially timely debate given that the FCC is proposing an “Open Internet Order” for FCC decision on December 21st, and given that the FCC is trying to officially define what an “open Internet” is for the first time, in order to restrict what competitive broadband Internet providers can and cannot do.

It is instructive that the term “open Internet” is found nowhere in law.

• Congress officially described the Internet in Section 230 of the 1996 Telecom Act as the “competitive free-market Internet.”
• It is also instructive that the reframe of the “competitive free-market Internet” to an “Open Internet” came about in 2008 with the introduction of a House bill HR 5353 (that never got out of subcommittee,) and also with the launch of the Open Internet Coalition, which is now the lead entity lobbying for telephone utility regulation of competitive broadband companies.
• At core, the proposed Open Internet Order is a bold backdoor attempt by the FCC to redefine what should drive official Internet policy — from Congress’ “competitive free market” policy frame in law, to the FCC’s new and radically different “open Internet” frame in FCC regulation — all outside of the normal constitutional policy making process.

This definitional amorphousness of the central term “open” is problematic because the concepts and terms: competitive, competition, free market, are all well defined, understood and tested in court. On the other hand, the terms “open” or “openness” are completely undefined or tested in a policy making or legal context.

• The practical and legal difficulties of defining the word “open” begin with the stunning fact that the word “open” has no less than 88 definitions per dictionary.com.
  • Yes, that is eighty-eight definitions of “open.”
  • Contrast that with Congress’ term: “competitive” which has only 4 definitions per dictionary.com.
• The practical real world difficulties of specifically defining what “open” means in the context of Internet regulation is profoundly compromised by how bad actors routinely attempt to use the word “open” in order to justify or absolve their bad acts.
  • Wikileaks’ Julian Assange justifies his likely criminal behavior with claims to “Keep Governments Open.”
  • The Open Source software movement birthed by Richard Stallman of the Free Software Foundation is based on the anti-property notion that “being free… means… that you do not have to ask or pay for permission.”
  • Peer-2-peer file sharers who traffic in copyright-infringement, routinely take refuge in the anti-property concept that openness means not having to ask permission for, or pay for, Internet content.
  • Patent violators try to take refuge in the existence of Open Source because somehow it vitiates the property rights of others.
  • The Web 2.0 “publicacy” movement promotes radical transparency, openness, and “data empowerment” over peoples right to privacy — to the point where some recommend the — if you have something you want to keep private just don’t do it — approach.
  • And Level 3-Netflix are pushing the anti-property notion that an Open Internet means that Internet content companies have no responsibility to contribute to the costs that their business imposes on others — an anti-usage-based policy approach that the FCC Chairman recently rejected.

Wikileaks Julian Assange’s definition of open Internet appears to be a universal license to do whatever he wants with others property, secrets, and privacy, ostensibly because he does not have to ask anyone’s permission to do so.

• The very real and incalculable carnage that Assange has caused by his reprehensible irresponsibility shines an important spotlight on the dark side and many serious problems of defining an “Open Internet” with the implicit unaccountability expectation of “no permission required” or “innovation without permission.”
• Unfortunately even the FCC Chairman has fallen prey to using “open Internet” language imprecisely to suggest an unaccountable Internet that I don’t believe reflects the totality of his real views.
• In his remarks announcing the proposed “Open Internet Order” the Chairman said:
  • “It is the Internet’s openness and freedom — the ability to speak innovate and engage in commerce without having to ask anyone’s permission — that has enabled the Internet’s unparalleled success.”
• As we’ve learned from the likely crimes of Wikileaks Julian Assange, a responsible open Internet requires the permission of the Government to use Government property or expose Government secrets.
• As we have learned from the ongoing prosecution of those who infringe on others’ copyrights and property, a responsible open Internet requires the permission of property owners to use their property.
• As we have learned from the constant battle against malware, viruses, spam and scams, a responsible open Internet requires the permission of passwords, authentication and safety checks.
• As we learn how much individuals’ privacy is invaded with routine and pervasive online tracking, profiling and fingerprinting, a responsible open Internet requires permission of users to control their privacy — like the FTC staff proposed Do Not Track list that polls strongly indicate people want to have in order to take control of their privacy online.
• As we learn of Level 3-Netflix’ attempt to extort an unfair and unprecedented economic subsidy under the cover of “openness,” a responsible open Internet requires the permission of Internet “peers” in order to sustain a growing and workable Internet infrastructure with economically viable and workable peering arrangements.

To date two prominent Open Internet Coalition members have responsibly abandoned online support of Wikileaks.

• Under pressure, Amazon has stopped hosting the Wikileaks website.
• Under pressure, eBay’s Paypal has dropped a donation account funding Wikileaks.
• In contrast, the Open Internet Coalition’s three highest profile members, to date have refused to responsibly abandon online support of Wikileaks even after Assange has threatened to release catastrophically destructive un-encrypted “Doomsday” files.
  • Google won’t agree to not allow posting of Wikileaks stolen cables on Blogger.
  • Facebook has said “Wikileaks Facebook page does not violate our content standards.”
  • Twitter when asked if it would “permit the Wikileaks account to remain online,” said they had no comment.
• It appears that the Open Internet Coalition is conflicted and reluctant to support a responsible open Internet where bad actors are held accountable.

In sum, beware of the siren song that an “open Internet” somehow requires no permission.

• It is not true today and it has never been true in the past.
• It is a clever backdoor attempt to politically redefine everything about how the Internet operates and functions for everyone –outside of the normal constitutional policy making process.

Officially defining an “open Internet” in an Assange-endorsing manner where no one needs to ask permission to take things that belong to others — is the antithesis of a responsible open Internet.

• The real policy key to “the Internet’s unparalleled success” has been the fact that since 1996:
  • “It is the policy of the United States… to preserve the vibrant and competitive free market that presently exists for the Internet… unfettered by Federal or State regulation.”