Innovation, the Open Internet, and the Next President

The “open” nature of the Internet is a core issue for CDT – just check out the tag line right next to our logo. It should be a cornerstone of the next president’s Internet-related policy as well. First things first: What does the term “open” even mean in this context? Above all, it means that the Internet has minimal entry barriers and no “gatekeepers” controlling what is allowed or how services or technologies must be designed. Users can communicate with whomever they choose, in whatever manner they choose. And because the technical protocols are standardized and public, anyone with a good idea can create a new service or application and offer it to a worldwide audience, without needing permission from network operators or governments. This “open” architecture is what has enabled the Internet to foster such tremendous innovation. It empowers and harnesses the creativity of millions of decentralized users, from major corporations to dynamic startup companies to individual inventors and students. They all have a chance to give their ideas a shot – because nobody dictates which new services or technologies will be allowed or how those technologies must be designed. So what does this mean for the next president? How can the president ensure that this powerful engine of innovation keeps humming?

The good news is, there’s no need to reinvent the wheel. The open and innovation-fostering Internet isn’t some abstract ideal or ambitious new design. It’s essentially the way things work today. The bad news is, there are multiple pressures to scale back or significantly modify the Internet’s open model, in favor of more centralized control. For example, major operators of consumer broadband networks have expressed interest in selectively prioritizing traffic in order to manage congestion or build new business models. Advocates for copyright holders, justifiably concerned about the risk of widespread infringement, argue that network operators should be required to police their networks and exert more centralized control, or that governments should impose technical design mandates aimed at combating infringing traffic.

The FCC has moved to impose constraining design mandates in the name of ensuring intercept access for law enforcement and a robust 911 system. In all of these cases, the goals may be legitimate, but the impact on openness and innovation is too often overlooked. It falls to the next president to ensure that the Internet’s openness is not an inadvertent casualty of other policy fights or initiatives. Maintaining a regulatory and technical climate that promotes and protects innovation should be a key goal, not just an accident or afterthought.

Who’s in Charge?

One of the new president’s first tasks will be to select top officials for executive branch positions. The FCC, the FTC, DoJ, NTIA, and the new Intellectual Property Enforcement Coordinator (created by recently passed legislation) all will have a hand in policies with potentially significant impact on the Internet. All should be led by officials with a keen understanding of the unique benefits of the open Internet and the costs of technology mandates.

Where’s the Authority?

In the absence of any oversight, there is a risk of creeping gatekeeper control by major network operators. The next president should take a leadership role in resolving the ongoing dispute about what kind of government oversight applies.

The FCC recently appointed itself as the cop on the beat, issuing a ruling sharply critical of Comcast’s discriminatory treatment of certain P2P traffic. But that decision (now on appeal) asserts a dangerously elastic concept of FCC regulatory authority over matters related to the Internet. If the FCC is going to have a role here, both the scope of its authority and the policy it is charged with implementing should be carefully delineated. Unguided regulatory discretion leaves the door wide open to future regulatory mischief. The next president should seize the opportunity presented by current uncertainty regarding the scope and future effect of the FCC decision. Specifically, the president should spearhead legislation granting narrowly focused statutory authority to the FCC. The right kind of legislative proposal could safeguard the Internet’s traditional openness, provide greater certainty to broadband providers, and protect against the risk of future regulatory excesses. The president should move to resolve this issue quickly, while the legal status quo remains unsettled and gives all parties some incentive to compromise.

Don’t Go There

The next president also needs to know what not to do.

Everyone gets frustrated with the Internet sometimes; its openness produces not just innovation and progress, but also a great deal of unruly, distasteful, or outright malicious activity. Clearly, government should pursue any bad actors who use the medium for illegal purposes. But the president should firmly resist the temptation to try to make the Internet a more controlled environment. In particular, the president should oppose government mandates relating to the design of technology. Technology design mandates are likely to be inflexible, can quickly become outdated, and discourage innovation. Even when the underlying goal seems laudable, they should be resisted. The president also should avoid new copyright policies that fail to protect emerging forms of free expression in the digital realm.

Copyright holders have legitimate fears about large-scale infringement, but current law already provides creators with a strong set of rights and enforcement tools. Meanwhile, limitations to copyright, including fair use, provide crucial breathing room for online innovation and expression. Proposals that focus solely on expanding copyright rights or remedies will not strike an appropriate balance and will undermine the Internet’s openness. Finally, the president should oppose efforts to impose burdensome new legal responsibilities on network operators to police their networks. Some European countries have been considering enlisting ISPs to root out copyright infringers. But making ISPs responsible for monitoring and policing their users’ traffic would be a major change in the role of ISPs and the architecture of the network. The more ISPs are made responsible for controlling what users do, the less open the network will be. If the next president wants to encourage innovation, preserving the open character of the broadband Internet should be a top priority, right up there with the commonly cited goal of continuing to improve the nation’s broadband infrastructure.

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