Congress Is Lovin’ the Internet…to Death?

By Eric Goldman

Congress has an unresolved love-hate attitude towards the Internet. Through the 1990s, Congress frequently said that the Internet should be left alone from a regulatory standpoint. Indeed, in some cases, Congress affirmatively deregulated the Internet; 47 USC 230 and the Internet Tax Freedom Act come to mind.

However, Congress is irresistibly drawn to Internet regulation. Every Congressional session, members of Congress propose literally hundreds of laws to regulate some aspect of the Internet. Obviously, not all of these laws pass, but the sheer volume is evidence of the seductive lure of Internet regulation. Congress just can’t control itself!

I was working through the piles on my desk yesterday and I came across three recently proposed laws that demonstrate this irresistibility. All three laws reflect legislative opportunism to capitalize on hot media issues; all three laws reflect a certain idealism for how markets should function; and all three laws would have radical (and possibly crippling) effects on the Internet.

1) Eliminate Warehousing of Consumer Internet Data Act of 2006, HR 4731 (Introduced Feb. 8 by Rep. Markey).

Rep. Markey promised this law in response to the DOJ-Google flap. The premise is simple enough: online companies should flush their databases of personal data so the DOJ can’t abuse its power to get that data. This animating principle translates into the following operative provision:

“An owner of an Internet website shall destroy, within a reasonable period of time, any data containing personal information if the information is no longer necessary for the purpose for which it was collected or any other legitimate business purpose, or there are no pending requests or orders for access to such information pursuant to a court order.” The definition of personal information is suitably broad–first/last name qualify, as does an email address.

I don’t like this law’s expansive sweep. It would govern many seemingly-unimportant websites, such as my blogs (which allow users to submit both their first/last name and their email addresses). In some cases (like mine), I can’t flush personal data because it’s in the hands of my service providers.

Further, ironically this law doesn’t even correct the DOJ-Google situation. First, the data requested by the DOJ wasn’t personal data as defined by the law. Second, and more importantly, Google arguably has a legitimate business purpose to keep every scrap of data it ever lays its hands on (after all, how can you organize the world’s information if you have to flush some of it down the drain?). Given that many businesses can claim a continuing benefit from keeping personal data, this law won’t get that data flushed. Instead, I think it merely creates weird/unexpected technical headaches.

2) Internet Non-Discrimination Act of 2006, S. 2360 (Introduced March 2, 2006 by Sen. Wyden)

This law follows on the hot topic of net neutrality, or a “two-tier” Internet, which is also linked to AOL’s implementation of Goodmail’s certified email program. The law’s basic premise is simple: data transit vendors should not discriminate between bits—each bit should get processed equally. This gets codified in a list of restrictions about the products/services that a covered entity can (or can’t) offer.

I’m dubious about the theoretical underpinnings of this law, but for now my objection to the law is far more tactical. The law restricts the behavior of “network operators,” which is anyone who “provides communications directly to a subscriber.” I think the law was intended to govern the provision of Internet access/connectivity. But, as drafted, I think the law covers everyone who moves data from one point to another–this should include every website that provides user-to-user communication, including email service providers, instant message providers, blog providers, “email this page to a friend” providers, etc., etc. In other words, virtually the entire Internet.

This drafting error is, in theory, fixable. The law could just define the covered entities as Internet access providers more carefully. However, I don’t think this is an easy fix. I think there is no clear distinctions between the various “layers” (content v. application v. transport); at least, the distinctions aren’t definable statutorily.

Worse, it significantly restricts beneficial intermediary behavior, such as blocking incoming spam. The law acknowledges this consequence and says that the governed entities can block spam if the consumers are notified and have a chance to disable the application. So whereas AOL might kill almost all incoming spam at the server level, the law would take this choice out of AOL’s hands. I’m not sure what consequences result from that, but my heart tells me it’s expensive for AOL/the consumer and it could lead to weird and unexpected results.

In effect, this law would place most of the Internet under the oversight of an administrative agency (the FCC). The Internet had thrived without FCC oversight for a while now. I’m having a hard time believing that turning the Internet into a comprehensively-regulated industry would be a good thing.

3) Global Online Freedom Act of 2006, HR 4780 (Introduced Feb. 16, 2006 by Rep. Smith).

This law builds off the Google/Yahoo-China flap. It has various proposals designed to get China and other repressive countries to stop censoring Internet content.

Specifically, the law would create a new administrative agency called the “Office of Global Internet Freedom.” This title alone is disconcerting; it sounds like something out of Orwell or Kafka. Indeed, like any good dystopian view of bureaucracy, the OGIF would free the Internet by telling its citizens what they can’t do.

In this case, the OGIF would help generate a list of bad censorship-loving countries. On the initial list are China, Iran and Vietnam. All US search engines or content hosts cannot locate those functions in the bad countries. (Note that the definition of search engines or content hosts covers anyone who has a search tool on their website or permits users to generate content). Search engines also cannot change their filtering based on requests from bad countries. Content hosts also can’t help “Internet jamming” and can’t disclose personal data at the request of bad countries.

This law seems terribly misguided. It’s as if Rep. Smith thinks that Google is so amazing that countries will change their censorship laws just to get Google’s services. But we know better. Chinese entrepreneurs will have no problem providing competent yet censorable search services. I’m sorry to be the bearer of bad news, Rep. Smith, but embargoing Google isn’t going to bring down the current Chinese government.

Meanwhile, this law represents a dangerous step towards government regulation of search engine operations. I know that pro-regulation forces would love to have the chance to regulatorily inculcate their normative values into search engine algorithms; this law represents a first step along that path. However, I think there’s little chance that government fiat will improve search engine coverage or relevancy. Instead, I think there’s a much better chance that government intervention in search engine operations will degrade search engines’ usefulness to consumers.

Conclusion

Reading these 3 laws in succession, two 1980s songs came to mind. First, Congress “just can’t get enough” regulation of the Internet. However, “If you love somebody, set them free.” We’ll see just how much Congress loves the Internet as it wrestles with these bills.

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