Five Things to Watch That Will Shape the Internet's Future

June 2, 2010— -- We live in an ever-smaller world. Modern communications and information technologies instantly allow us to know what is happening, literally, on the other side of the world. And if motivated, we can participate in a global discussion never before possible. Revolutions, natural and man-made disasters, reunions with old friends and clips of talking dogs all stream through our consciousness in an "all the news that fits in 140 characters" kind of way.

Sorting through today's informational fire hose to find what is relevant is difficult enough; trying to sort through the myriad of legal and policy issues that arise from this disruptive technical environment can be overwhelming. Yet, at any time, critical issues with the potential for major impact on how we use the Internet today are winding their way through our courts, legislatures and regulatory bodies.

Although these issues don't make news every day -- they aren't as sexy or as easy to understand as the saga of the next generation iPhone found abandoned on a bar stool -- the resolution of the five issues outlined below will shape the Internet's future. Here is a quick rundown of five things to watch that will shape the Internet's future:

What Happens If Viacom Wins Suit Against YouTube?

Issue: Viacom v. YouTube Currently in Federal Court

Narrative: In March of 2007 Viacom hit YouTube with a $1 billion lawsu alleging that the newly acquired Google property had violated Viacom's copyrights because it housed pirated clips of TV shows uploaded by YouTube users.

What's at Stake: YouTube and a host of public interest groups argued to the court that a provision of the copyright law called Section 512 provides a solid and defensible "safe harbor" for companies that house user-generated content. This means that sites like YouTube, MySpace, Facebook, Flickr, eBay and scores of others can't be held responsible if a user of these services uploads something that infringes on someone else's copyright.

Congress specifically intended Section 512 to provide clear and unambiguous legal footing for these companies, which in turn would allow them to stimulate growth of new platforms for speech and e-commerce and develop innovative services.

Section 512 says that if a service meets certain requirements, such as taking down specific infringing content when notified about it, the service can't be held liable for monetary penalties. This part of the law has played a powerful, albeit underappreciated, role in the explosive growth of innovative services, user-generated content Web sites, social media networks and cutting-edge communications tools, from YouTube to Facebook to Twitter.

If Viacom ultimately prevails, the impact on the Internet as we know it today would be devastating. Current services would wither and die from the soul-numbing work of having to clear each piece of user-uploaded content against possible infringement before it goes public (YouTube alone receives about 200,000 new videos a day), while entrepreneurs and innovators wouldn't move their ideas beyond the "back of the envelope" stage because of the toxic online legal environment.

For Internet users, the end result would be the loss of the empowering tools and platforms that have driven the unprecedented explosion in individual free expression, creativity and collaboration. What's dangerous here is that the arguments Viacom offers for nixing YouTube's safe harbor protection would likely exclude virtually all other user-generated content sites as well.

Does Fourth Amendment Apply to Text Messages and E-Mail?

Issue: City of Ontario v. Quon, pending in the Supreme Court

Narrative: A police officer used a police department communications device to send personal text messages. When the police department obtained the messages from the service provider to determine the extent of the officer's personal use of the device, the officer claimed that the police department had conducted a search that violates the Fourth Amendment.

The officer and the police department disagree about whether the department's Internet use policy, and its implementation of that policy, undermines the officer's expectation of privacy in those text messages.

What's at Stake: Text messaging and email are rapidly taking the place of voice calls as the communications means of choice; however, it's not settled whether the Fourth Amendment's privacy protection extend to these modern communications. If the Fourth Amendment does apply, the government may not obtain those communications without a warrant.

If the Court determines that such information is not constitutionally protected, email and text messages would still be protected by the Electronic Communications Privacy Act, but the level of protection would be less than it is for phone calls and Congress could become less likely to increase those protections, leaving our digital privacy at risk.

Although this case involves a government employer, many private employers permit employees to use company cell phones for personal use. CDT and other like-minded public interest groups jointly filed a "friend of the court" brief urging the court to take care to limit its ruling to the government employer context.

A private employer's monitoring policies should not eliminate any reasonable expectation of privacy that an employee has against warrantless surveillance of employee's written communications.

Issue: Baseline Consumer Privacy Bill

Narrative: After a year of anticipation, Rep. Rick Boucher, Democrat of Virginia, chairman of the House Communications, Technology and the Internet Subcommittee, has released draft privacy legislation that proposes a baseline of privacy protections for data collected both online and offline. Boucher's office is currently accepting feedback on the draft.

What's at Stake: Despite the unprecedented challenges to privacy in today's digital world, the United States still has no comprehensive law that spells out consumers' privacy rights in the commercial marketplace. Instead, a confusing patchwork of distinct standards has developed over the years, with highly uneven results and many gaps in coverage.

For example, while there is a strong privacy law that protects your cable viewing habits, no such law protects records of what you buy online. And while FCC rules offer protections against your mobile phone company selling the location data it has on you (from tracking your cell phone all over town, and beyond), no comparable rules exist for the same information collected by other services such as social networks or advertising networks.

Americans are storing more and more information online as compelling new applications and services launch in the Internet "cloud" where privacy protections for all that information is murky at best.

The lack of privacy protection undermines trust online and creates market risks for the very companies seeking to capitalize on innovative services. Study after study has shown that consumers do not understand how their data is used under these new models -- and when they find out, it is cause for great concern. Research shows that people value their location privacy, are less comfortable sharing their location with strangers than with acquaintances, and want granular control over their location information.Done right, baseline privacy legislation will spur both company innovation and consumer investment in Web 2.0 products and services by clarifying the general rules for all parties, while leaving key existing "sectoral" (i.e., health, finance, personal banking) protections in place. Those laws provide specific and fundamental protections for consumers that no single piece of legislation alone can replace.

Should Internet Service Providers Become Copyright Police?

Issue: Three-Strikes Copyright Enforcement

Narrative: Recent Internet copyright debates have tended to focus on strategies for enforcement against illegal file sharing of music and movies. The most controversial strategy reverberating around the globe is the so-called "three-strikes" or "graduated response" enforcement policy.

Under legislation adopted in France, Britain and South Korea, Internet Service Providers (ISPs) could be directed to cut off Internet access for users engaged in apparent copyright infringement activity. And there are widespread reports that representatives of major copyright industries are engaged in private negotiations with U.S. ISPs to implement similar policies.

What's at Stake: The Internet is essential for many aspects of everyday life -- many couldn't imagine finding a job, communicating with family or accessing key government services without it. Policymakers and ISPs considering a three-strike approach must recognize the serious impact on lawful speech and participation that disconnecting someone from the Internet would have. Quite simply, Internet access has become too important for disconnection to be imposed without a full judicial process.

More broadly, moving to an online copyright enforcement regime that puts ISPs into the copyright police role would mark a major shift in U.S. Internet policy. The Internet has flourished under the current "hands-off" role for ISPs and other intermediaries, which allows them to focus on empowering communications by and among users without monitoring, supervising, or playing any other kind of gatekeeping role with respect to such communications.

Illegal file sharing is wrong; however, moving ISPs into an enforcement role could significantly restrain the development of the Internet as a platform for speech and innovation.

Issue: Preserving the Open Internet

Narrative: The FCC has proposed non-discrimination rules aimed at preserving "Internet neutrality." But many broadband ISPs -- backed by a recent court decision in the Comcast v. FCC case -- question whether the FCC has the authority to impose these rules on Internet carriers.

Most recently, the FCC has indicated that it will reverse its prior decision on the regulatory status of Internet access to ensure its rules are on solid legal ground. This is welcome news. People and businesses are relying on the Internet for nearly everything; they need to be able access it on a nondiscriminatory basis.

What's at Stake: Nondiscriminatory access is a key part of the Internet's success story. Openness is the Internet's hallmark; it is based on open standards and protocols precisely so that any speaker -- any innovator -- can communicate or launch a service without negotiating with gatekeepers in order to reach other users.

Without meaningful neutrality rules, broadband ISPs would be free to play favorites with Internet traffic. They could make deals with certain content providers to prioritize traffic, or selectively slow down specific applications. This would be a step backwards for free expression and Internet-based innovation.

At the same time, the rules themselves have to be carefully drawn so that they apply only to the "on-ramps" to the Internet -- the transmission component of broadband access -- and not include Internet applications and services more broadly. In other words, it is right for the FCC to assert authority over the connections and transmission, but not over the content and services that pass over the link; how well the FCC threads that needle remains to be seen.

Leslie Harris is president and CEO of the Center for Democracy & Technology.