Senate passage of stimulus bill could fuel latest broadband debate

If you receive government money to build a broadband pipeline for rural areas, do you have an obligation to remain open to all customers? Or to make yourself closed to certain ones? It depends on your definition of "open."

The latest version of the President's economic stimulus package passed a US Senate vote this afternoon, though not without some trimming of its projected expenditures. As a result, the projected $9 billion annual allotment (originally $6 billion) for funding the expansion of broadband service in rural areas, was trimmed to $7 billion, according to Broadcasting & Cable.

Companies that would qualify for their share of funding would likely have to observe certain open access restrictions, meaning most likely that grant recipients would be disallowed from restricting service, including to competitors. The rules themselves have actually yet to be written; Congress will rely on the Federal Communications Commission to fulfill that role.

But that did not stop some senators from trying to put their spin on the concept through amendments. Though the full list of approved amendments has not yet been reported (there were 438 already entered into the Library of Congress database as of Tuesday afternoon, and that's not all), one that may have passed this afternoon was submitted by Sen. Dianne Feinstein (D - Calif.). That amendment would authorize the Assistant Sec. of Commerce to prohibit grant recipients from allowing their network to be used for certain illegal purposes.

"In establishing obligations under paragraph (8)," an early draft of the Feinstein amendment reads, "the Assistant Secretary shall allow for reasonable network management practices such as deterring unlawful activity, including child pornography and copyright infringement."

The text of that amendment does not currently appear in the record for the bill itself, though bills like H.R. 1 with hundreds of amendments often take time to process. Though he mis-quoted a very critical term used in the bill (confusing "practices" with "techniques," for which the distinctions have been debated in the past), Public Knowledge member attorney Alex Curtis this afternoon warned that the Feinstein amendment could lead to grant recipients using all kinds of filtration techniques to comply with this directive, and notes that such techniques rarely turn up copyright infringers.

"It [the amendment] would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause," Curtis wrote. "That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online."

Meanwhile, House leaders who are now receiving the Senate's version of the stimulus bill, and are beginning debate on reconciliation, have petitioned House leadership this afternoon, including Speaker Nancy Pelosi (D - Calif.), to keep that provision in the bill, on the theory that it will create new jobs in the infrastructure sector.

As Rep. Zack Space (D - Ohio) wrote, "While some have argued broadband expansion provisions will not generate employment opportunities, improved access to broadband has been proven to create jobs. A study performed by Connected Nation earlier this year suggests that enhanced access to broadband could create or save more than 2.3 million jobs, and offer a payout of more than $134 billion annually." Space's letter was co-signed by 28 other representatives, including Rep. Rick Boucher (D - Va.), who leads the newly reformed Subcommittee on Communications, Technology, and the Internet (minus intellectual property).