When It Comes to Net Neutrality, the Future of Filtering Is Up for Debate

600px-US-FCC-Seal.svgThe FCC has yet to issue a Notice of Proposed Rulemaking (NPRM) formally kicking off the process of writing and promulgating net neutrality regulations, but the battle over the scope of the new rules is already well underway within media and technology circles in Washington, D.C. At the Future of Music Coalition Policy Summit on the campus of Georgetown University on Monday, for example, panelists clashed over whether the agency will or should allow, or even mandate, the use of deep packet inspection (DPI) and other invasive techniques to block the illegal transfer of copyrighted content over broadband networks.

“The devil is certainly going to be in the details,” Hal Ponder, director of government affairs for the American Federation of Musicians, said. “I don’t know if there’s a technical solution but I think everything needs to be explored, including filtering, because we do want to see artists’ work protected.” The AFM officially supports the principle of net neutrality, Ponder said, but insists that any new regulation permit the use of technical measures to protect copyright.

But there were numerous skeptics of filtering, the loudest being Harold Feld, legal director of Public Knowledge, a non-profit public interest group that has frequently sparred with copyright interests. The problem, he said, is that there’s a culture of user behavior and there’s a culture of regulatory behavior, and the two are completely disconnected. “If you introduce filtering, or require filtering, people will find a way around the filtering,” he explained. “They’ll start encrypting content so the filters can’t detect it, or they’ll find some other way. Then you’ll have people coming to Washington saying we need to make it illegal to find a way around the filters and that somehow that will solve the problem. That’s exactly what we did in 1998 when we passed the [Digital Millennium Copyright Act], which made it illegal to get around DRM. Does anyone think piracy disappeared in 1998?”

The real issue, Feld insisted, is not whether copyrighted works should be protected against piracy, but whether users of digital networks should be subjected to the sort of intimate and intrusive monitoring of their behavior that filtering would require. “How comfortable would you being having someone listen in to all of your phone conversations?” he asked. “Because that’s really what you’re talking about with DPI: someone listening in on everything you do online and monitoring your behavior.”

In a brief keynote address, FCC chairman Julius Genachowski himself shed little light on how — or even if — the agency will address the use of DPI or filtering. “Openness and respect for copyright can and must coexist,” he said, reiterating comments he made to the Brookings Institution two weeks ago. But he said nothing about how the FCC will seek to balance those priorities.

Daniel Klein, media accounts director for London-based cyber-security firm the Detica Group, cautioned that banning the use of DPI would be counterproductive, arguing there are parts of the technology that are incredibly useful. Ultimately, Klein said, the question of filtering isn’t technological, but behavorial. “The day we start blocking [content] people will change their behavior. They’ll start encrypting or whatever. Encryption is a very real fear. If you want to affect piracy you really have to focus on the behavior.”

According to Klein, less is known about aggregate online behavior than could or should be, in part because firms such as Detica Group that could measure it fear being drawn into a dispute over filtering. “Nobody in the world is measuring what is actually going down the pipe because they’re terrified of the filtering side of the debate,” he said. “The truth is that could provide very valuable information to the industry and to artists about what people are really doing with the content so that they might be able to respond in some way other than filtering. You really need to separate the question of measurement from the question of how you respond.”

Whether the FCC will be able to keep those issues separate in setting net neutrality rules no one yet knows. The agency plans to publish its NPRM in the Federal Register later this month.

Paul Sweeting writes The Media Wonk blog and is author of an upcoming report on the e-book market for GigaOM Pro.