As Vice Chair of GigaNet and a member of the symposium program committee, I am pleased to announce a call for papers for the upcoming workshop on Global Internet Governance: Research and Public Policy Challenges for the Next Decade, scheduled for May 5 and 6 at American University’s School of International Service in Washington, DC.  This will be the Fifth Regional Workshop of the Global Internet Governance Academic Network (GigaNet).

Internet Governance is an international field of scholarship, public interest advocacy, diplomacy, governmental and corporate policy-making, and philanthropic investment. The problem of how or whether we should control or regulate a communication medium that is decentralized and global is critically important to anyone who relies on the Internet to communicate, mobilize political action, run online businesses, purchase products and services or access critical information services.

GigaNet is a scholarly community initiated in spring 2006 in conjunction with the UN Internet Governance Forum. Its four principal objectives are to: (1) support the establishment of a global network of scholars specializing in Internet governance issues; (2) promote the development of Internet governance as a recognized, interdisciplinary field of study, (3) advance theoretical and applied research on Internet governance, broadly defined: and; (4) facilitate informed dialogue on policy issues and related matters between scholars and Internet governance stakeholders (governments, international organizations, the private sector, and civil society).

Building on the success of its first four regional workshops in Paris, France (2008), Brussels, Belgium (2009), Seoul, So. Korea (2009) and Montreal, Canada (2009), the purpose of the Washington, DC regional GigaNet workshop is twofold:

May 5. The first day is dedicated to outreach sessions exploring issues in global Internet governance among policy makers, academics and civil society at large. The goal of the sessions on this day is to facilitate informed dialogue on policy issues and related matters between scholars and Internet governance stakeholders (governments, international organizations, the private sector, and civil society). Issues being considered include but are not limited to governance of critical Internet resources, surveillance and privacy, Wikileaks, copyright protection laws such as the “Combating Online Infringement and Counterfeits Act” (COICA), network transparency and net neutrality. Presenters in these sessions will be invited by the program committee. To propose speakers or ideas, contact any member of the Program Committee listed below.

May 6. The second day features presentations of scholarly research based on a rigorous peer reviewed selection process. The goal of the second day is to support scholarship and advance theoretical and applied research on Internet governance. Scholars are invited to submit 2-page abstracts describing recently completed research or work in progress on any aspect of Internet Governance. In order to provide a survey of current academic activities in the field, share ideas and forge possible collaborations, presentations will focus on problematics, research designs, preliminary empirical results and conclusions in the aim of stimulating reflection and discussion amongst the audience. Any theme or topic relevant to global Internet governance is welcome.

Deadline for abstract submissions is February 14, 2011. Submissions can be made through the Easy Chair web site: https://www.easychair.org/conferences/?conf=giganetdc2011

Decisions will be made by March 15, 2011

Manuscripts expected by April 18, 2011.

Program Committee members include:

-Derrick Cogburn, American University and Syracuse University, Chair

-Milton Mueller, Syracuse University, Vice-chair

-Leo van Audenhove, Free University of Brussels

-Laura DeNardis, Yale University

-Nanette Levinson, American University

-J.P. Singh, Georgetown University

Susan Crawford
Professor of Law, Cardozo University School of Law & President’s Special Assistant for Science, Technology, and Innovation Policy (during 2009)

Frank A. Pasquale
Schering-Plough Professor in Health Care Regulation and Enforcement, Seton Hall Law School

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Jonathan Zittrain
Professor of Law, Harvard Law School | Harvard Kennedy School of Government Professor of Computer Science, Harvard School of Engineering and Applied Sciences Co-Founder and Faculty Co-Director, Berkman Center for Internet & Society

Dawn C. Nunziato
Professor of Law, George Washington University Law School

Meanwhile, net neutrality advocates in Congress are pondering new legislation for two reasons: First, there is a debate about whether the FCC currently has enough authority to enforce a net neutrality rule. Second, regardless of whether the Commission has such authority today or doesn’t, some would rather see net neutrality rules etched into statute than leave them to the uncertainties of the rulemaking process under this and future Commissions.

One legislative proposal comes from Rep. Ed Markey and colleagues. Called the Internet Freedom Preservation Act of 2009, its current draft is available on the Free Press web site.

I favor the broad goals that motivate this bill — an Internet that remains friendly to innovation and broadly available. But I personally believe the current draft of this bill would be a mistake, because it embodies a very optimistic view of the FCC’s ability to wield regulatory authority and avoid regulatory capture, not only under the current administration but also over the long-run future.  It puts a huge amount of statutory weight behind the vague-till-now idea of “reasonable network management” — something that the FCC’s policy statement (and many participants in the debate) have said ISPs should be permitted to do, but whose meaning remains unsettled. Indeed, Ed raised questions back in 2006 about just how hard it might be to decide what this phrase should mean.

The section of the Markey bill that would be labeled as section 12 (d) in statute says that a network management practice

. . . is a reasonable practice only if it furthers a critically important interest, is narrowly tailored to further that interest, and is the means of furthering that interest that is the least restrictive, least discriminatory, and least constricting of consumer choice available.

This language — particularly the trio of “leasts” — puts the FCC in a position to intervene if, in the Commission’s judgment, any alternative course of action would have been better for consumers than the one an ISP actually took. Normally, to call something “reasonable” means that it is within the broad range of possibilities that might make sense to an imagined “reasonable person.” This bill’s definition of “reasonable” is very different, since on its terms there is no scope for discretion within reasonableness — the single best option is the only one deemed reasonable by the statute.

The bill’s language may sound familiar — it is a modified form of the judicial “strict scrutiny” standard the courts use to review government action when the state uses a suspect classification (such as race) or burdens a fundamental right (such as free speech in certain contexts). In those cases, the question is whether or not a “compelling governmental interest” justifies the policy under review. Here, however, it’s not totally clear whose interest, in what, must be compelling in order for a given network management practice to count as reasonable. We are discussing the actions of ISPs, who are generally public comapnies — do their interests in profit maximization count as compelling? Shareholders certainly think so. What about their interests in R&D? Or, does the statute mean to single out the public’s interest in the general goods outlined in section 12 (a), such as “protect[ing] the open and interconnected nature of broadband networks” ?

I fear the bill would spur a food fight among ISPs, each of whom could complain about what the others were doing. Such a battle would raise the probability that those ISPs with the most effective lobbying shops will prevail over those with the most attractive offerings for consumers, if and when the two diverge.

Why use the phrase “reasonable network management” to describe this exacting standard? I think the most likely answer is simply that many participants in the net neutrality debate use the phrase as a shorthand term for whatever should be allowed — so that “reasonable” turns out to mean “permitted.”

There is also an interesting secondary conversation to be had here about whether it’s smart to bar in statue, as the Markey bill would, “. . .any offering that. . . prioritizes traffic over that of other such providers,” which could be read to bar evenhanded offers of prioritized packet routing to any customer who wants to pay a premium, something many net neutrality advocates (including, e.g. Prof. Lessig) have said they think is fine.

My bottom line is that we ought to speak clearly. It might or might not make sense to let the FCC intervene whenever it finds ISPs’ network management to be less than perfect (I think it would not, but recognize the question is debatable). But whatever its merits, a standard like that — removing ISP discretion — deserves a name of its own. Perhaps “least restrictive network management”?

Cross-posted to Freedom to Tinker.