Sleight of Hand or Heavy Handed? Will AT&T’s Pirate-Sniffing Proposal End the Net Neutrality Standoff?

Article ImageNet neutrality advocates are riled up over AT&T’s recent announcement that it may start playing traffic cop, sniffing and snuffing out illegally transmitted copyrighted material sent over its network. But the issues and motives behind the move, like the content in question, are not at all clear-cut, say legal experts.

At a panel discussion on digital piracy during January’s 2008 Consumer Electronics Show, delegates from digital filtering companies, NBC, and AT&T vetted the idea that the time was right for internet service providers to start filtering traffic at the network level for copyrighted content, according to reports.  James Cicconi, AT&T’s senior VP for external and legal affairs, said the company was dissatisfied with the progress of current anti-piracy efforts and had been exploring arrangements with various content companies and technology providers over the previous 6 months to carry out digital fingerprinting of copyrighted material on their network.

Since the announcement, industry pundits and net neutrality advocates have pilloried the idea both as a smoke screen for the company’s true intention—managing the flow of its traffic, much of which is thought to consist of en route pirated material being shared on networks like BitTorrent—as well as just a plain old bad idea, one that could open the carrier to unprecedented legal liability.

Writing in Slate magazine, Columbia University law professor Tim Wu called the plan an "Orwellian” disservice to the public, but also "probably a disaster for AT&T itself." His argument takes root in the idea that phone carriers have traditionally avoided liability for messages they transmit by remaining neutral on them.  By being a common carrier, passing along all communiqués alike, companies bore no responsibility for what their services were used for. Wu and others argue that AT&T’s proposal to take on the tough job of filtering its network would indirectly impugn the company of copyright violation as it would inevitably be unable to squash all illegal transmissions.

But not all experts agree. James Speta, associate professor of law at Northwestern University, says that while the liability argument is not frivolous, he finds it weak.

"It’s perverse to say you’re safe if you do nothing and you’re not safe if you try and fail," he says.

Speta says that for AT&T to be held liable for the content on its network, it would need to be shown to be actively protecting and seeking to monetize it.  Merely trying to sift through it and coming up short wouldn’t be enough to convict it of second degree copyright violation.

Though he discounts the liability argument, Speta sees reasons for even the noncynical to interpret AT&T’s announcement as political sleight of hand.  Tired of facing the charges of censorship, privacy violation, and general "Big Brother"-ness that follow any discussion of managing traffic (which internet service providers have sought to do for years as web-based applications and media streaming and sharing eat up increasing amounts of bandwidth), Speta thinks this new approach may indeed be an attempt to paint net neutrality advocates into a corner.  It’s hard to argue in favor of protecting pirated material.

Speta also suggests that, by going after illegal music and video sharing services, AT&T could be clearing the way for a future yet-to-be-announced business opportunity.  He points to the company’s U-verse brand, a group of services provided over internet protocol that includes television and internet access, as an already existing product that could be construed as competing against the pirates. Cynical as the argument may seem, he says, it’s hardly new.

"People said the same thing about Comcast when it was accused of managing web traffic," he says, referring to accusations last year that Comcast was managing web traffic in order to box out copyright pirates who were eating away at potential clients for its On Demand TV and movie service.

Looking ahead, Speta’s not quite as gloomy as many industry watchers, though he does see a real fight ahead for the net neutrality set, which will have to respond to AT&T’s seemingly unobjectionable pro-copyright pose in a way that doesn’t marginalize or diminish its argument. Unfortunately for the cause, he points out, while the movement, which includes major players like Google and eBay, has been very successful at garnering media and government attention, it has yet to secure passage of any meaningful legislation to support its aim, a fact that the telecom giant is likely quite aware of.

"I think it’s an interesting and probably political play that AT&T is making," he says.