London School of Economics Policy Engagement Network, Briefing on the Interception Modernisation Programme (London: London School of Economics and Political Science, June 2009), http://www.lse.ac.uk/collections/informationSystems/research/policyEngagement/IMP_Briefing.pdf.
Tom Whitehead, “Every email and website to be stored,” Telegraph, October 20, 2010, http://www.telegraph.co.uk/technology/news/8075563/Every-email-and-website-to-be-stored.html.
Charles Arthur, “Phorm Fires Privacy Row for ISPs,” Guardian, March 6, 2008, http://www.guardian.co.uk/technology/2008/mar/06/internet.privacy; Ian Grant, “Phorm Answers Critics at ‘Town-Hall’ UNITED KINGDOM FREEDOM HOUSE Freedom on the Net Providers withdrew their support for the initiative after the public outcry, and the European Commission has begun proceedings against the UK government for failing to implement the EU Telecommunications Privacy Directive.40 Virgin is reportedly still using DPI to monitor users’ sharing of copyrighted materials.There are no public restrictions on the use of encryption technologies. However, under Part 3 of RIPA, it is a crime not to disclose an encryption key upon an order from a senior policeman or a High Court judge. In 2009, the first two prosecutions under the rule yielded convictions, including that of a mentally unstable man who was not accused of committing a serious underlying crime.Meeting,” ComputerWeekly.com, April 18, 2008, http://www.computerweekly.com/Articles/2008/04/21/230354/Phormanswers-critics-at-39town-hall39-meeting.htm.
European Commission, “Telecoms: Commission Steps Up UK Legal Action over Privacy and Personal Data Protection,” news release, October 19, 2009, http://ec.europa.eu/information_society/newsroom/cf/itemdetail.cfmitem_id=5369.
Chris Williams, “Virgin Media to Trial Filesharing Monitoring System,” Register, November 26, 2009, http://www.theregister.co.uk/2009/11/26/virgin_media_detica/.
Office of Surveillance Commissioners, Annual Report of the Chief Surveillance Commissioner to the Prime Minister and to Scottish Ministers for 2008–2009 (London: Stationary Office, July 2009), http://www.officialdocuments.gov.uk/document/hc0809/hc07/0704/0704.pdf; Chris Williams, “UK Jails Schizophrenic for Refusal to Decrypt Files,” Register, November 24, 2009, http://www.theregister.co.uk/2009/11/24/ripa_jfl/.
UNITED KINGDOM FREEDOM HOUSE Freedom on the Net UNITED STATES OF AMERICA 2009 POPULATION: 309.6 million INTERNET FREEDOM n/a Free INTERNET PENETRATION: 78 percent STATUS WEB 2.0 APPLICATIONS BLOCKED: No Obstacles to Access n/a SUBSTANTIAL POLITICAL CENSORSHIP: No Limits on Content n/a BLOGGERS/ONLINE USERS ARRESTED: No Violations of User Rights n/a PRESS FREEDOM STATUS: Free Total n/a INTRODUCTION Access to the internet in the United States remains quite free compared with the rest of the world. Users face few restrictions on their ability to access and publish content online. The courts have consistently held that federal and state constitutional prohibitions against government regulation of speech apply to material published on the internet. In addition, statutory immunity for online service providers continues to play an important role in fostering business models that permit open discourse and the free exchange of information.
However, several developments in recent years have placed the government and internet freedom advocates at odds over aspects of internet regulation as well as issues surrounding online surveillance and privacy. The United States lags behind many major industrialized countries in terms of broadband penetration, and the strength and legal viability of recent rules concerning network neutrality remain uncertain. The current administration appears committed to maintaining broad surveillance powers with the aim of combating terrorism, child pornography, and other criminal activity, and it has been reported that the government is seeking expanded authority to control the design of internet services to ensure that communications can be intercepted when necessary.
OBSTACLES TO ACCESS Access to the internet in the United States is largely unregulated. It is controlled in practice by a small group of cable television and telephone companies that own and manage the UNITED STATES OF AMERICA FREEDOM HOUSE Freedom on the Net network infrastructure. This model has come into question in recent years amid growing concern that it is adversely affecting the economy and individuals’ participation in civic life, which increasingly occurs online.1 Observers have warned that if recent “network neutrality” regulations—discussed in greater detail below—prove too weak or are rejected by Congress or the courts, the dominant companies may decide not to continue to carry internet traffic in a content-neutral fashion.
Although the United States is one of the most connected countries in the world, it has fallen behind many other developed countries in terms of internet speed, cost, and broadband availability.2 Approximately 78 percent of all Americans have access to the internet,3 but only 66 percent of adults use high-speed broadband connections.4 While the broadband penetration rate is considered high by global standards, it puts the United States significantly behind countries such as Japan, South Korea, Norway, and Sweden. Lack of high-speed internet access is particularly evident in rural areas, where the low population density makes it difficult to justify large investments in network infrastructure. In fact, broadband service is not yet available to 5 to 10 percent of U.S. residents, most of whom live in rural counties.African Americans, those living in rural areas, and those earning less than US$30,annually are the groups least likely to have access to the internet, though internet penetration among African Americans has been growing at significantly higher rates than in the general population. In a survey conducted by the Pew Research Center, when asked why they do not use the internet, many nonusers said they did not see the internet’s relevance in their lives. They also cited factors such as availability, usability, and price as key deterrents.
About 61 percent of nonusers said they would require assistance to go online if they chose to do so. Mark Cooper, “The Socio-Economics of Digital Exclusion in America, 2010” (paper presented at 2010 TPRC: 38th Research Conference on Communications, Information, and Internet Policy, Arlington, Virginia, October 1–3, 2010).
According to a study by the Organization for Economic Cooperation and Development (OECD), as of June 2010 the United States was ranked 9th among the OECD member countries in terms of mobile wireless broadband subscriptions per inhabitants, and was ranked even lower, at 14th, on fixed-line broadband penetration. See OECD Broadband Statistics, “OECD Fixed (Wired) Broadband Subscriptions per 100 Inhabitants, by Technology, June 2010,” and “OECD Terrestrial Mobile Wireless Broadband Subscriptions per 100 Inhabitants, by Technology, June 2010,” http://www.oecd.org/dataoecd/21/35/39574709.xls, accessed March 4, 2011.
International Telecommunications Union (ITU), “ICT Statistics 2009—Internet,” available at http://www.itu.int/ITUD/ICTEYE/Indicators/Indicators.aspx, accessed March 4, 2011.
Aaron Smith, Home Broadband 2010 (Washington, DC: Pew Internet and American Life Project, August 11, 2010), http://www.pewinternet.org/Reports/2010/Home-Broadband-2010/Summary-of-Findings.aspx; National Telecommunications Information Administration (NTIA), Networked Nation: Broadband in America 2008 (Washington, DC: U.S.
Department of Commerce, 2009).
Amy Schatz, “Want Broadband New Maps Show Options,” Digits (blog), Wall Street Journal, February 17, 2011, http://blogs.wsj.com/digits/2011/02/17/want-broadband-new-map-shows-options/.
Smith, Home Broadband 2010.
UNITED STATES OF AMERICA FREEDOM HOUSE Freedom on the Net Mobile telephones, particularly models that enable internet access, have become ubiquitous in the United States. The mobile-phone penetration rate is roughly 91 percent.As of mid-2010, about 38 percent of mobile-phone users reported accessing the internet on their phones, and roughly half of those users accessed the internet on a daily basis.8 A growing number of people use their phones to check e-mail, visit social-networking sites such as Facebook, and engage in online commerce, prompting many companies to develop special applications and versions of their websites that are designed for mobile-phone viewing.
No single agency governs the internet in the United States. The Federal Communications Commission (FCC), an independent agency of the executive branch, is charged with regulating radio and television broadcasting, all interstate communications, and all international telecommunications that originate or terminate in the United States.
Although the FCC is not specifically tasked with regulating the internet or internet-service providers (ISPs), it has claimed jurisdiction over some internet-related issues, such as the recent rules regarding network neutrality. Other government agencies, such as the National Telecommunications and Information Administration (NTIA), also play advisory or executive roles with respect to telecommunications, economic, and technological policies and regulations. It is incumbent upon the U.S. Congress to create laws that govern the internet and delegate regulatory authority, and government agencies such as the FCC and the NTIA must act within the bounds of congressional legislation.
Recognizing that internet penetration and connection speeds in the United States have been outpaced by those in several other developed countries, Congress has devoted funding to improving the broadband infrastructure and instructed the FCC to create a National Broadband Plan that will ensure broadband availability for all U.S. residents.
Lawmakers required that this plan include a detailed strategy for reducing costs to consumers and maximizing the use of broadband to enhance health care delivery, energy efficiency, economic growth, education, and other public goods.9 After issuing a notice of inquiry in April 2009 and weighing input from a wide variety of business, government, and civil society organizations,10 the FCC issued its National Broadband Plan in March 2010.
First among the goals is to provide at least 100 million U.S. homes with “affordable access to actual download speeds of at least 100 megabits per second and actual upload speeds of at ITU, “ICT Statistics—Mobile Cellular Subscriptions,” available at http://www.itu.int/ITUD/ICTEYE/Indicators/Indicators.aspx, accessed March 4, 2011.
Aaron Smith, Mobile Access 2010 (Washington, DC: Pew Internet and American Life Project, July 7, 2010), http://www.pewinternet.org/Reports/2010/Mobile-Access-2010/Summary-of-Findings.aspx; Amy Gahran, “Survey: U.S.
Mobile Web Access Growing Fast,” CNN, July 8, 2010, http://articles.cnn.com/2010-0708/tech/mobile.internet.access.pew_1_cell-phone-users-feature-phones-mobile-internet_s=PM:TECH.
American Recovery and Reinvestment Act of 2009, H.R. 1, 111th Cong. (2009).
Stephanie Condon and Marguerite Reardon, “FCC Seeks Input on National Broadband Plan,” CNet News, April 8, 2009, http://news.cnet.com/8301-13578_3-10214974-38.html.
UNITED STATES OF AMERICA FREEDOM HOUSE Freedom on the Net least 50 megabits per second.”11 As part of the initiative, the government has started providing subsidies to ISPs that offer satellite-based internet access in rural areas.Between 3,000 and 4,000 ISPs currently operate in the United States, although 15 of them control approximately 75 percent of the market.13 Most of the network cables and other infrastructure are owned by large telephone and cable-television companies, such as Comcast, Time Warner, AT&T, and Verizon. Until 2005, those companies were required to grant “nondiscriminatory” access to their wire networks to other ISPs to ensure open retail-level competition and optimal service for consumers. However, in 2005, the FCC embraced an aggressive deregulation agenda and freed the network owners from the obligation to lease their lines to competing ISPs. The proponents of deregulation claimed that this step would provide more incentive for large cable and telephone companies to further develop and upgrade their networks, while opponents claimed that it would lead to fewer options for consumers, higher prices, and worse service.
One of the main policy debates surrounding the internet in the United States has to do with the concept of network neutrality, according to which network providers must treat all content, websites, and platforms equally when managing data traffic.14 Supporters of the principle argue that without it, ISPs would be able to block certain content and applications, or give preferential treatment to some content providers for a fee. Although concerns about net neutrality began emerging in the early 2000s, the issue did not gain widespread attention until the emergence of a 2007 case involving Comcast, a cable-television company and major ISP. That year, it was revealed that the company was slowing down and blocking certain types of peer-to-peer file-sharing traffic.15 Comcast claimed that it was forced to do so because certain high-volume users were clogging its network by repeatedly sharing large files, but its blocks were inconsistent and seemingly deceptive. For example, while engaged in peer-to-peer file sharing, a user would get a message from Comcast that looked like it came from the other computer, instructing him to stop the communication. A number of public-interest groups and academics requested that the FCC declare such blocking to be a violation of the agency’s internet policy principles.16 The FCC agreed, and Comcast appealed to the federal courts.17 In April 2010, a federal appeals court sided with Comcast Federal Communications Commission (FCC), National Broadband Plan: Connecting America (Washington, DC: FCC, 2010), http://www.broadband.gov/download-plan/.
Rural Utilities Service Broadband Initiatives Program, Round Two Application Directory: Satellite, Technical Assistance, and Rural Library Broadband Grant Applications (Washington, DC: U.S. Department of Agriculture, August 30, 2010), http://www.broadbandusa.gov/BIPportal/files/BIP_Sat_TA_RLB_App_Directory.pdf.
“ISP Usage and Market Share: ISP Trends, Stats and Analysis,” StatOwl.com, February 2011, http://www.statowl.com/network_isp_market_share.php.