Politics and Law

This was originally published on CBSNews.com.

When times are hard, people adjust their priorities--even the president. When an unexpected economic disaster imploded as Barack Obama was entering office, some of his technology agenda was put on hold.

Almost 100 days into his presidency, Obama has yet to advance most of the strong technology policies he promised during the campaign.

Thanks in large part to the economic crisis, Obama has yet to put forward his new cybersecurity strategy, or even fill some important technology-related vacancies. At the same time, the downward-spiraling economy has let him to push forward in other ways that were unexpected as recently as last fall.

In orchestrating the development of a $787 billion stimulus package, the president won congressional approval for significant spending on broadband infrastructure, electric smart-grid technology, and electronic health care records. Still unclear, though, are the ultimate results of that spending, or whether it will translate into more investment by the private sector.

"I think it's a positive sign (the administration is) including technology as a cross-cutting issue in all of their priorities," said Ben Scott, the policy director for the media advocacy group Free Press. "So far, with every opportunity to push technology policy into the mix, they've done so. Some of the standalone tech policy agenda has not been an immediate priority, but it would be unfair to demand that, given the other crises the administration is dealing with."

Some of the most important pieces of the president's technology policy are only beginning to unfold. Less than two weeks ago, Obama appointed Virginia's secretary of technology, Aneesh Chopra, to be his chief technology officer. Chopra is responsible for formulating an open government directive within the next 20 days and will work closely with Obama's chief information officer, Vivek Kundra.

Obama's pick to chair the Federal Communications Commission, Julius Genachowski, has yet to be confirmed, but he is expected to push for more Net neutrality regulation.

All three appointments, Scott said, "reflect a strong commitment to a new kind of technology policy, (and) a commitment to making technology work for the government."

Appointments may hint at approach
Obama has also made some high-level appointments within the Justice Department that may hint at the administration's approach to technology--specifically, toward the protection of intellectual property. The president has filled out the department with lawyers favored by the copyright industry, including attorneys who have represented the Recording Industry Association of America and the Business Software Alliance.

The president has yet to appoint anyone to fill the role of intellectual property enforcement coordinator, a new, congressionally mandated cabinet position responsible for coordinating the White House's IP enforcement efforts. Vice President Joe Biden emphasized the need to find the "right person" for the job, given the significant impact intellectual property has on the economy.

The jury is still out on whether the IP enforcement coordinator will play a meaningful role in copyright and IP policy in the White House, said David Sohn, senior policy counsel for the Center for Democracy and Technology (CDT).

"What the person in that position is able to achieve and how much prominence they will have is hard to tell," he said.

While the administration has yet to take any significant actions on the IP front, the Justice Department did intervene last month in a file-sharing case in which it sided with the record label plaintiff.

Obama's endorsement of strong but reasonable intellectual property enforcement generally aligns with the Bush administration's position. President Bush's White House endorsed the legislation that created the IP enforcement coordinator position, after it was stripped of its more extreme provisions.

The Obama White House has yet to greatly diverge from the Bush administration on another tech policy item critical to the nation's economy--cybersecurity--but that could change dramatically in the coming weeks.

Bush in 2008 gave the Homeland Security Department jurisdiction over the Comprehensive National Cybersecurity Initiative, a new program to coordinate cybersecurity efforts. The program has come under harsh scrutiny, however, and President Obama in February called for a comprehensive, two-month review of all federal cybersecurity efforts. He selected Melissa Hathaway, who worked for the director of national intelligence in the Bush administration, to conduct the review.

The final review was sent to the president for his approval but has yet to be publicly released. Hathaway last week indicated that it may recommend shifting cybersecurity responsibility away from DHS to the White House.

"Signs so far say there will be at least one major difference (from Bush cybersecurity policy) in terms of transparency," said Greg Nojeim, senior counsel for CDT. "The review team's process has so far been transparent, and they've involved stakeholders from industry, Congress, and privacy and advocacy groups. If that carries forth into the execution of the policy, it would be a very good sign and a significant departure from President Bush's approach."

While Obama may be able to learn from Bush's mistakes in the realm of cybersecurity, he also has the fortuitous advantage of having a green light from Congress to invest in new, major initiatives that his predecessor did not.

Doctors and hospitals will have to digitize their patients' medical records under Obama's watch or face eventual penalties under the electronic health record provisions of the stimulus package. The stimulus bill dedicated $19 billion for the digitization of medical records, which Obama has called the "low-hanging fruit" of health care reform.

Challenges to IT adoption ahead
It may be easy in comparison to comprehensive health care reform, but experts say there are dizzying challenges to information technology adoption in the health sector. It is so challenging that it took the current economic crisis to jump-start the process, even though the and called for health IT adoption years ago.

"I think it was a game-changer for (Obama's) entire economic agenda," said Scott, of Free Press.

In the five years Scott has spent advocating for broadband deployment, he said, it has been difficult to envision investments of even around $200 million--much less the $7.2 billion for broadband included in the stimulus.

Back in September 2008, former FCC Chairman Michael Powell said at an FCC forum that it would be unrealistic to entertain "the idea that there's money to get people to dig up streets and put in fiber."

Now, Scott says, it's possible the $7 billion in broadband stimulus funds could be the first of regular annual investments, if the Universal Service Fund is revised to subsidize broadband infrastructure rather than just telephone service.

"The stimulus bill gave the administration an instant opportunity to implement a new theory of broadband policy, which is to begin treating Internet access as a public good, not as a private good," Scott said. "When you put $7 billion in broadband infrastructure, that is a policy which is really unprecedented and positive."

Rob Atkinson, president of the Information Technology and Innovation Foundation, agreed that the stimulus reflects Obama's commitment to advancing the use of technology, whether through the modernization of the health care system or the expansion of broadband. A commitment to technology is likely to be manifest in the president's procurement policies, regulatory changes, and in other areas.

He said it is doubtful, though, the president will be able to promote spending on technology at a significant level ever again.

"While I think the administration has a deep commitment to public investment in these areas, there are going to be so many priorities in other areas that risk crowding them out," Atkinson said. "The stimulus was a one-time opportunity that doesn't come around very often."

President Obama on Tuesday nominated Julius Genachowski as the nation's top telecommunications regulator, picking a campaign advisor who has divided his career between Washington, D.C., political jobs and working as an Internet executive.

Genachowski had been mentioned as a likely candidate for the Federal Communications Commission post, in part because he participated in the Obama campaign's Internet efforts and previously worked as chief counsel to Democratic FCC Chairman Reed Hundt.

Julius Genachowski

(Credit: LaunchBox Digital)

"He will bring to the job diverse and unparalleled experience in communications and technology, with two decades of accomplishment in the private sector and public service," Obama said in a statement.

Genachowski is likely to continue the Democratic push for more Net neutrality regulations, which are opposed by some conservatives and telecommunications providers. He was a top Obama technology advisor and aided in crafting a technology platform that supported Net neutrality rules.

The FCC's first official Net neutrality ruling--an earlier one resulted in a settlement--came last summer when the agency narrowly voted by a 3-2 margin that Comcast's throttling of BitTorrent was unlawful. That case is now before a federal appeals court.

Genachowski was a Harvard classmate of Obama's and previously worked for Democratic Sen. Chuck Schumer. He's currently a co-founder of LaunchBox Digital and Rock Creek Ventures, and held executive posts including general counsel at IAC/InterActiveCorp, which owns a list of Web properties including Ask.com, Match.com, Gifts.com, Reference.com, Evite, Citysearch, and Excite.

IAC is a member of a coalition that supports more Net neutrality regulations and which also includes Amazon, eBay, and Google.

Genachowski doesn't take over the post officially until his nomination is confirmed, as expected, by the Senate.

WASHINGTON--Is your Internet provider interfering with your network traffic, and perhaps even running afoul of Net neutrality principles? Google and some like-minded folks believe they've come up with what amounts to an early warning system.

The idea behind the so-called Measurement Lab, or M-Lab, is that just about anyone interested in Internet regulation--including consumers, regulators, and content providers--could use more details about their network's performance. Google, the Democratic Party-affiliated New America Foundation, and the PlanetLab Consortium (a university-business consortium devoted to next-generation networks) announced M-Lab on Wednesday.

The launch's timing is probably no coincidence: M-Lab may become especially relevant if the Net neutrality wars between Google and broadband providers in Washington heat up again. If Democratic legislators get their way, the so-called stimulus package expected to become law will require federal regulators to define and enforce "open access" rules for certain broadband and wireless networks. The 2007 discovery that Comcast was throttling BitTorrent traffic showed that it can be difficult to determine when network providers are interfering.

(Credit: M-Lab)

M-Lab aims to bring more transparency to network activity by allowing researchers to deploy Internet measurement tools and share data. The platform launched Wednesday with three Google servers dedicated to the project, and within six months, Google will provide researchers with 36 servers in 12 locations around the globe. All the data collected will be made publicly available.

Sascha Meinrath, research director of the New America Foundation's Wireless Future Program, said his organization's role in M-Lab is to translate the data collected into meaningful and understandable information for policymakers. M-Lab founders and supporters told an audience here at the New America Foundation headquarters that more information would lead to better policymaking from anyone's perspective.

"I'm going to argue no matter what position you take on Net neutrality, you should be happy things like M-Lab are being built," said Ed Felten, a computer science and public affairs professor from Princeton and the director of the Center for Information Policy.

"If you believe the government should take more active steps to mandate Net neutrality...it will help you gather the evidence you need" to support such policies, he said. On the other hand, he said, more transparent networks would give Internet service providers true market incentive to behave in consumer-friendly ways.

Meinrath, however, said they do not intend to use M-Lab data for any kind of political agenda.

"The goal is not to be actively involved in using that ammunition," he said. "It's just creating results."

For now, M-Lab is running three diagnostic tools for consumers: one to determine whether BitTorrent is being blocked or throttled, one to diagnose problems that affect last-mile broadband networks, and one to diagnose problems limiting speeds.

Vint Cerf, Google's chief Internet evangelist, said that while such information may be hard for some consumers to understand, it would help them explain their Internet problems to people with more expertise.

"This data could be made available to someone who is trying to help you," he said, "but instead of getting anecdotal information like, 'Gee, this is slow,' you could actually send this data."

"You'd have some raw data coming from the customer's point of view," he continued. "Maybe it will allow people to start businesses like 'Call a Geek' to figure out what's wrong with their Internet connection."

CNET's Declan McCullagh contributed to this report

The House Democrats' $825 billion legislation released on Thursday was supposedly intended to "stimulate" the economy. Backers claimed that speedy approval was vital because the nation is in "a crisis not seen since the Great Depression" and "the economy is shutting down."

That's the rhetoric. But in reality, Democrats are using the 258-page legislation to sneak Net neutrality rules in through the back door.

The so-called stimulus package hands out billions of dollars in grants for broadband and wireless development, primarily in what are called "unserved" and "underserved" areas. The U.S. Department of Commerce is charged with writing checks-with-many-zeros-on-them to eligible recipients, including telecommunications companies, local and state governments, and even construction companies and other businesses that might be interested.

The catch is that the federal largesse comes with Net neutrality strings attached. The Commerce Department must ensure that the recipients "adhere to" the Federal Communications Commission's 2005 broadband policy statement (PDF)--which the FCC said at the time was advisory and "not enforceable," and has become the subject of a lawsuit before a federal appeals court in Washington, D.C.

One interpretation of the "adhere to" requirement is that a company like AT&T, Verizon, or Comcast that takes "stimulus" dollars to deploy broadband in, say, Nebraska must abide by these rules nationwide. (It's rather like the state of Nebraska demanding that a broadband provider filter out porn nationwide in exchange for a lucrative government contract.)

In addition, recipients must operate broadband and high-speed wireless networks on an "open access basis." The FCC, soon to be under Democratic control, is charged with deciding what that means. Congress didn't see fit to include a definition.

The Bush administration has taken a dim view of Internet regulations in the form of Net neutrality rules, warning last year that they could "inefficiently skew investment, delay innovation, and diminish consumer welfare, and there is reason to believe that the kinds of broad marketplace restrictions proposed in the name of 'neutrality' would do just that, with respect to the Internet." A report from the Federal Trade Commission reached the same conclusion in 2007.

In addition, a recent study from the U.S. Chamber of Commerce says that the absence of Net neutrality laws or similar federally mandated regulations has spurred telecommunications companies to invest heavily in infrastructure, and changing the rules "would have a devastating effect on the U.S. economy, investment, and innovation."

Now, perhaps extensive Net neutrality regulations are wise. But enough people seem to have honest, deep-seated reservations about them to justify a sincere discussion of costs and benefits--rather than having the requirements stealthily injected into what supposed to be an emergency save-the-economy bill scheduled for a floor vote within a week or so.

Net neutrality requirements can, of course, always be imposed retroactively on broadband "stimulus" recipients. As recently as one day ago, a Democratic Senate aide was saying the topic would be addressed in the Judiciary Committee in the near future; there seems little reason to rush to lard up this particular legislation.

But it always seems to happen. Last fall's TARP bailout bill included IRS snooping. A port security bill included Internet gambling restrictions; the Real ID Act was glued onto a military spending and tsunami relief bill; a library filtering law was attached to a destined-to-be-enacted bill funding Congress itself.

It's enough to make you want to force our elected representatives to actually read the bills they pass.

Broadband development should not be stifled by federal regulation that intends to make networks more "neutral," the U.S. Chamber of Commerce is arguing through two papers released Monday.

The papers, the first in a series of five that will examine the impact of broadband on certain user groups and for certain purposes, argue that the federal government's current loose regulatory structure has enabled broadband to become a "life-altering tool" both for the general population and for senior citizens specifically.

"An estimated $60 billion has been invested in broadband infrastructure by the communications industry this year," William Kovacs, the U.S. Chamber's vice president for environment, technology, and regulatory affairs, said in a statement. "Given these turbulent economic times, federal policy must continue to support this high-level of investment. This will spur job growth, innovation, and consumer choice."

The lack of Net neutrality laws or other federally-mandated regulations has spurred telecommunications companies to heavily invest in broadband infrastructure, according to the first paper, "Network Effects: An Introduction to Broadband Technology & Regulation." (PDF)

"Moving away from a pro-investment model would halt this organic progress and would have a devastating effect on the U.S. economy, investment, and innovation," it says. "Moreover, policies aimed at management practices are unnecessary and would serve only to chill innovation at the network level and at its edges, resulting in net consumer welfare losses."

Network owners need to be able to manage content flow in order to prioritize important data like 911 voice over IP calls, according to the paper, authored by Charles Davidson and Michael Santorelli of the Advanced Communications Law & Policy Institute at New York Law School. The need to manage networks will only grow as the amount of services offered online grows, it says.

"A variety of proposals have been put forward to regulate the broadband sector under the guise of making the physical infrastructure more 'neutral' to the data flowing over it," the paper says, but such regulations would lessen incentives for investment in broadband and slow the development of content and applications.

The paper recommends legislators focus on targeting broadband funding in regions where it is most needed, reforming the Universal Service Fund, and embracing public-private partnerships to promote broadband deployment.

The second paper, "The Impact of Broadband on Senior Citizens," (PDF) recommends similar support for broadband deployment as well as educating seniors on the usefulness of broadband and expanding their options for getting online. If obstacles for adoption are removed, the paper says, broadband could transform senior life and senior care, just as the senior population is set to expand significantly.

The chamber will later release papers examining the impact of broadband deployment on telemedicine, education, and people with disabilities.

The problem with defining Net neutrality so the government can regulate it is a little like the problem of defining obscenity so the government can ban it: You know it when you see it.

That shorthand didn't work very well for the U.S. Supreme Court, and it's not working that well for Google, as a report in Monday's editions of the Wall Street Journal made clear. The article said that Google "has approached major cable and phone companies" with a plan to "place Google servers directly within the network of the service providers," in apparent violation of the company's long-standing exhortations that Net neutrality means everything-must-be-treated-equally.

Google promptly replied to the Journal in a post Sunday evening by Richard Whitt, its Washington telecom counsel. Whitt dubbed the Journal story "confused" and "hyperbolic," and offered this elaboration:

Google has offered to "colocate" caching servers within broadband providers' own facilities; this reduces the provider's bandwidth costs since the same video wouldn't have to be transmitted multiple times. We've always said that broadband providers can engage in activities like colocation and caching, so long as they do so on a non-discriminatory basis.

All of Google's colocation agreements with ISPs -- which we've done through projects called OpenEdge and Google Global Cache -- are non-exclusive, meaning any other entity could employ similar arrangements. Also, none of them require (or encourage) that Google traffic be treated with higher priority than other traffic. In contrast, if broadband providers were to leverage their unilateral control over consumers' connections and offer colocation or caching services in an anti-competitive fashion, that would threaten the open Internet and the innovation it enables.

Perhaps the Journal was hasty; the story dwelt little on the technology being used (which is the heart of the matter), included little comment from Google itself, didn't mention caching, and mostly explored what this could mean for Washington politicking next year.

But if there's a bit of confusion here, that's to be expected. Much like pornography is in the eye of the beholder, so is Net neutrality.

In a February 2008 post on its public policy blog, Google said: "Some major broadband service providers have threatened to act as gatekeepers, playing favorites with particular applications or content providers, demonstrating that this threat is all too real."

Let's read that a second time. Early this year, Google was upset that broadband providers may ink deals--"playing favorites"--with certain content providers. That was then. Today Google is actively encouraging broadband providers to ink deals with certain content providers--that is, itself, especially for YouTube videos. (Here's Google's own definition of what should and should not be permitted.)

Of course, Google includes the obligatory disclaimer that anyone else should be able to enter into deals with broadband providers for colocation or caching as well. Fair enough. But if one of the justifications for Net neutrality was to protect the ability of the next Google or Yahoo or Facebook to become popular without cozying up to AT&T, Verizon, and Comcast, well, that particular justification seems to have evaporated.

This is hardly the end of Net neutrality regulations. There's no indication that President-elect Barack Obama has changed his mind about its desirability, and liberal advocacy groups are planning a legislative push in 2009. Web firms may still find it useful to attempt to shackle AT&T, Comcast, and so on with vague and open-ended rules. But what this episode should demonstrate is that some of Net neutrality's most vigorous proponents may not like it when those same vague and open-ended rules apply to them.

Disclosure: The author is married to a Google employee.

Google's staff representatives in Washington, D.C., are famously mild-mannered. But they showed a flash of steel on Thursday in a response to an incendiary article written by a political adversary paid by AT&T, Comcast, Verizon, and other communications companies.

The article in question was written by Scott Cleland, who alleged that Google is not paying its "fair share of the Internet's cost." He calculated that it uses 16.5 percent of all consumer Internet traffic this year yet pays only a fraction of that in bandwidth costs.

Cleland's anti-Net neutrality group, NetCompetition.org, is paid by telecommunications and cable companies to be a full-time, 24-7 Google critic. Some examples of Cleland-isms: "Google steals," it connives in a "modern-day Machiavellian plot," and its executives dress funny.

Google has generally let those fusillades--and those creative astroturfing efforts organized against it--pass without much public comment. But Cleland's latest article prompted Richard Whitt, Google's Washington telecom counsel, to respond.

On the company's blog, Whitt lashed out at what he called Cleland's "payola punditry." He said: "We don't fault Mr. Cleland for trying to do his job. But it's unfortunate that the phone and cable companies funding his work would rather launch poorly researched broadsides than help solve consumers' problems."

And: "Mr. Cleland's calculations about YouTube's impact are similarly flawed. Here he confuses "market share" with 'traffic share.' YouTube's share of video traffic is decidedly smaller than its market share. And typical YouTube traffic takes up far less bandwidth than downloading or streaming a movie."

In other words, a low-quality streaming YouTube video takes only a small fraction of the bandwidth of a high-definition TV show, which iTunes is now offering. Another way to make that point is to realize that one company may sell a million vehicles and another may sell 100,000, but that doesn't say anything about the total vehicle weight--a million bicycles have nowhere near the same mass as 100,000 Mack trucks.

For his part, in two brief telephone conversations on Thursday, Cleland stands by his work. He says, regarding his corporate sponsors: "I am fully disclosed."

About the criticisms raised by Google, Cleland replied: "I took a difficult subject that's never been written about before...This was a straightforward, transparent attempt to estimate something of significance."

Don't think this debate is going to be over anytime soon. The telecommunications and cable lobbyists turned to Cleland around the same time as Google and its left-coast allies (eBay, Amazon.com) were on the legislative attack and demanding sweeping, intrusive Net neutrality laws. Congress rejected them at the time. But with the Democrats about to control the legislative and executive branches, and with President-elect Barack Obama's clearly stated views on the topic, look for round two in the Net neutrality wars, contra my earlier predictions, to erupt next year.

Disclaimer: Declan McCullagh is married to a Google employee.

WASHINGTON--Representatives from industry, government, and advocacy groups agreed on Thursday that the Internet needs to be open and widely available throughout the United States. The question is how to get there.

A newly emboldened Democratic Congress is sure to have a long wish list, including new Internet regulations that corporations believe are unwise or unnecessary. Net neutrality regulations are one possibility, as is broadband and spectrum legislation. But it's unclear where the money to pay for sweeping new projects will come from--neither tax increases nor deficit spending on tech seem that likely when a Wall Street and Detroit bailout are center stage--so today's laws and regulations may end up being extended by default.

The next Congress is sure to introduce Net neutrality legislation, a Democratic congressional staffer said Thursday. "With the Obama administration being extremely supportive of Net neutrality, we're quite excited we can actually get things done," said Frannie Wellings, telecom counsel for Sen. Byron Dorgan (D-N.D.).

Speaking at a telecommunications law and policy conference hosted by the University of Nebraska College of Law, Wellings said, "We definitely feel legislation is necessary" in the area of Net neutrality. (On the other hand, the Democrats have controlled Congress for two years and have advanced precisely zero Net neutrality bills, even though House Speaker Nancy Pelosi once called it a tremendously important topic.)

Representatives from the telecommunications industry insisted they have a common interest in maintaining open networks since their revenues come from carrying bits--but say that they're OK with the current state of the law. New legislation, they say, is not the way to achieve open access--and could even have adverse results.

The Federal Communications Commission's ruling against Comcast proved the commission's approach of reviewing possible Net neutrality violations on a case-by-case basis is effective, said James Cicconi, senior executive vice president of external and legislative affairs for AT&T.

Panelists at a conference Thursday discuss the merits of broadband and Net neutrality legislation.

(Credit: Stephanie Condon/ CNET News)

"The essence of network management is some form of discrimination," he said. "This really is about what's reasonable and what isn't. Discrimination that impacts consumers negatively is something unreasonable."

Cicconi said Comcast's appeal of the decision "was a mistake from many standpoints," and that a ruling in Comcast's favor would almost certainly lead to Net neutrality legislation, which would make the FCC's review of telecom practices less flexible.

Replacing a flexible, case-by-case approach to Net neutrality enforcement with a common approach "would lead to more litigation, not less," Cicconi said. (See a related CNET article about wireless Net neutrality.)

The threat of litigation against Net neutrality rules may be overblown, suggested Ben Scott, policy director of media advocacy group Free Press. He cited the news that the wireless trade association CTIA recently dropped its legal challenge to the open access conditions the FCC imposed on the C-Block spectrum Verizon purchased earlier this year. Verizon dropped its legal challenge in October.

The 111th Congress will also reintroduce legislation to promote universal broadband, Wellings said, though the need for that was also disputed.

"It's probably the case the FCC, despite the uncertainties, can probably accomplish much of the Obama administration's agenda without legislation," said Richard Wiley, a former FCC chairman who now represents telecom companies as a partner at Wiley Rein.

There was a consensus among the panelists that one significant step the Obama administration could take would be to reallocate spectrum currently appropriated to government agencies.

"The biggest reason it's a precious resource is because the government has appropriated half of it," said Cicconi.

"If we're serious about having wireless as a serious competitor to wired networks, we're going to have to find more spectrum," Scott added. "The best place I see is government allocations."

The Obama administration will also have to revamp the FCC's approach to establishing an public safety network on the D-Block, panelists said.

Cicconi called it "borderline scandalous" that Congress and the Bush administration "saddled the FCC with the conundrum of how to do it without appropriations."

The situation was analogous to giving an agency land on which to build a highway system exclusively for police cars and ambulances but expecting the agency to get private sector funding, Scott said.

"This is a great opportunity and great challenge for the Obama administration," Wiley said.

CNET's Declan McCullagh contributed to this report

FCC Chairman Kevin Martin (left) and Google co-founder Larry Page speak at a Wireless Communications Association conference on Thursday.

(Credit: Declan McCullagh/CNET News)

SAN JOSE, Calif.--If you thought that federal regulators were upset at Comcast's throttling of BitTorrent, wait until they start scrutinizing what wireless providers are doing.

Comcast's offense was merely to slow or abort some BitTorrent transfers. AT&T Wireless goes much further and flatly bans all "peer-to-peer file sharing" and "downloading movies." Verizon Wireless' terms of service also single out P2P applications.

If those restrictions applied to wired Internet connections, there would have been Federal Communications Commission proceedings, congressional hearings, and plenty of outrage, real or feigned. Wireless providers' network management policies, on the other hand, have mostly been left alone--a situation that left-leaning groups are hoping that an Obama administration will help them remedy.

"That regulatory disparity is going to become a problem when we go forward and it ought to be addressed right now," Ben Scott, policy director of media advocacy group Free Press, said at the Wireless Communications Association's conference here Thursday.

Scott, one of Washington, D.C.'s most vocal proponents of Net neutrality and broadband regulation, said he thinks it's time to take aim at wireless providers. "They're not different," he said. "That's the basis of the argument that I'm trying to make. They're not different technologies. They're all running on IP. They're all providing access to the Internet. The only question...is what is reasonable network management."

Page (right) makes comments as Martin listens.

(Credit: Declan McCullagh/CNET News)

The Bush administration has taken a dim view of Internet regulations in the form of Net neutrality rules, warning last year that they could "inefficiently skew investment, delay innovation, and diminish consumer welfare, and there is reason to believe that the kinds of broad marketplace restrictions proposed in the name of 'neutrality' would do just that, with respect to the Internet." A report from the Federal Trade Commission last year reached the same no-new-laws-needed conclusion.

Don't be surprised if the situation changes under the Obama administration. President-elect Barack Obama told CNET News during the campaign that "I will take a backseat to no one in my commitment to network neutrality." He said the same thing while campaigning, although focusing on the relatively narrow issue of some Web sites paying more for faster connectivity than others. In addition, some Democratic politicians like Rep. Ed Markey of Massachusetts have slammed AT&T's exclusive iPhone deal, and even introduced legislation to prohibit it.

Now, the disclaimers: Obama's statements were general and not specific enough to figure out what his administration will actually do. Some once-vocal Democratic proponents of Net neutrality, like House Speaker Nancy Pelosi, seem to have lost interest in the topic in the last few years. And everyone in Washington officialdom is waiting to see what happens with Comcast's court challenge to the FCC's order before they draft new bills or regulations.

One argument for exempting wireless networks from the sweep of Net neutrality rules is that the size of the (virtual) pipes is so much smaller and that one person can more easily clog a wireless network than wired broadband. Another is the larger number of competitors in the wireless world, at least when compared with residential customers' typical options of DSL or cable.

"How do you address things like tele-medicine or alarm monitoring or VoIP or gaming or whatever tomorrow's flavor" will be, Christopher Guttman-McCabe, vice president for regulatory affairs at the CTIA wireless trade association, said during a panel discussion Thursday. "Setting a hard and fast rule is something that doesn't take into account (changes in technology). That's why I'm troubled at memorializing something very specific."

Guttman-McCabe and representatives of AT&T, Free Press, and Google spoke on a panel--Disclaimer: I moderated it--and at least initially said that they have reached a kind of detente.

There's "not as much that divides the folks up here as we thought," said Richard Whitt, Google's Washington telecommunications counsel. "It's easy to have the wrong impression of where folks are coming from. We didn't always feel that was the case" that AT&T supported the goal of an open Internet. (It didn't help that AT&T's chief executive once said Google was getting a "free ride" on his network.)

AT&T's Jim Cicconi, a senior vice president, acknowledged his employer supported the FCC's Net neutrality assault on archrival Comcast. But he said that AT&T's newfound enthusiasm for broadband Net neutrality doesn't mean such rules should be extended to wireless.

"With wireless, you have exactly the opposite" as wired broadband connections, Cicconi said. "You have uber-competition. I'm hard put to see the case for regulation in the wireless space where I think it's even weaker."

Wireless Net neutrality is not exactly a novel idea. One proposal emerged in the form of a working paper (PDF) by Columbia University law professor Tim Wu published in February 2007, which says that wireless carriers "should be subject to the same core network neutrality principles."

Wu argued that the rise of the wireless industry has led to "carriers aggressively controlling product design and innovation in the equipment and application markets, to the detriment of consumers. In the wired world, their policies would, in some cases, be considered simply misguided, and in other cases be considered outrageous and perhaps illegal."

Skype, which is part of eBay and would dearly love to be a bigger part of the mobile market, made similar arguments in a petition (PDF) it submitted to the FCC last year. It says that carriers are trying to "limit subscribers' right to run software" and that any device must be allowed to connect to the network--something that the FCC decided was permissible in a landmark 1968 ruling against AT&T.

The FCC has not ruled on Skype's request, and FCC Chairman Kevin Martin said in April that he would oppose it. But a Democratic-dominated FCC may be more inclined.

Earlier in the day, Martin spoke at the conference with Google co-founder Larry Page. "There are ways to manage your network without having to look at particular applications or types of applications," Martin said, adding that he'd like to prohibit "the network operators limiting where people can go on the Internet or what content they have access to."

Although Google has been a Net neutrality supporter, Page spent much of his time talking about unlicensed white spaces instead. On Tuesday, the FCC approved opening up unused broadcast TV spectrum for unlicensed use. This 300MHz to 400MHz chunk of unused spectrum known as "white spaces" is considered beachfront real estate for wireless broadband services because frequencies in this range can travel long distances and penetrate walls.

Page said that on unlicensed wireless, "if the U.S. does the right thing, then a lot of other people will take that into account very strongly. You're likely to see a worldwide thing happen." He also acknowledged that better wireless connectivity means more search users, and Google's ability to make a "significant amount" more, even 20 percent to 30 percent.

Page said the uses of that portion of the spectrum may follow the path that Wi-Fi took: increasingly cheap chips, uses that nobody could have foreseen, and some free and some pay networks.

"Having an unlicensed regime that works through walls well is going to be tremendously useful," he said. "I think the debate is whether it's going to be really useful or really, really, really useful."