Internet industry, AT&T—the largest ISP in
the U.S.—has offered an enthusiastic yes to
these very questions. Beginning in 2007,
AT&T brass began speaking positively to
the press about taking on content filtering.
As recently as the 2008 Consumer
Electronics Show, AT&T re-affirmed its
interest in pursuing technology to
filter customer traffic for copyright-protected content.
The three-letter word that has reverberated across blogs, message boards, and
industry analysts has been “why?”
To put AT&T’s eagerness to filter content and the resulting surprise into context,
it helps to look at why ISPs don’t do this
When the controversial Digital
Millennium Copyright Act (DMCA) was
passed in 1998, ISPs did not want to be
held liable for all the illegal activities, new
and old, that their subscribers might
engage in. Should the service provider be
responsible if its users trade pirated software or state secrets or child pornography?
It is impossible, the ISPs argued, for them
to monitor everything.
Lawmakers agreed, and wrote into the
DMCA the now-famous “safe harbor”
provisions, which set about criteria under
which ISPs are not legally responsible for
the activities of their users. A key criterion
is that service providers not block or modify content passing through their system. In
effect, the law says, to maintain immunity
from your users’ activity, hands off. To do
otherwise suggests that you bear some
responsibility for the content that flows
through your network. Nobody wants that
headache, and so ISPs have happily sheltered themselves under the safe harbor provision since then.
Yet, AT&T now seems willing to reverse
course. By embracing the idea of content
filters, the ISP with 18 million subscribers
seems to be saying they will enthusiastically
monitor, block, or modify user activity and
take responsibility for the content that
flows through their network—all in the
name of protecting copyrighted intellectual
To expand on the earlier three-letter-word reaction: “Why in the world would
AT&T want to bring this on themselves?”
Is this plan anything other than “corporate
seppuku,” as Columbia law professor Tim
Wu describes it?
Publicly, AT&T makes the case for
bandwidth preservation. A small percentage of users, they argue, use almost 50 percent of the available bandwidth. These
users trade copyright infringing files using
network-clogging P2P protocols. In fact,
this is a complaint echoed by many ISPs.
Some, like Comcast, have taken steps to
reduce the problem by other means such as
downgrading or blocking P2P traffic—
practices which have generated their own
backlash and attracted investigation by
By AT&T’s logic, content filters will
rightfully block so much copyright infringing data from flowing through the network
that subscribers engaged in legitimate activity will enjoy faster performance.
Critics like Tim Wu say that, taken on
its own, this logic doesn’t add up. Surely
the cost of buying more bandwidth can’t
possibly be more painful than the cost of
losing the safe harbor shelter and becoming
exposed to potentially massive liability.
Besides, they say, AT&T is a public company and is responsible to its shareholders,
who aren’t likely to see the math here,
While we’re not privy to the AT&T
boardroom, analysts presume that their
new love for content filters is related to
their interest in Internet prpotocol television (IPTV). Today, most ISPs earn money
delivering data through pipes. But as Apple
has demonstrated with the success of the