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TechnologyDaily Mobile
No Role For ISP Police, Online Operators Say
High-tech companies in Washington have long pleaded with legislators not to regulate the Internet, lest its growth be stifled. Now Internet Service Providers fear that the alternative might be worse: lawmakers eager to respond to constituent demands to quash online sex, gambling or investment fraud want the ISPs to do the police work.
Private policing of the Internet could do more to stifle growth of the new medium than specific regulations that lawmakers and regulators shun, ISP executives insist. The added liability and cost of monitoring networks could force some ISPs to either censor their networks, or simply close shop, they said.
"These are business people who have businesses to run," said David McClure, executive director of the Virginia-based Association of Online Professionals. "You get a group of people who don't want to regulate the Internet, they just want to control it."
The concept of using ISPs to protect consumers from vice and fraud has been debated with a limited degree of success. While ISPs don't have to actively police their networks for child pornography or copyright violations, they must report wrongdoers once they are brought to the company's attention. And the fact that ISPs aren't currently playing an active police role doesn't stop lawmakers from reviving the idea each new legislative cycle.
ISPs are claiming a limited victory this year because a new version of legislation to prohibit online gambling, introduced by Sen. Jon Kyl, R-AZ, on March 23, would not require the companies to police for illegal cybergambling operations. Prior versions of the bill would have required ISPs to actively block online gambling operations from their networks.
ISPs argue that it is not feasible for them to spend resources monitoring a moving target like an outlaw Web site. They say lawmakers don't understand the technology, which makes it easy for gambling operations or other sites to evade blocking technology by changing their Web address.
"Many people have the mistaken impression that Internet service providers act as a traffic officer that can easily block or otherwise control information traveling to or across their networks," Ralph Sims, who is a board member with the Washington Association of Internet Service Providers, told the National Gambling Impact Study Commission earlier this month. "This could not be further from the truth."
ISP leaders say they don't have a problem referring bad actors to law enforcement, once identified by their online customers. They just don't want to have to actively police their networks.
"It is not possible for ISPs to monitor all of the content," on their networks, said Barbara Dooley, president of the Virginia-based Commercial Internet eXchange, an ISP association. "You can't even take care of the e-mail in your own mail box every day."
In fact, ISPs in a limited way, monitor customer content through their service agreements and contracts. If a customer violates the terms, he can be booted off the network even if the activity isn't illegal. The ISPs, however, rely on complaints from other network users to track violators. These agreements blur the boundaries of an ISPs function: Is it a conduit for information free of liability or a publisher responsible for content?
ISPs liken themselves to the telephone system, saying they just create a connection to the Internet for their customers. They also agree to work with law enforcement to stop illegal activity, like phone companies do in wiretap situations.
"If it's fraud, it's fraud," said Ronald Plesser, an attorney with the Washington, DC-based Piper and Marbury. "It can be prosecuted under any circumstances, but you don't prosecute the post office or UPS."
ISP officials say that lawmakers don't fully understand how networks work. They don't realize that there isn't one central command center where an ISP employee can tap into the network and track what every customer is looking at. Lawmakers are looking for order in a system that has no traditional structure, officials say.
"People want to conceive of the Net as one thing that an identifiable person controls," Plesser said.
Plesser added that ISPs are easy marks for lawmakers in a medium that protects the anonymity of individuals.
"They are an attractive target on the Internet," he said. "The ISP is easy to find, and sometimes has money."
ISPs are worried that growing concerns for more consumer protection, including privacy and online business transactions, could invite a renewed attempt by Congress to enlist private companies in an online police force.
"There's a lot of behavior that's improper, rude and naughty, but we can't legislate against the medium," said Gene Crick, executive director of the Texas Internet Service Providers Association.
At a recent hearing of the Senate Permanent Investigations Subcommittee, Chairwoman Susan Collins, R-ME, floated the idea of ISPs monitoring networks to prevent online stock frauds. While officials from the Securities and Exchange Commission and other state-level stock market authorities welcomed the idea, they said they probably couldn't convince ISPs to play the role.
Peter Hildreth, president of the North American Securities Administrators Association, said there could be resistance from Internet investment groups to taking on an enforcement role.
"They certainly have a role to play," he said. "But they'll be asking for some type of protection from liability."
CIX's Dooley said that type of online monitoring couldn't be pinned on ISPs.
"I don't believe it's an ISPs responsibility to protect people from their own greed," Dooley said. "It's not our job."
But consumers who appear before congressional committees with sob stories of fortunes lost online bolster efforts to make someone responsible for content on the Internet. AOP's McClure said a number of lawmakers recognize it for what it's worth.
"These people know clear and full well they are grandstanding for the voters," he said. "The Internet, because it is new, is being used to reopen battles that were resolved years ago. That's why it will get worse."
ISP leaders say that Congress needs to beef up funds for police and other federal oversight agencies so they have the tools to combat crime on the Internet. ISPs would then have a legal source to tap into when they find illegal Web sites on their networks.
"Money is one of the reasons the government says 'Why don't we make Mikey do it,'" and place the burden on the ISPs, McClure said.
"It is not the proper role of commercial companies," Dooley said. "It is not our role or responsibility to be deputized as police."
She added that the best protection would come from individuals taking responsibility by blocking offensive or illegal material at home with personal software, rather than relying on the ISP.
"This is an area that is national, local and subjective," Dooley said. "The easiest solution would be to have technical tools for the individual."
—by Rebecca S. Weiner
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