Federal Internet Law & Policy
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Federal Internet Law & Policy |
Notes: Definitions: Public Internet |
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The term public Internet has frequently been used in policy discussions to refer to The Internet.[1] The adjective "public" however, however, is poorly used with reference to the Internet.[2]
Common usage of the work public could refer to the following:
Government Owned: It is true that the US Government funded the original R&D that led to the Internet, and managed the Internet for the first decades. It is also true that many of the networks that make up the Internet are owned by the government and that ICANN derives its authority pursuant to a contract with the US Government. However, most of the networks that make up The Internet are privately owned and most of the network operations is currently conducted pursuant to non-US Government authority. The Internet is not "public" because it is owned by the government.
FCC Title II Common Carriers: Telephone networks are refered to as public networks because they are FCC Title II common carriers. The FCC has declared both in the Internet over cable and the Internet over DSL environments that the Internet is not a title II common carrier (whether Internet services might be non-title II common carriers is a different discussions). Thus, the Internet is not public because it is a title II common carrier. [See Federal Standard 1037C: public switched network: " Any common carrier network that provides circuit switching among public users. (188) Note: The term is usually applied to public switched telephone networks, but it could be applied more generally to other switched networks, e.g. , packet-switched public data networks. "]
Service: Institutions which serve the public such as stores or restaurants may be considered public and fall under certain laws with regard to the public such as forbidding discriminatory service. It is certainly true that many ISPs operate as public commercial entities. However, many other ISPs do not operate as public commercial networks. Some, as mentioned, are government networks. Others might be academic networks (see Internet2), networks at corporations, networks at private institutions, and other variant of a network where only those who are a part of a specific community may access the network.
Trespass: This is a concept of access to physical space. Where access to a space is highly restricted, it is said to be private. Where access to a space is free and open, it is said to be public. When the Internet is described as public, it is generally the definition that people are using. The Internet is public in that everyone has the opportunity to access to that network. There is no trespass barrier to entry; people come and go freely. While access may be denied specifically via one means of access (for example, a college network that serves only the students but not the town), in a competitive market another means of access is likely to always be available giving individuals unrestricted Network access.
Lesson learned? This term public is poorly referenced and easily morphs into something else. When people mean "a network open to all comers (the trespass concept)," this quickly morphs into definition one: communications carriers. And some regulator somewhere will say, well if the Internet is public, then it ought to be regulated just like every other public communications network. We were talking trespass and, magic, now we are talking title II FCC regulation. Neat trick.
EndNotes
[1] See, e.g., GTE.Net LLC v. Cox Communications, Inc., 185 F.Supp.2d 1141, 1143 (SDCal 2002) (defendant stating that Excite@Home was responsible for "the entire Internet Protocol (IP) network from the Cable Modem Termination System (CMTS) located in each cable headend, and from there over an engineered private network to interconnection points on the public Internet.” (emphasis added)); Checkpoint Systems, Inc. v. Check Point Software Technologies, Inc., 104 F.Supp. 427, 439 (DNJ 2000) (stating "Its first software product, a 'firewall' (described below), was designed to address the issue posed by a company's private network ("intranet") connection to a very public Internet..." (emphasis added)); In re Implementation of Section 11 of the Cable Television Consumer Protection and Competition Act of 1992, Further Notice of Proposed Rulemaking, CS Docket No. 98-82, 16 FCC Rcd 17,312, 17,371 n. 38 (September 21, 2001) ("Although cable, wireless and satellite currently are the only technologies in use for distribution of subscription video services, other technologies may become commercially viable. Streaming video over the public Internet or over private, non-cable, fiber-optic networks are examples of such technologies." (emphasis added)).
[2] By way of contrast, compare Websters' definition of public:
1 a : exposed to general view : OPEN b : WELL-KNOWN, PROMINENT c : PERCEPTIBLE, MATERIAL 2 a : of, relating to, or affecting all the people or the whole area of a nation or state <public law> b : of or relating to a government c : of, relating to, or being in the service of the community or nation 3 a : of or relating to people in general : UNIVERSAL b : GENERAL, POPULAR 4 : of or relating to business or community interests as opposed to private affairs : SOCIAL 5 : devoted to the general or national welfare : HUMANITARIAN 6 a : accessible to or shared by all members of the community b : capitalized in shares that can be freely traded on the open market -- often used with go
Merriam-Webster Online, Collegiate Dictionary, Public (2002) <http://www.m-w.com/cgi-bin/dictionary>. Also compare the definition from Black's Law Dictionary:
Pertaining to a state, nation, or whole community; proceeding from, relating to, or affecting the whole body of people or an entire community. Open to all; notorious. Common to all or many; general; open to common use. Belonging to the people at large; relating to or affecting the whole people of a state, nation, or community; not limited or restricted to any particular class of the community.
Black's Law Dictionary, 5th Edition, p. 1104 (1979).
Internet = Private
Island Online, Inc. v. Network Solutions, Inc., No. 99 Civ. 6848 (DGT) 2000 WL 1661435 at *17 (E.D.N.Y. Nov, 6, 2000) Noting that "the Internet is, by no strech of the imagination, a traditional and exclusive public function. Per most of its history, its growth and development have been nurtured by and realized through private action."
See Robert Cannon, Will the Real Internet Please Stand Up: A Quest to Define the Internet TPRC 2002
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