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The Multi-Stakeholder Open Internet: Safe for Another Year

The multi-stakeholder Internet Governance process is safe from being replaced by a government-only top down process. At least for now.

The Internet as we know it has added huge social and economic value to the world as well as to our personal lives and is governed by a broad multi-stakeholder process including the private sector, technical community, academia, civil society as well as governments. Each group has an important role to play and the success of the process is due in large part to each doing what they do best and working together when and where appropriate. For example, technical issues are best left to the technical community while national security issues are primarily the domain of governments.

This multi-stakeholder, bottom-up, process is distinct from and in contrast to a multi-lateral process that only includes governments and their multi-lateral organizations. Internet governance broadly has been, and needs to remain, a multi-stakeholder process. It’s a proven approach that created the open Internet of interconnected network of networks in which anyone can access content and use applications from anywhere on the globe.

Earlier this month, the International Telecommunications Union (ITU) concluded its important quadrennial Plenipotentiary conference in Busan, Korea, where the UN organization’s 193 member countries reviewed the ITU Constitution and Convention, elected its officials and set its agenda for the next four years.

Going into the Plenipot, there were concerns that some governments would use the meeting to impose the traditional top-down, government-led multi-lateral approach and counterproductive regulation to replace the bottom-up multi-stakeholder process. Some observers expressed their concern of a “UN takeover of the Internet.” Others were concerned that heavy handed and blunt regulation, which didn’t recognize the open and global architecture of the Internet, would fragment the Internet into national government controlled Intranets.

The good news is that none of the radical, dangerous or even just counterproductive proposals (such as regulating Internet routing) introduced in Busan survived the Plenipotentiary’s consensus-based process. In fact, the broad consensus acknowledged the importance of Internet governance processes and venues outside of the ITU while, at the same time, recognizing the important role the ITU plays, especially with respect to radio spectrum, capacity building, and working with emerging economies on development agendas.

This success was not by accident. It was the result of more than a year and a half of hard work and patient consultations among policy makers from governments around the world that are dedicated to the Open Internet and multi-stakeholder process. The US Delegation (including private sector, civil society and technical community members as well as government), led by Ambassador Daniel Sepulveda, played a key role in Busan, along with many like minded countries, building a consensus around the value of an Open Internet and the multi-stakeholder process. They changed the debate by understanding the importance of relationships and listening when working with other governments to address genuine concerns, while at the same time, building consensus to reject destructive proposals.

As successful as the Plenipot was, it’s not the end of the story. Governments that want to exert more control over the Internet and replace the multi-stakeholder process are not giving up. They are playing a long game and there are important international meetings in 2015 where they will try again. There is a lot of hard work and difficult discussions to come. But an important lesson learned from Busan is that successful diplomacy and policy through relationships, listening, collaboration and engagement, attributes like the Open Internet itself, can be a winning combination.

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Statement of Jeff Campbell on Open Internet Rules

Cisco supports an open Internet and believes that the FCC should adopt balanced rules without imposing the draconian regulatory requirements known as Title II.

Heavy-handed regulation under Title II could significantly inhibit new investments in broadband networks and limit new innovation and business models.

Consumers should have access to all legal Internet content.  But overly restrictive rules under Title II could limit consumer choice in new and innovative services such as telemedicine, distance learning, and emergency services.  This would be a major mistake.

We urge FCC Chairman Tom Wheeler to continue down the path he originally outlined earlier this year, which Cisco strongly supported in a letter to the FCC.

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Statement of Jeff Campbell on ITA Expansion

“The agreement between the United States and China to expand the scope of the Information Technology Agreement represents a major breakthrough in the global trade agenda. This agreement is expected to eliminate duties on over 200 information and communications technology (ICT) product categories, representing approximately $1 trillion in annual global ICT sales. Now that the U.S. and China have reached agreement, we hope negotiators will resume talks early next month at the World Trade Organization in Geneva to expand the bilateral agreement to include more nations.  In doing so, this will help expand access to affordable technology, which will help improve standards of living and economic development around the world.”

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Time to reform ECPA

Recently, I wrote about the LEADS Act proposed by U.S. Senators Orrin Hatch (R-UT), Dean Heller (R-NV), and Christopher Coons (D-DE), which offers a thoughtful approach to a knotty problem—whether and how governments should be empowered to demand the production of data across sovereign national borders. Their bill suggests that with rare exceptions, governments should not have that authority. Instead, their legislation encourages the development and use of mechanisms for intergovernmental law enforcement cooperation. Their goal is to ensure that law enforcement can access information necessary to protect public safety without creating conflicts between national legal systems. Their bill also addresses another vitally important issue—reform of the Electronic Communications Privacy Act (ECPA).

Now that the midterm elections are behind us, Congress should quickly act to pass common sense ECPA reform legislation. Bills pending before the House and the Senate enjoy strong bipartisan support—and have also been widely endorsed across the entire community of technology providers, privacy scholars, and civil society. ECPA, which predates the advent of the public Internet, is now 25 years old. We should not let another year pass without upgrading the law to require a probable cause warrant whenever the government demands access to the contents of data and communications stored in the cloud.

When ECPA was passed by Congress and signed by President Reagan a quarter century ago, it represented a very forward-looking effort to ensure that electronic messages receive 4th Amendment protections. Some updates have been made over the years. However, the law is still built around core assumptions concerning online data storage that were more relevant in the era of the digital watch than of the smartphone. Changes are necessary to reaffirm the central principle upon which the original law was premised.  We should protect documents stored online against unwarranted intrusions by the government, just as we protect documents that exist in the physical world.

In 1986, cheap ubiquitous cloud-based storage for data and a world full of always on, always connected devices would have been in the realm of science fiction. Now it is our reality. The law should, therefore, also address the fact that data collected in the cloud creates a temptation for the government to demand access from a third party provider rather than directly from the owner.

The current text of the law assumes that data stored online for more than 6 months have essentially been abandoned and deserve fewer protections against governmental demands. Thankfully, most major cloud providers rely upon the reasoning from a U.S. Circuit Court of Appeals decision, which held that we do have a reasonable expectation of privacy in email we store online. It further held that the law as written is unconstitutional to the extent it enables searches without a probable cause warrant. We need to codify these rulings and make them the law of the land.

A legislative proposal to update ECPA penned by its original author, the Chairman of the Senate Judiciary Committee, Senator Pat Leahy (D-VT), would do just that. The bill, which is also co-sponsored by Senator Mike Lee (R-UT), would make three important changes to the current law. First, it would require warrants for content stored in the cloud. Second, it would require that the government notify account holders about warrants used to seize data stored in the cloud. Third, it would impose time limits on orders barring cloud service providers from notifying their customers that a warrant has been executed. A companion bill has won widespread bipartisan support in the House of Representatives under the leadership of Representatives Kevin Yoder (R-KS), Tom Graves (R-GA), and Jared Polis (D-CO). Their bill now has 270 co-sponsors, more than half the representation of the House of Representatives. 

Twenty-five years ago, Congress was forward-looking in passing legislation to protect electronic communications before public email even existed. Now, we need to make sure that legal protections keep up with the times so that we strike the right balance between privacy and security while also enabling innovative new technologies to grow.

Statement of Cisco General Counsel Mark Chandler on Nomination of Michelle K. Lee as Director of U.S. Patent and Trademark Office

On behalf of Cisco, let me congratulate President Obama on nominating Michelle Lee to be Director of the U.S. Patent and Trademark Office. Over the past year as Deputy Director, Michelle Lee has demonstrated that she has what it takes to oversee the Patent and Trademark Office. She’s already taken needed steps to cut the patent backlog, improve post-grant review and improve the examination process.  Once confirmed, she will ensure that the PTO continues to drive American innovation and is a place where all can turn for a fair hearing.  It is my hope that the Senate will confirm her nomination as quickly as possible.