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legal basis for NSF Support of Internet
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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
May 4, 1994
Re: legal basis for NSF Support of the Internet
The following is a memorandum written by attorney Martin
Garthwaite, outlining the current legal basis for NSF funding of
the Internet. The statutes make for an interesting read, at
least I thought so. For example, as a result of the 1991 High-
Performance Computing Act, USC 5512 (c)(6) requires NSF to
develop a network that will:
(6) have accounting mechanisms which allow users or
groups of users to be charged for their usage of
copyrighted material available over the Network and,
where appropriate and technically feasible, for their
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
usage of the Network;
^^^^^^^^^^^^^^^^^^^^
That is to say, the NSF was required under the 1991 HPCA to
develop accounting mechanisms that will allow users to be charged
for network usage (where "appropriate" and "technically
feasible"). Persons interested in what is happening to the
Internet may find a few other interesting items in the
memorandum. - jamie love (love@essential.org)
ENABLING LEGISLATION FOR NATIONAL SCIENCE FOUNDATION
SUPPORT OF THE INTERNET
May 4, 1994
Martin Spencer Garthwaite
Taxpayer Assets Project
(202/387-8030/martin@essential.org)
Authority for National Science Foundation (NSF) activities
relating to the Internet is found in 42 U.S.C. 1862, 15 U.S.C.
3707, and 15 U.S.C. 5501 et seq. The NSF was authorized in 1985
by Public Law 99-159, codified in 42 U.S.C. 1862(a)(4), "to
foster and support the development and use of computer and other
scientific and engineering methods and technologies, primarily
for research and education in the sciences and engineering." In
executing this grant,
the Foundation is authorized to foster and support access by
the research and education communities to computer networks
which may be used substantially for purposes in addition to
research and education in the sciences and engineering, if
the additional uses will tend to increase the overall
capabilities of the networks to support such research and
education activities.
42 U.S.C. 1862(g).
This language opened up the NSFNET beyond the strict research
environment it had previously served and formed the basis of the
"acceptable use" limitation on use of the NSFNET backbone. As
far as funding flowing to universities for LANs and to regional
network providers, the NSF was authorized to support "cooperative
research centers" in 1986 by Public Law 99-502, codified in 15
U.S.C. 3707. It says in paragraph (a), "The National Science
Foundation shall provide assistance for the establishment of
Cooperative Research Centers. Such Centers shall be affiliated
with a university or other nonprofit institution, or a group
thereof."
The National High-Performance Computing Program was
established in 1991 and was codified in 15 U.S.C. 5501 et seq.
The NSF has interpreted this legislation to allow the creation of
a very high-speed Backbone Network Service (vBNS) used only to
link NSF supercomputing centers, to begin the privatization of
backbone service, and to create the Network Access Points (NAPs).
5512. National Research and Education Network.
(a) Establishment. As part of the [High-Performance
Computing] Program, the National Science Foundation. . . and
other agencies participating in the Program shall support
the establishment of the National Research and Education
Network, portions of which shall, to the extent technically
feasible, be capable of transmitting data at one gigabit per
second or greater by 1996. The Network shall provide for the
linkage of research institutions and educational
institutions, government, and industry in every State.
Though the preceding paragraph would appear to require
access to the vBNS to a broader range of users than just the NSF
supercomputing centers, the following paragraphs of 15 U.S.C.
5512, particularly (c)(4) and (c)(6), appear to sanction such a
limitation as well as possibly sanctioning usage based charges
for backbone service. Support for NSF plans to role back
subsidization of access to backbone service and to create the
NAPs system may also be found in (c)(3), (c)(4), and (c)(8),
below.
(b) Access. Federal agencies and departments shall work with
private network service providers, State and local agencies,
libraries, educational institutions and organizations, and
others, as appropriate, in order to ensure that the
researchers, educators, and students have access, as
appropriate, to the Network. The Network is to provide users
with appropriate access to high-performance computing
systems, electronic information resources, other research
facilities, and libraries. The network shall provide access,
to the extent practicable, to electronic information
resources maintained by libraries, research facilities,
publishers, and affiliated organizations.
(c) Network characteristics. The Network shall--
(1) be developed and deployed with the computer,
telecommunications, and information industries;
(2) be designed, developed, and operated in collaboration
with potential users in government, industry, and research
institutions and educational institutions;
(3) be designed, developed, and operated in a manner which
fosters and maintains competition and private sector
investment in high-speed data networking within the
telecommunications industry;
(4) be designed, developed, and operated in a manner which
promotes research and development leading to development of
commercial data communications and telecommunications
standards, whose development will encourage the
establishment of privately operated high-speed commercial
networks;
(5) be designed and operated so as to ensure the continued
application of laws that provide network and information
resources security measures, including those that protect
copyright and other intellectual property rights, and those
that control access to data bases and protect national
security;
(6) have accounting mechanisms which allow users or groups
of users to be charged for their usage of copyrighted
material available over the Network and, where appropriate
and technically feasible, for their usage of the Network;
(7) ensure the interoperability of Federal and non-Federal
computer networks, to the extent appropriate, in a way that
allows autonomy for each component network;
(8) be developed by purchasing standard commercial
transmission and network services from vendors whenever
feasible, and by contracting for customized services when
not feasible, in order to minimize Federal investment in
network hardware;
(9) support research and development of networking software
and hardware; and
(10) serve as a test bed for further research and
development of high-capacity and high-speed computing
networks and demonstrate how advanced computers, high-
capacity and high-speed computing networks, and data bases
can improve the national information infrastructure.
15 U.S.C. 5521, "National Science Foundation activities,"
spells out additional responsibilities of the NSF as well as its
appropriations.
(a) General Responsibilities. As part of the [High-
Performance Computing]Program described in subchapter I
[which includes 5512 cited above] of this chapter --
(1) the National Science Foundation shall provide computing
and networking infrastructure support for all science and
engineering disciplines, and support basic research and
human resource development in all aspects of high-
performance computing and advanced high-speed computer
networking;
(2) to the extent that colleges, universities, and libraries
cannot connect to the Network with the assistance of the
private sector, the National Science Foundation shall have
primary responsibility for assisting colleges, universities,
and libraries to connect to the Network;
(3) the National Science Foundation shall serve as the
primary source of information on access to and use of the
Network; and
(4) the National Science Foundations shall upgrade the
National Science Foundation funded network, assist regional
networks to upgrade their capabilities, and provide other
Federal departments and agencies the opportunity to connect
to the National Science Foundation funded network.
(b) Authorization of appropriations. From sums otherwise
authorized to be appropriated, there are authorized to be
appropriated to the National Science Foundation for the
purposes of the Program $213,000,000 for fiscal year 1992;
$262,000,000 for fiscal year 1993; $305,000,000 for fiscal
year 1994; $354,000,000 for fiscal year 1995; and
$413,000,000 for fiscal year 1996. [These amounts may be
increased by HR 820 to $339,00,000 for 1994 and $404,000,000
for 1995.]
15 U.S.C. 5512(g) requires the Director of the Office of
Science and Technology Policy to report to Congress within one
year of 12/9/91 on
(1) effective mechanisms for providing operating funds for
the maintenance and use of the Network, including user fees,
industry support, and continued Federal investment;
(2) the future operation and evolution of the Network;
(3) how commercial information service providers could be
charged for access to the Network, and how Network users
could be charged for such commercial information services;
(4) the technological feasibility of allowing commercial
information service providers to use the Network and other
federally funded research networks;
(5) how to protect the copyrights of material distributed
over the Network; and
(6) appropriate policies to ensure the security of resources
available on the Network and to protect the privacy of users
of networks.
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