The 'unregulated' Internet has been in jeopardy ever since the Ninth Circuit issued its Brand X Internet Services v. FCC decision last spring. There, the court ruled that cable modem service is a "telecommunications service," thus paving the way for cable broadband to be regulated according to the common carriage regime that grips the telecommunications world. By contrast, if cable modem is deemed an "information service," it remains in a relatively unregulated space.

This will be an immensely important case from a policy standpoint, an existential moment, as it were, about the future of the Internet's legal status. It also points up the creakiness of the old categories that govern communications--much like VoIP also does. "Information service" and "telecommunications service" simply don't signify any more.

Like VoIP, the achilles heel of cable modem being deemed an information service is the compelling demands of law enforcement and specifically the application of CALEA. It would be a catastrophe for the security concerns to override the value of an unregulated Internet. And it would be a catasrophe for Brand X to stand. With a great and memorable case caption like Brand X, we can hope that the Supreme Court will put the cable modem, and by extension Internet, back into the unregulated category of an information service.