Unlucky 13 in the New Net Neutrality Bill?

Section 13 in the findings of the new Internet Freedom Preservation Act of 2009 contains an unsettling sentence. We are cruising along with all of the standard Network Neutrality provisions, then this hits:

"A network neutrality policy can also permit Internet service providers to take action to protect network reliability, prevent unwanted electronic mail, and thwart illegal uses in the same way that telecommunications network operators have historically done consistent with the overarching principle 11 of non-discrimination."

Carefully worded, a hat tip to industry. Yes, this can help you "take action" against spam. Sounds good to me. But if we dig a little deeper in the bill , "ILLEGAL CONDUCT. —Nothing in this Act shall be construed or interpreted to affect any law or regulation addressing prohibited or unlawful activity, including any laws or regulations prohibiting theft of content."

Probably a standard lawyerspeak disclaimer, but not exactly encouraging for those of us who are looking to protect protocols such as BitTorrent -- the industry scapegoat any time questions arise about legitimate use of the Internet.

This is the precursor to a giant loophole, lets hope they close it before the bill moves forward. If Telcos, Cablecos and other service providers are emboldened to traffic shape based on "illegal conduct," lots of conduct will soon become illegal. Traffic shaping is alive and well, many ISPs have been busted, but if they get a shiny new bill to hide behind, they will claim to be the defenders of Net Neutrality. That is not what we need.