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It’s, Like, Even Steven for Everyone

August 20th, 2009 · 10 Comments

I’m not sure I’d go so far as to say “net neutrality is crap,” but John Dvorak’s column sums up the substance if not quite the tone of my feelings on the issue—which is to say, it’s a  disconcertingly nebulous solution to a thus-far largely hypothetical problem. It’s certainly understandable that people think it’s important to preserve the openness of the Internet, and I guess I can imagine scenarios where this might justify some form of regulation as a specific response to practices that were undermining it. But I’ve never understood the sense of urgency to do something about it now, rather than seeing whether any of these doomsday scenarios actually manifest themselves, and whether market checks and existing oversight mechanisms are sufficient to remedy whatever problems arise. Maybe I’ve said this before, but in a lot of ways the threat of potential regulation seems like it might be more useful than any concrete set of rules. The effect of the threat, after all, is to make ISPs wary of doing anything with the effect of squelching innovation or constraining users to the point that the backlash provokes a congressional response. Any actual regulation will have to more specifically describe practices or architectures that are ruled out, which likely means precluding some beneficial along with some pernicious ones: “Don’t be evil” is a catchy motto, but you can’t actually make it a legislative mandate.  If specific regulation ever does become necessary, we’ll have a much better idea of what it ought to look like when it’s a response to a real-world problem.

Update: Folks reasonably enough mention Comcast’s use of DPI to throttle BitTorrent, but I think this is a case in point.  We’ve had a combination of consumer backlash and an FCC move to get them to use a protocol-neutral mechanism for congestion management, and I’d rather like to see how that plays out. If Comcast succeeds in getting the FCC order overturned, it remains to be seen whether they’ll actually reinstate the old policy in light of the bad press it’s attracted. Supposing both those things happen, though, I think it’s important to be clear that the offensive aspects of this are the method used and the fact that they were deceiving people about it. So if some further action is necessary, I’d think the appropriate remedy would be for the FTC to enforce transparency about these practices—online or off, you can’t degrade a service people paid for and lie about it—and an amendment to ECPA to clarify that DPI for congestion management doesn’t fall under the “ordinary course of business” exemption.

Tags: Tech and Tech Policy



10 responses so far ↓

  • 1 Nick // Aug 20, 2009 at 8:41 pm

    By the same token, though, a foamingly rabid group of net partisans clearly willing to scorch the earth for this issue probably adds weight to the threat of legislation, but doesn’t seem to make preemptive legislation terribly likely.

  • 2 Jay Levitt // Aug 20, 2009 at 9:26 pm

    When you say “largely hypothetical”, is it because you haven’t been following the various actual examples so far, or that you don’t think that either (a) they apply or (b) net neutrality legislation would help?

    The most readily available example: Comcast blocked BitTorrent traffic – by forging TCP packets in a man-in-the-middle attack, no less – while repeatedly insisting that it didn’t.

  • 3 JustinOpinion // Aug 20, 2009 at 9:33 pm

    The problems that net neutrality aims to address are not purely hypothetical: numerous ISPs have already made forays into non-neutral routing. For instance: prioritizing their own services over competitors, announcing dubious partnerships with content providers, polluting some kinds of traffic (e.g. peer-to-peer), redirecting some kinds of traffic (e.g. DNS), injecting ads, and so on. Some of those already require sysadmins to jump through hoops to un-break the Internet.

    Many internet providers are simultaneous content providers, and there is a clear conflict-of-interest and danger of monopoly abuse. It’s hardly far-fetched to suggest their forays are a prelude of serious problems. It is also difficult for the free market to really work in contexts where consumers may have only one viable choice for Internet access in their area.

    There are a wide variety of net neutrality proposals. Some may be hopelessly vague, but others are succinct enough to become useful legislation. In fact all that may be needed is the application of existing anti-trust laws, or creating a variant of current common-carrier laws, directed at ISPs.

    I’m pretty sure the net-neutrality proponents will gladly shut up as soon as ISPs both stop announcing plans to segregate traffic, and stop breaking the Internet bit by bit.

  • 4 JackFrost // Aug 20, 2009 at 10:45 pm

    The “urgency” is related to the old saying: easier to beg forgiveness than to ask permission. Once the practice of prioritizing, categorizing and filtering of internet packets by the companies responsible to just get us the packets takes place, it will be very easy for them to claim it is too expensive, to onerous to go back to being simple undiscriminating providers.
    (which, btw, might even be technically true: most of the urge to do this prioritizing is because it is probably cheaper to avoid building out their networks and instead put some filtering “intelligence” at the ends to drop out whatever doesn’t pay. Witness the proliferation of fees etc on cellular networks for an example)

  • 5 Julian Sanchez on the strange enthusiasm for net neutrality « Manifest Density // Aug 21, 2009 at 12:17 am

    [...] Worth reading.  I think he’s right that to some extent this phenomenon is born of geeks in search of a cause to fight for — certainly this is something I’ve been guilty of.  On the other hand, the practical level of competition in the US broadband market is appalling (if understandable).  Comcast’s monkeying with bittorrent; various ISPs’ hijacking of the DNS system; Rogers’ throttling of encrypted traffic; all of these have been fuel for the fire.  And although we haven’t crossed the threshold beyond which the market can’t be expected to correct the situation, these businesses’ poor decisions have at least made such an event seem plausible. [...]

  • 6 Julian Sanchez // Aug 21, 2009 at 9:15 am

    Jay: (c) a case where the FCC moved to stop the behavior under its existing authority, and where it remains to be seen how consumer backlash will influence the company’s behavior if the FCC order ends up getting overturned. To be sure, if neither proves sufficient, let’s talk legislation. But the best remedy in that case, I’d think, is not some generalized “net neutrality” bill, but an amendment to the Wiretap Act.

  • 7 Turbulence // Aug 21, 2009 at 10:51 am

    I’m surprised to see you citing such an ignorant troll Julian. I mean, this piece was really really dumb. For example, of course the term “net neutrality” is vague. You know what else is vague? Terms like “secure”, “unreasonable searches and seizures”, “probable cause”, “warrants”, and “particularly describing”. But no one would argue that the fourth amendment is crap and must be ignored. Reasonable people understand that any single legal phrase won’t make sense completely by itself; it has to be read in context.

    The notion that working to get net neutrality legislation in place means we cannot work to fix problems like rural internet access or spam or what have you is silly. If everyone abandons net neutrality, those problems are not more likely to be solved. They’re largely independent and they require work from largely disjoint sets of people. I mean, you can always argue that because other problem FOO exists, we must never try to solve BAR. How can you possibly go enjoy yourself with friends at a restaurant tonight when there are STARVING CHILDREN in the world?

  • 8 Mike // Aug 21, 2009 at 11:01 am

    The only reason I think that regulation is reasonable here is that a market does not exist in internet access. Complaining to their legislature is the only way most consumers can actually influence ISPs, because in at least a large plurality if not a majority of people have only one ISP choice. When internet access has become so necessary to a modern life, and in many cases incredibly necessary for modern business, just turning off the cable is not a reasonable option.

    I am completely dissatisfied with Time Warner’s internet service – I have had problems that took months to fix and for which *I* had to troubleshoot their network because they were incompetent to do so. But I am still with them because the only options are Time Warner or no internet. In such a situation, Comcast can weather whatever criticism it wants from its users because that criticism will not affect their bottom line. When there is a de facto monopoly, there is no market force that can effect it. In this case only do I support consumer protection legislation, and it seems better to have it applied by a legislative process in a general rule than by FCC fiat in specific cases.

  • 9 RickRussellTX // Aug 21, 2009 at 1:39 pm

    If you want a more interesting example than Comcast+Bittorrent, do a Google search on “blocking Vonage”.

    In 2005, many ISPs started to block Vonage IP phones because, well, they wanted to sell you their own IP phones.

    The disturbing thing is that many of these blocks started right after an ISP was fined $15K for blocking Vonage, when ISPs realized that $15K isn’t a lot of money to pay for the opportunity to upsell thousands of your existing customers to switch to your digital phone service.

    And it’s never really stopped, although the FCC has been pretty conscientious about investigating incidents.


    You could see why Vonage (and people who use their services, like me) would like some sort of formalized regulatory protection — this constant bickering with local ISPs is a cost that is passed to customers, and we never know when some local administrator at the telco or cable company could cut off our phone service.

    And if there is no shield law and a new FCC regime decides that this sort of filtering is no big deal, what is to prevent them from moving on to other services? Yeah, we know you like to buy music from iTunes, but it takes *forever* to download. We can guarantee that CableCo MusicStore will always have fast downloads! And those Google searches take forever too — why not try CableCo Search?

  • 10 DivisionByZero // Aug 21, 2009 at 3:39 pm

    Another issue to consider is bandwidth caps. Let’s say you are CableCo and making a fat profit off of your cable subscribers but along comes Hulu and now you cable subscribers can get all of the television that they like over RTMP. Since the subscriber no longer needs the cable subscription they drop it. Poof. Cable as a business model is gone. So, the clever CableCo figures out the average amount of data that would be required to watch HD content for the average amount of time that the average consumer watches TV and then they set a bandwidth cap at half of that amount. When the consumer goes over that limit they get charged just exactly enough to make up for the loss in cable subscription revenue. Convenient. They are not limiting RTMP traffic but the bandwidth limit ends up being a de facto limit on RTMP traffic.

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