Mortal Wombat

Last week the FCC issued an order demanding that Comcast stop degrading the performance of BitTorrent over their network. Importantly, the FCC is indicating that ISPs cannot block or degrade the performance of legal applications or network services.¹

To quote Lessig, “the Commission has clearly recognized the importance of the Internet as a platform for technological growth and innovation.” To me this reads as the FCC recognizing at least to some extent that ISPs should be regulated more like utilities than like entertainment providers. The order does not establish law requiring network neutrality, but it establishes FCC jurisdiction over ISPs, and it shows that the FCC intends to enforce its 2005 non-binding Internet Policy Statement — which states that the FCC doesn’t want companies to interfere with access to content or competing services. Furthermore, as Harold Feld points out, the FCC clearly states its belief that government regulation to protect the open and vibrant character of the Internet furthers First Amendment values.

This is a Very Good Thing.

Further analysis:
/ Lessig’s letter to the FCC
/ Harold Feld — ‘Why This is A Huge Win’

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¹An exception exists if an ISP must target an application or network service for “network management” purposes. However, the FCC’s order makes clear that an ISP cannot run everything through this exception. If an ISP does contend targeting is necessary for network management, the ISP must inform customers of what they are doing rather than secretly degrading customers’ Internet.

Not everything is depressing in the world of civil liberties & Internet politics. I came across some tentatively good news today! We’ll see how it is applied as the case continues.

Someone actually decided to test the underused ‘misrepresentations’ section of the DMCA — the part that is supposed to limit the chilling effects of the DMCA. So far it has failed miserably to accomplish this goal, but in theory companies are liable for damages if they send cease & desist notices for things that they should know aren’t actually infringements of their copyright. So in this case a district judge sensibly ruled that companies must consider fair use before sending cease & desist letters. HOWEVER, it’s not clear whether this judge or any other will actually hold the companies accountable. The company will likely just get off by saying “oops.”

The part of Wired’s article that I found most galling though was this:
“Universal argued that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices.” Apparently Universal believes that intimidating large numbers of innocent people is better than actually considering whether or not the cease & desist notices they send are actually legitimate.

AT&T recently made clear that their customers are not permitted to use BitTorrent or other P2P apps on the company’s 3G high-speed wireless data network. This is significant because in the future most people will be using high-speed wireless data networks for a significant part of their Internet usage. Given that AT&T & Verizon may eventually be the only companies providing such access in the U.S., their choices about what protocols and parts of the Net customers can access will carry a great deal of weight. Even if people maintain unfettered, neutral connections at home (a questionable assumption, given Comcast’s actions), a non-neutral wireless Net could significantly hamper the continued ability of the Net to foster innovation & level playing fields.

The Department of Justice yesterday submitted a filing to the FCC regarding that body’s ongoing consideration of Network Neutrality regulations. I’m not quite clear why the DoJ is in fact commenting on this issue at all, but the department made it very clear that they oppose network neutrality regulations. Here are my thoughts after reading the filing:

First, two somewhat valid points they make:

+ The DoJ says that no evidence has been shown of “systematic or widespread” abuse in the USA that would require a remedy. They are ignoring abuse outside our borders as “irrelevant”, and they say that abuse in the states was quickly remedied by reactive steps. This seems like a somewhat legitimate point, but only if we can actually trust the government to step in effectively when abuses do occur.

+ They say that not everyone agrees on exactly what network neutrality regulations should entail. That may be a valid point.

And now their two nonsensical arguments:

- They pull out the entirely irrelevant comparison to the USPS. It’s difficult to tell if they’re being intentionally dense or if they are actually that confused about the topic. They say that, like the USPS, ISPs should be able to charge differing amounts to end-users based on how fast they want their connection to be. I agree, of course. No one is saying that ISPs shouldn’t be able to offer differential pricing to end-users based on speed / bandwidth!

- And the DoJ suggests an absurd concern that if we don’t allow end-user ISPs to charge various content providers, then end users may be footed with the entire bill for network upgrades. They fail to note that the current network has in fact been built without end-user ISPs charging content providers, and yet the entire bill has not been footed by end users. Because content providers already pay their own ISPs lots of money for a fast connection, and that money filters down to the end-user ISPs (broadband providers) via peering arrangements, etc.

Nate Anderson, on Ars Technica, describes the actual issue best:

“Companies and consumers both currently pay to access the Internet; the money comes from both ends of the connection. And both groups are paying for complete access to the “cloud.” If network operators attempt to go after extra revenues from web operators, it would create a huge group of people “inside the cloud” that want to be paid. Instead of setting up a hot new web site, paying for plenty of bandwidth, and launching your business to the public, web site operators would need to pay not only their hosting provider but also Comcast, AT&T, Verizon, and a gazillion other networks that sit between them and their potential customers. Getting on the information superhighway thus becomes only the first stop on a very long toll road.”

The general purpose computer has been really important in fostering the huge amount of innovation that has accompanied the growth of the Internet. Many (most?) exciting new Internet applications have come about not because big companies invented them, but because ordinary people or small “niche” companies decided to experiment with something new. This experimentation has been made possible by the existence of two circumstances:

• general purpose personal computers that can run any applications

• a “neutral” (Internet) network that carries data from any application

There is no guarantee that these conditions will remain in place, and in fact we must constantly be on the lookout for efforts to change these conditions.

The prevalence of mobile phones, PDAs, iPods, Internet TVs, and a million other consumer devices threatens the “general purpose” PC model. People are increasingly accessing the Internet directly or indirectly through these proprietary “appliances”. These devices for the most part only run applications allowed by the device manufacturer / distributor. If a company such as Skype wants to have their application on one of these devices, they usually must negotiate with the device maker. They may have to pay that company a fee. This not only prevents people from writing their own applications for the devices, but it limits peoples’ ability to run innovative third-party applications. Jonathan Zittrain warns in a Harvard Business Review article of the dangers accompanying this shift from general purpose PCs to proprietary devices.

The importance of network neutrality has been discussed at length elsewhere, but the basic argument is that it would put a damper on innovation if the broadband providers (the telco & cable companies) are able to pick winners in the Internet service and application market. If Time Warner decides to limit the bandwidth alloted to VoIP from any company not paying Time Warner a bribe, for example, then only companies able to pay Time Warner that bribe will be able to gain traction in the VoIP market. (Time Warner customers would be unable to access innovative new VoIP services at competitive speeds.) Time Warner and other cable / telco providers have in fact been making noises about their desire to implement such policies.

I’ll start this blog out by posting something I actually wrote up a few days ago.

So I went ahead and joined the “I want national wireless Internet” Facebook group the other day. I had been sitting on it for a bit, but it seems like it could be turning into a real movement of sorts. I was hesitant to join because neither the group nor the linked MoveOn petition contain information about exactly what they’re asking. [ed: MoveOn has since posted a letter to the FCC with details and lots of important endorsements!] Anyways, the idea is good. And I think I know what the actual Save Our Spectrum movement is about, even if I’m unclear as to what the Facebook and MoveOn groups are about. It’s about applying the following rules to the major upcoming spectrum auction. (This is the auction for the spectrum that will be released when traditional analog TV goes off the air.)

• establish a service rule for broadband services operating in the 700 MHz band that protects the consumer’s right to use any equipment, content, application or service on a non-discriminatory basis without interference from the network provider.

• allow third-party access to spectrum owned by other companies. This “open access” plan to include wholesale access to networks would enable more competitors to offer services
• institute anonymous bidding in auctions to lessen the possibility of bid signalling and bid rigging that studies found to have taken place in prior auctions.

So I’m curious what any Libertarian readers have to say to this. You must admit that the current broadband market could hardly be considered a “free market”. It is built on government giveaways and government protection. I really hesitate to see a few large cell phone companies controlling all of the potential wireless broadband spectrum. (Sprint already controls most of it, iirc.) Of course I don’t think the government should be its own ISP either, because that’s just asking for trouble. I wouldn’t mind the government providing the spectrum if it is able to somehow apply a fair policy allowing companies access to it. (This would work great if open (shared) spectrum really works, which I don’t know enough about yet.) But anyways, since the government has already announced that they are auctioning off the PUBLIC spectrum, is it really too much to ask that they require the highest-bid purchasers to follow certain rules that protect the PUBLIC interest. If there are no regulations, Sprint & co. will simply sit on it (blocking competition) or add it to their proprietary 3G / 4G networks.

Tangentially, and more generally, what do Libertarians have to say about the current tradition of treating wireless spectrum, ideas and creativity (so-called “IP”) as property? What about when these could operate as a commons, thus allowing more freedom and individual autonomy? Got to go or I’d write more now.