Exclusive

The regulator is sounding out opinion from ISPs and consumer groups on traffic management, which it sees as the only aspect of the US "Net Neutrality" debates applicable to the UK.

In the US, the debate was politicized and emotive; pressure from left-wing activists attempted to push both Congress and the FTC into passing pre-emptive technical regulations. At the loonier end of the debate, some called for compulsory nationalisation of the private assets, without compensation.

Here the debate is more rational; Ofcom doesn’t agree that pre-emptive rules must be made, and favours a hands-off approach.

A consultation was launched in June.

"Ofcom stressed that they are open-minded about how they achieve consumer transparency, eg self-, co-, or proper regulation but they also pointed to Commissioner Kroes’ statement that ‘transparency is non-negotiable’," we learn from the notes.

But Ofcom won’t push the ISPs to present the traffic management techniques in a standardised format. And ISPs present reflected their unease that shopping comparison sites might be tempted to weigh in.

"Several ISPs expressed their wariness in relation to third party websites who often lack independence," according to the notes.

BT has circulated a draft set of principles to ISPs – which we’ve also seen – with a number of commitments. These include open access: "We will not block any legal service or seek to charge content or applications providers for basic service."

An individual user’s experience will depend on the access level/technology purchased and any relevant contractual conditions" – and a commitment to freedom of expression. BT would also provide "an indication of the minimum and general level of experience our customers can expect".

It leaves ISPs "free to deploy techniques to manage congestion and optimise the performance of the various applications using their networks", including prioritising time-critical applications and limiting the throughput of non time-critical applications.

ISPs haven’t been impressed by the evidence Ofcom offered.

"Ofcom’s evidence for negative effects of traffic management mainly consisted of statements from bloggers and forum users, eg ‘my provider’ is degrading my peer2peer speed 24/7," ISPs note.

"It may be necessary to highlight that this ‘evidence’ does not constitute evidence but rather consists of assumptions that may as well be explained by general network congestion or other factors that affect the user experience."

The phenomenon of users thinking they’re being throttled when they’re not has popped up before – see our story on the man who discovered his net wasn’t neutered for an example of the persecution complex. What made that story unusual is that the persecuted blogger has several RFCs to his name: demonstrating that hysteria can affect even veteran internet experts.

But that’s over there.

Interestingly, Google will be entirely absent from a day-long net neutrality seminar hosted by the Broadband Stakeholder Group next week. Attendees include Ofcom and EU reps, CDNs and network vendors, ITV and Canvas, and all the biggest ISPs. It’ll be left to Skype to argue the case for a Free Lunch.

Google and Verizon agreed a set of draft principles this month which if they find broader support, as looks likely, will probably kill the political issue Stateside.

By the mid 1990s it had become pointless to compete with Microsoft in operating systems and office software – and investment in potential competitors dried up. The best you could hope for as a software company was to carve out a niche as part of the Windows Office system; this was a very small niche indeed.

The same thing is happening today with web services. But what Google and other web giants are doing goes largely unnoticed, even by analysts, pundits and Presidential advisors. What they are able to do is use their scale, and clever and cynical politics to obscure how they’re solidifying their competitive advantage. In particular, they’re swearing allegiance to (and lobbying for) an idea which doesn’t apply to their operations, but which will keep smaller competitors out of the market. A Zoho, for example – or the next new YouTube.

To understand this, you have to keep in mind that there isn’t really such a thing as ‘The Internet’, which may sound strange. It might be even stranger to consider that the internet was never designed as a masterplan to be ‘The Internet’, thankfully, as it turned out.

Instead of one network, picture lots of private networks. The internetworking protocols (the clue’s in the name) provide guidelines for some lowest common denominators by which these private networks can cooperate.

The good thing is that the architects’ more modest ambition of "internetworking" succeeded where many grand plans had failed. It explains why the internet is so resilient, and why it’s so hard to regulate, or control. The downside is that it’s hard to improve upon today’s internet, either, since innovation chugs along at the pace of the slowest significant network.

But one way around the bottlenecks is permissible. Deliverers of content and services can climb off the public internet, and do deals directly with the customer-facing networks to which you or I subscribe. Instead of making a journey of two dozen hops around the world, the material need only take two or three.

This is what Google, Amazon and others do. They operate private internets of their own, and peer with the largest ISPs.

Read more at The Register…

The term long since ceased to mean anything – it now means anything you want it to mean. But as a rule of thumb, advocating Neutrality means giving your support to general Goodness on the internets, and opposing general Badness. Therefore, supporting Neutrality means you yourself are a Good Person, by reflection, and people who oppose Neutrality are Bad People.

This is a wonderful thing, and the beauty is, it’s all so simple. It’s like the Good Guys Wearing White – the Bad Guys oppose Neutrality. And because Neutrality is anything you want it to be, you have an all-purpose morality firehose at your disposal. Just point it and shoot at Baddies.

But best of all is that you get to define the Baddies, raise a lynch mob, catch them and hang them – before somebody has had a chance to ask "Where’s the harm, exactly?".

This time the accusation of Neutrality Violations is being turned on copyright holders, minority groups – and anyone who wants a network to run the way they want it to.

Rights for some, but not all

Now you may be thinking that it’s strange that in an age when we keep being told that thanks to technology "we’re all creators", creators’ rights must go out of the window. Surely these digital rights should be being strengthened – as new sources of money are available to the talented, and as old middlemen melt away? Has a technology ever been invented that when allied to copyright, makes creators less independent, or poorer? Not until now.

But not everybody sees it this way. Copyright messes up the smooth running of the networks, it’s a spanner in the machine-driven cybernetic utopia. It also costs network operators money – paying the pesky talent who create the stuff that generates the demand. And it’s impossible for a machine to do: an algorithm is unable to spot and nurture creative talent, in the way a studio boss or a publisher or a label could find and nurture acting writing or performing talent. The machine can’t compute that. And of course, the machine can’t create art: when algorithms are set to write a composition (or when, say, Cory Doctorow attempts to create readable prose) you can tell instantly something is missing.

So Google’s front groups such as Public Knowledge and FreePress – they fly under the flag of "citizens groups" or "consumer rights" groups, but are really two of Google’s most potent arrows in its lobbying quiver – are now deploying the morality firehose on copyright. Anyone policing the internets for copyright infringement will be violating neutrality, say the groups. Therefore it shouldn’t be permitted. Presumably the same logic can be applied to policing the internets for anything: a paedophile "neutrality" maybe being violated somewhere – which would be awful. It’s economically and technically illiterate of course, just as you’d expect. Nobody at Public Knowledge or FreePress has ever done a day’s honest toil at a business in their lives – their prejudices are evident. But the groups have also rolled out ethnic minorities, alarming them that without Neutrality, they’ll be erased. The National Hispanic Media Coalition, for example, is standing right behind the Neutrality firehose. But imagine these two examples.

How ideology busts the citizens’ networks

In the first, a community of citizens in a small town – let’s call it HappyVille – decides to mutually own and operate their town’s network. In order to defray the cost of buying bandwidth, they grant the HappyVille Co-Op Network a video-on-demand service. Punters pay HCN their $3.50 a movie knowing that the profit generated maintains the pipes. In order to keep the HappyVille citizens who prefer to get their copyright content illegally, however, they create a fast lane that goes only to TVs, for delivering the movies. This keeps the Torrenters happy, too. The HCN serves one happy town.

But that could be illegal under Neutrality rules. It would only take one bitter or ignorant ideologue in HappyVille to complain to the FCC and remind regulators that the Neutrality rules were being broken. Asking "Where’s the harm?" would not be a valid question. The Co-Op has committed a crime against Neutrality: Go string them up.

In the second example, let’s imagine that a diaspora of Latin Americans decide to start their own ISP. They club together to buy cheap international traffic back to Central and South America. Subscribers to the ISP enjoy cut rate VoIP calls to family and loved ones. It offers a community alternative to the scalping rates of large telcos. But voice traffic on an IP network is highly susceptible to latency and jitter – and one relentless Torrent seeder can cause problems. And as above, that one Torrenter can complain to the FCC that Neutrality Crimes are being Commmitted. So let’s close the joint down. No more cheap calls for you. That’s how the advocates seem to like it. One guy with his trousers around his ankles can invoke a virtual national lynch mob.

Ask Whitey; he knows best

There’s something uniquely distasteful about the sock puppet "citizens" groups evoking citizens rights to deprive citizens of choices. Some Progressives have always viewed ethnic minorities as little more than an opportunity for a photo shoot, and then forget about them for the next four years. This is all that, but it’s worse, too: it’s patronising and misleading them. It insults their intelligence. Whitey still decides what kind of networks they are permitted to run. The internet was so much easier before the technology utopians (abetted by Google) decided to write the world’s first technical rulebook for the internet.

When there was no rulebook, you could do what you want technically – and your network either succeeded or failed, according to the laws of physics, or the laws of business. Now you have to pass some arbitrary political correctness test, adminsiered by Comic Book Star Guy. Ain’t life grand?

You have to admire "Neutrality" itself though, and more and more each day. This metaphysical, metaphorical firehose can be anything an authoritarian wants it to be. It allows people who want to be in politics but who can’t do politics (in terms of vision, persuasion, coalition building, honesty) to wield tremendous power. It may not last, since it’s almost certainly unconstitutional, and the consequences leave everyone (except you-know-who) worse off. But it’s a great example of net nerds flexing their muscle.

One strategy is to drive down the value of copyright material on the internet to zero. Google has a ruthless and calculating view of the real value of stuff. It reasons that if all we do on the net is talk to each other, then it’s merely fulfilling the role of a switchboard operator at a Soviet-era state monopoly telco – connecting us, while listening in. That’s a pretty unglamorous business, it doesn’t save the world… and hey, where’s the money?

The YouTube experience has taught Google that the value of “user generated content”, of the “new era of creativity” is as close to zero as a rounding error – while quite irrationally we continue to throw money at DVDs, CD box sets of stuff we already have, Susan Boyle, and even ringtones. That’s all copyright stuff. They are clever people, and this hasn’t escaped their notice.

The other strategy is to drive down the value of the “access networks” to zero. Unable to offer innovative value-add services of their own, the ISPs and mobile networks become interchangeble suppliers, merely undifferentiated suppliers of bits. Hence the “Net Neutrality” scare. Google didn’t invent “net neutrality”, but it lost little time in taking advantage of it, to its own ends. No company in the 25-year history of the net had ever dared propose a technical rulebook for what the net’s operators could and couldn’t do – until Google started to write legislation.

In both cases the entertainment and network “industries” have been the timid architects of their own demise. The networks well may be becoming commoditised bit pipes without Google’s assistance, and the content businesses – by refusing to take elementary steps such as synchronising releases across markets, and monetising P2P file sharing – may too see the value of their assets disappear. But it doesn’t harm Google to speed things along a bit.

Take the two together and you’ll start to see why Google is building those vast power-guzzling data centers. With copyright holders and last-mile service providers unable to realise value, those data centres aggregate all that’s left. Google becomes the internet company by default.

…Read more at The Register

By contrast, the regulator’s rule book for deciding what is permissible on the internet – its content, behaviour and performance – couldn’t be simpler. There isn’t one.

And that’s the case for most countries in the world. Of course, there are established state laws on business, copyright, and defamation that have been extended to the internet, but that’s not the same thing. So the evolution of the technology is the consequence of the private agreements we enter into, between ourselves and the network operator, as the consenting adults we are.

So today’s internet is an anarchy, where users can drive what they like. And despite the fact that bad, anti-social applications can run riot – and they do – people seem to like it this way. It’s an anarchy which carries the overwhelming consensus of internet users. No one (actually, almost no one) is Marching With Placards demanding that some state agency protect us from ourselves, and write a book of rules specifically for what should be technically permissible.

For almost twenty years, internet engineers have persuaded regulators not to intervene in this network of networks, and phenomenal growth has been the result. Because data revenues boomed, telecoms companies which had initially regarded packet data networking with hostility, preferred to sit back and enjoy the returns.

But that’s changing fast. Two months ago the US regulator, which scrupulously monitors public radio for profanity, and which spent months investigating a glimpse of Janet Jackson’s nipples, decided it needed to start writing technical mandates. And so off it went.

Unnoticed by almost everyone, so did the EU.

“It’s the revenge of the unemployed Telecomms Regulator”, one seasoned observer in Brussels told us this week. “The internet really put them out of business. Now they’re back.”

Here’s a glimpse into the hitherto unreported politics going on in Brussels. The decisions being made are historic: the consequences dictate the future architecture of our networks, with implications worth billions of Euros.

A whole new rule book

The driving force behind the new rules is surprising. It’s not the business world’s natural bureaucracies, the telecoms companies with their ancestry as state-owned or state-regulated monopolies. It’s actually Google.

The power play is over how data intensive, high quality services such as video will be delivered. Only a handful of large US companies make any significant revenue from the web. In Web 2.0 land, start-ups talk of being in the “pre revenue phase”.

While Google monopolises the “web economy”, effectively setting the price of doing business on the web, it’s a small pot compared to incumbent operators, either mobile or fixed, who send almost every household at least one utility bill a month. Even with the turnover, or “churn” of the mobile business, that’s a stream of income web companies such as Amazon.com and eBay can only dream about.

Google’s plan is simple. It will simply remove the ability of infrastructure companies to make money. Google can avoid competing with access networks, because it doesn’t need to. By pouring billions into content networks instead – its own private internet – it can stand by and watch those last mile businesses become increasingly unprofitable.

Today, providing an access network for the consumer to use data is not a profitable business: there just aren’t enough people willing to pay for it. But TV and mobile telephony have proven demand. So the operator can use the profits from cable TV or mobile to invest in the data capacity. We’re seeing the fruits of this cross-subsidy model in the UK, with fast wireless broadband now available on pay-as-you-go for under a tenner a month. These national data networks couldn’t have been built if the operator didn’t have the prospect of steady income from telephony – only a fool or a gambler would have have invested the capital.

Google’s strategy was in evidence in its “bidding” for a chunk of wireless spectrum in the US this year. Google tabled a bid not to win the auction, but so it could enforce rules on the eventual winner, Verizon. And these rules (eventually watered down in a compromise) made it much harder for the winner to cross subsidize data using those traditionally profitable voice revenues.

It’s under the flags of “open access” and “net neutrality” that the battle is being conducted – and now neutrality has arrived in Europe.
What’s on the table

Last year the Commission formally proposed the establishment of a new pan-European watchdog, the ETMA or European Telecom Market Authority, taking over many of the powers of the 27 member states’ national regulators such as OFCOM. This year, discussions on telecommunications reform (“The Telecoms Package”) began in earnest, and this included the establishment of a super-regulator.

In September, the Commission published an amendment to the Universal Service Directive, or to give its official title, Directive 2002/22/EC of the European Parliament and of the Council.

A new Article, 22.3, proposes:

In order to prevent degradation of service and slowing of traffic over networks, the Commission may, having consulted the Authority, adopt technical implementing measures concerning minimum quality of service requirements to be set by the national regulatory authority on undertakings providing public communications networks.

This establishes a role for the new super-quango: deciding what’s acceptable performance. It’s a benign-sounding intervention, but nevertheless it’s a precedent – the draft of the first chapter of a book that has never before been written.

However it was at the European Parliamentary committee stage that Google scored its coup, asking the Socialist delegation to include language almost identical to the requirement that split the FCC down the middle. Here’s the EP’s draft text:

A national regulatory authority may issue guidelines setting minimum quality of services requirements, and if appropriate, take other measures in order to prevent degradation of service and slowing of traffic over networks, and to ensure that the ability of users to access or distribute lawful content or to run lawful applications and services of their choice is not reasonable restricted.

The key change is that Parliament wants local regulators to set the rules, not the Commission. But at a stroke, Europe inserted itself in the role of deciding what content is lawful, and what applications are legal.

The French Presidency has suggested the following compromise:

In order to prevent degradation of service and hindering or slowing of traffic over networks, and to ensure that the ability of users to access or distribute lawful content or to run lawful applications and services of their choice is not unreasonably restricted, Member States shall ensure that national regulatory authorities are able to set minimum quality of service requirements on undertakings providing public communications networks.

The Commission may, having consulted the Authority, adopt technical implementing measures concerning minimum quality of service requirements to be set by the national regulatory authority on undertakings providing public communications networks.

Amazingly, the historic decision to regulate was inserted without any groundswell of support from the public: petitions, or interventions from Google-sponsored law academics, as was the case with “net neutrality” in the US. Judging from our mailbag, users are concerned with mis-selling, peak/off peak throttling and Phorm, rather than the absence of a Rule Book.

One of the paradoxes of regulating freedom is that once it’s written down, we discover we have less than we had before. From the successful anarchy we have today, the scramble is now on to define “Lawful Applications”, and “Non Discriminatory” network management, which open up a Pandora’s Box of issues.

But will it fly?

Thanks to the intervention of a heavyweight, almost certainly.

Last month Viviane Reding, the Commissioner for Information Society & Media, put the issue on the agenda:

“A cynical observer may note that in the end this whole Net Neutrality debate is about hard cash. Dollars and Euros. That it is about trying to use regulation as a means to get a better position around the negotiation table. That this is just about arm wrestling between big network providers and successful providers of internet services,” she said, accurately.

An accurate summary indeed. But observers noted that rather than dispassionately viewing the competing interests, Reding has already anointed one side as the Good Guys.

“Net Neutrality is seen as the Guardian Knight that will allow the proverbial ’2 guys in a garage’ to be able to amaze the world with the next big thing.”

(One of the guys in the garage she referred to was Skype. Last year eBay wrote off over $1bn from its books and admitted that Skype had never been profitable and would never become a significant business.)

What it means for you

Not surprisingly, one of the few voices raised in objection to the change is from the Free Software movement.

The Foundation for a Free Information Infrastructure (FFII) which fights software patents, says “net neutrality” is false marketing. “This is an invasion of the regulator in the software market, and it should be fought back vigorously” the group says in a statement (http://action.ffii.org/telecom_package).

Better no rules, than rules that are decided undemocratically, by powerful lobby groups behind closed doors.

Others fear opening a Pandora’s Box, too.

Pierre Larouche, Professor of Law at Tilberg University, in the Netherlands, is a veteran of legal skirmishes with large telcos in Europe, and remembers the disdain with which they viewed the new internet.

“Edge innovation was disbelieved by the big telcos.”

However he’s skeptical that tentative regulation will help.

“We’re defining it in terms of a regulation: but it’s a nothing.

“There are fears of vertical integration – but if the retail access market is competitive, the people will jump over the Walled Garden.”

Abuses of power that historically have been dealt with by Competition Law, become “consumer issues”, justifying ever-deepening intervention. So the rules become ever more detailed and prescriptive.

“It’s the Dangerous Dogs Act,” thinks Martin Cave, Professor at Warwick Business School and the leading authority on regulation practice.

“The case for legislation is at best not proven.”

But in practical terms, it’s a power play. Richard Bennett, the American engineer, who helped draft the twisted-pair Ethernet and Wi-Fi standards, was also in Brussels this week to discuss the regulation.

He noted that private internets now deliver much of the new video content, by bypassing the public internet. Akamai has 34,000 servers installed at ISPs’ data centres delivering 20 per cent of internet content by volume.

Another is Google, which is investing $1.5bn a year in infrastructure.

“Why is it OK for Google, Akamai and Limelight to build fast lane access but not legitimate for telecom operators to build infrastructure that does the same thing?” he asks.

“Preserving the value of that infrastucture is important to Google. If a telco introduces QoS (quality of service), that nullifies it.”

He describes pre-emptive legislation as “the prohibition of a sale”. Examples of services prohibited by the neutrality legislation including Gaming ISPs which guarantee low ping times for gamers. Leave it to the customers and they’ll decide which network architecture works best for them: Google’s, a Telco’s or some combination.

“The consumer is the ultimate regulator.”

What happens next?

EU politics is always more complicated than it appears. Pierre Alexander, a lawyer at Gibson Dunn and Crutcher and editor of European Intellectual Property Law Review, explained that the Commission has no real power here, and may not actually want it. Then again, he points out, its sometimes hides behind the “mandate” of Parliament, and its apparent reluctance to intervene is not always sincere.

The move heads to the Council of 27 members, which can approve it with a Qualified Majority, or reject it with a unanimous vote. The latter is unlikely, he predicts.

The strongest opposition is likely to come from OFCOM, which regards explicit neutrality legislation as unnecessary. Like all NRAs, OFCOM would prefer not to engage in a turf war with a super-quango.

So why did Google blink first?

Left unregulated, we’re likely to see the mutual dependence between content providers like Google and telcos continue. Yet there’s no doubt Google feels the pressure more urgently. While the web advertising market is now comparable to TV in the UK, Google, unlike others, needs to maintain the spectacular growth of the early years, and it has no particular advantages in serving brand advertisers. Given the general difficulty of monetizing web content, you can see how Google feels it needs a helping hand from bureaucrats.

By posing as the consumer’s champion, Google can start to implement its plan for the destruction of value in European telecoms.

First published at The Register. © Situation Publishing 2008

Late last week, the US regulator the Federal Communications Commission issued a landmark assertion of authority over how American operators should manage their networks – and announced a new policy framework. We won’t know what this policy framework will be for days or perhaps weeks – and the statements issued so far don’t help.

What we got on Friday was a self-contradictory press release which simultaneously both encourages and prohibits prioritizing internet traffic by application type.

Er, say what?

Well, it gets even stranger. Accompanying the commission’s release, all five commissioners issued their own individual personal statements – the FCC is split down the middle on the issue – with the two dissenting Commissioners, McDowell and Tate, complaining they weren’t given the text of the release until the last moment.

“Commissioner Tate and I received the current version of the order at 7pm last night, with about half of its content added or modified. As a result, even after my office reviewed this new draft into the wee hours of the morning, I can only render a partial analysis,” wrote Commissioner Robert McDowell.

Well-placed sources also suggested that having voted, they then realised it was immediately unworkable – so the statement was redrafted after the vote. Maybe that’s in keeping with an exercise in “Policy-based Evidence-making”: Take a vote and then try and figure out what you’ve voted on.

Before getting into specifics, let’s look at the problem – and the main problem with making laws out of net neutrality has been painfully obvious from the start. As a descriptive generalisation about what “the internet” looks like, or should look like, it’s impossible to disagree with. You won’t get any dissent about the evils of content discrimination from The Register, because unlike most of the neutrality activists, our livelihoods depend on networks delivering pages like this without favour. But a description is not the same thing as a working principle. Any law or regulation needs to be understood by the engineers working at the business end of keeping the networks running.

Take, for example, a statement such as “driving fast is bad”. This can be implemented and then enforced (as a speeding law). However an observation or generalisation such as “highways are better when people are nice” can lend itself to a metaphor, for example “Friendly Roads”, and made into a policy principle – “drivers should be considerate to each other”. But it’s one that is much harder to turn into a workable, prescriptive regulation.

The problem is that when it comes to implementation, “neutrality” only works as a metaphor. Not only has the internet never been “neutral”, it’s misleading to think of one internet, rather than many interconnecting networks. (The clue’s in the name).

The FCC has now taken upon itself on the task of turning a metaphor into law, and the difficulties are evident from the press release, and chief commissioner Martin’s statement.

Comcast had violated, a 3:2 majority of Commissioners concluded, “Internet users’ right to access the lawful Internet content and to use the applications of their choice”. How? The cable company “monitors its customers’ connections using deep packet inspection and then determines how it will route some connections based not on their destinations but on their contents”.

To support the decision, it quotes the expert advice of MIT’s David Reed, who says that deep packet inspection is not acceptable practice.

But then Martin declares, “we do not tell providers how to manage their networks,” although the whole point of the exercise is to do just that.

So if a network operator decides to favour one kind of application over another, is that OK? Yes, Martin, says. “They might choose, for instance, to prioritize voice-over-IP calls,” he writes in the very next sentence.

But when a VoIP call takes a higher priority, the priority of all other traffic is implicitly downgraded – which is exactly what Comcast has been smacked for. An ISP which stops an internet worm in its tracks is also discriminating, as is one which identifies material by content such as mass spam mailouts, and attempts to block them.

We’re right back to Friendly Roads, again.

The FCC’s judgement came in for immediate criticism.

The Commission concluded that “the end result of Comcast’s conduct was the blocking of Internet traffic, which had the effect of substantially impeding consumers’ ability to access the content and to use the applications of their choice. The Commission noted that the record contained substantial evidence that customers, among other things, were unable to share music, watch video, or download software due to Comcast’s misconduct.”

The commission gave 30 days for Comcast to stop the practice. Comcast actually stopped using the RST technique several months ago, and has since vowed to not discriminate by application.

The judgement is strongly contradicted by the evidence. Comcast’s traffic management was selectively applied to 24×7 Torrent uploaders (“seeders”), and enhanced the ability of Comcast customers to download torrents.

The commission said the technique did not constitute “reasonable network practice” and that economic harm resulted. Again, both of these are contentious – and copyright holders in particular will need a stiff drink as they digest the latter. While Bittorrent has substantial non-infringing uses, most of the traffic is unlicensed downloads of TVs, movies and music, a point not lost on one of the commissioners, Deborah Tate, who pointed out the neutrality principles only protect “lawful content”. So it’s not a Freetard’s Charter.

Probably the only area that isn’t contentious is the judgement that Comcast made deceptive statements to the press about its practices, and failed to inform its customers. Indeed, the failure to alert its PR staff on the deeper issues, and explain the specific practices (rather than deny them outright) may prove to be one of the costliest decisions in telecomms history. And it’s not as if Net Neutrality appeared out of the blue. For three years, activists have been combing the net for “violations” – imaginary, in some cases. (See Man discovers his net wasn’t neutered as an example).

A slow net for all?

Dissenting commissioner Tate drew attention to mediating role the FCC had performed in March, when Comcast and Bittorrent Inc announced a charter to co-operate.

“Rather than concentrating on 10% of the traffic by 5% of the heaviest bandwidth users, we should be ensuring that the 95% of ordinary subscribers are not negatively impacted as they use their internet for their child’s homework, shopping, getting news, sending emails and watching TV and YouTube,” she added.

But the most exhaustive disagreement was expressed by commissioner Robert McDowell in a 12-page statement, in which he unleashes an arsenal of criticism on the judgement.

McDowell begins with the matter of whether the FCC has any business here. Firstly, he says, the FCC has always exempted cable providers from traditional obligations aimed at the AT&T monopoly, specifically the requirement to open up its lines. Instead, cable is regarded as an unregulated “information service” and he doesn’t think the Supremes’ 2005 “Brand X” decision (where ISPs failed to win the right to share cable lines) alters its jurisdiction.

More importantly, he says, the FCC can create principles, but in the absence of Net Neutrality legislation, “we have no rules to enforce”, and is overstepping its bounds.

“If Congress had wanted us to regulate Internet network management, it would have said so explicitly in the statute, thus obviating any perceived need to introduce legislation as has occurred during this Congress. In other words, if the FCC already possessed the authority to do this, why have bills been introduced giving us the authority we ostensibly already had?”, McDowell asks.

But his most damning shots are aimed at the judgement itself.

“The evidence in the record is thin and conflicting. All we have to rely on are the apparently unsigned declarations of three individuals representing the complainant’s view, some press reports, and the conflicting declaration of a Comcast employee. The rest of the record consists purely of differing opinion and conjecture.”

Not only are his fellow commissioners unable to demonstrate harm, they can’t demonstrate what the harm really is.

“Although I have a tremendous amount of respect for each of my colleagues, none of us has an engineering degree… The Internet can function only if engineers are allowed to discriminate among different types of traffic. Now, the word ‘discriminate’ carries with it extremely negative connotations, but to network engineers it means ‘network management’. Discriminatory conduct, in the network management context, does not necessarily mean anticompetitive conduct … By depriving engineers of the freedom to manage these surges of information flow by having to treat all traffic equally as the result of today’s order, the Information Superhighway could quickly become the Information Parking Lot.”

Few expect the FCC’s decision to stand. But for a few months, or maybe longer, Americans may get a flavour of how well the internet works when technology utopians, political activists and regulatory quangos make the engineering decisions. It’s what they’ve wanted – so let’s judge them on how well they do.

“When we act, we create our own reality. And while you’re studying that reality, we’ll act again, creating other new realities.”

On the web today, “political activism” has become a virtual reality game that anyone can play, whoever you are. To succeed, a campaign need not be reality-based at all: it can generate its own fictional cause, complete with symbolic heroes and villains. Eventually the “campaigners” bump into physics, or economics, or real electors – who may have different, more urgent priorities – and the “campaign” vanishes as quickly as it appeared.

But what’s interesting is the real world consequences of the virtual campaign can be the complete opposite of the campaigner’s stated goals.

For example, have a look at this exchange with Ben Scott. Ben is a policy director at Free Press. The outfit describes itself as a “national, nonpartisan organisation working to reform the media”. A goal is a media more responsive to citizens, and more accurate too.

So we were intrigued when it sent out a press release last week titled “Comcast and Cox Caught Blocking BitTorrent All Day, All Night”. Had one of the internet’s most popular applications been KO’d for millions of users? Actually, no. BitTorrent was working just fine.

So we sent a brief note to Free Press, on the basis that if it wanted a more accurate media, perhaps it shouldn’t send out inaccurate press releases, hoping the media reprint the inaccuracies without question.

“Blocking implies that Bittorrent exchanges are somehow prohibited,” we wrote. “In fact, Comcast’s Bittorrent sessions have run faster and more smoothly as a consequence of this network management. So it’s inaccurate to describe it in such indiscriminate terms.”

But there was a more disturbing aspect to this careless use of the word “block”. Free Press had cited a study by students at the Max Planck Institute which showed network management techniques were being used by three ISPs: Comcast, Cox and Singapore’s.

Now, Singapore is not the United States. The government monitors and controls internet use, with the policy of criminalising certain kinds of behaviour. Homosexuality is illegal, for example.

So “blocking”, in Singapore, means that you can’t read certain things, and can’t write certain things either. In 2005, the government successfully prosecuted and jailed bloggers.

Doesn’t equating a repressive block on free speech with network management techniques trivialise the issue? And consequently make it harder for genuine victims of censorship to make their case? But Ben Scott couldn’t see the problem. He mailed us back:

“As you’ll note, we mention only Comcast and Cox and discuss the issue explicitly in the context of US government policy in the Congress and at the FCC. We do not even mention the Singapore case, so I don’t think we are equating the two countries. We do not have any knowledge about Singapore telecommunications practices and could not comment publicly on them.”

He also defended the use of the word “block”. Comcast blocks Bittorrent in the same way as a traffic light may block your road journey; you may actually arrive at the destination quicker. It doesn’t detonate an IED by your car, and force you to walk.

As we’ve explained before, when Bittorrent’s aggressive protocol is heavily used, other applications become unusable – so the cable operator tries to keep everyone happy.

Scott defended the inaccuracy:

“I would disagree with your characterization of RST packets. This is in fact blocking by definition. It think your analogy is inapt. It would be the equivalent of traffic stops sending me back home to start driving to work all over again.”

Only it doesn’t.

Scott produced a few names of “experts” to back up his case. But none of these seem to grasp the distinction, either – and none have experience of building real networks, ones that don’t fall over when the real people use them, doing the things people like to do. Like running Bittorrent, or making VoIP calls.

“I am not opposed to network management. I’m not opposed to throttling heavy users that are dominating congested links. I’m not opposed to congestion pricing. I’m not opposed to network tools that are used to protect security, etc. All networks use these tools. They use them today. They will use them tomorrow.”

What he objected to was less than clear. But it’s hard to draw up a policy when the definition of network abuse is so flexible. The press release of the day said that Comcast’s actions were inexcusable, but Ben had just excused those actions in an email.

Breaking the citizen’s network

But there’s another more profound and disturbing aspect to a citizen’s group declaring what can and can’t be done with technology.

This is how I pointed it out to Scott (apologies for quoting it at length):

The internet gives citizens control over the tools of communication in quite an unprecedented way. This, obviously, threatens institutions which depend on scarcity of information for their authority. I think this is a pretty unique moment in the history of communications.

But I think I’m beginning to see the problem, and it’s a classic information cascade. The “experts” tell you something you want to hear; you provide something the “experts” wouldn’t otherwise have. You get “evidence of abuse”. They get media prominence and social relevance. It’s a dependency cycle. But is it real, or fictional?

The question you must answer is – is the network you / I / we propose one that is sustainable ? One that citizens can use as a template for the future?

In other words, would a temporary injection of RTS packets ever be permissible, or not? We’d soon find out. Joe Public goes to make a VOIP call, and then discovers that Bittorrent has grabbed all the available bandwidth and sockets. And it’s completely out of his control. He can run one application or the other, but not both. We’ve outlawed intelligent and benign network management.

The precedent to remember is The Anarchist’s Cookbook. This was lauded as the ultimate recipe book for creating disruptive stuff – like bombs. But The Anarchist’s Cookbook was created at the CIA. It contained so many bogus instructions that it destroyed far more readers than intended targets. It was designed to fail.

Are you sure you’re not creating a network that’s designed to fail too? If the citizen’s network fails – who benefits?

So far, I haven’t heard a reply.

With its campaign to “Save The Internet”, Free Press may achieve two goals that I fear are the opposite of what its biggest backer, George Soros, intended when he financed the outfit.

One is that it makes the job of genuine free speech activists – who work to promote cases of real repression – much harder.

The other is that it mandates a broken network as the default technical standard for citizens.

You may recall the “Stuckist Net” arguments here several years ago, when readers discussed how feasible it would be to evade lockdown technologies and create computer platforms that remained free and open. That was in the aftermath of CPRM, when it looked like Vista would be a tightly controlled system. That nightmare never came to pass, but the internet retains the ability to be a genuine “citizens’ network”, with even the domain name system open to alternatives.

But for the public to adopt such a system, it must offer a genuinely compelling alternative to AT&T and Comcast. It’s no good advertising yourself as “citizen owned” if your offering falls over as soon as people use P2P. Similarly, selling a network with important features missing – such as VoIP – hardly makes it more attractive. You might get the odd politically-correct masochist, but Joe Public will stay away.

So in banging the drum for the virtual campaign, Free Press makes the big guys even stronger. That’s an odd result for an outfit that says its goal is “to promote diverse and independent media ownership”.

And a hell of a legacy to leave behind.

We have very little idea of how a hysteria can grip sensible, rational people – until it strikes. After Orson Welles’s War Of The Worlds radio broadcast, the public reported sightings of Martians. According to urban legend, a farmer’s water tower was peppered with small arms fire, in the belief that it was a Martian spaceship. During the McCarthyite Red Scare, the FBI’s snitch lines rang red hot with reports of suspected un-American activity. And in Hartlepool 200 years ago, the locals tried and hanged a monkey, suspecting it to be a Frenchman.

Here’s more evidence that the Net Neutrality scare is gripping otherwise rational people, presenting with two classic symptoms of mob-itis.

Professor Steven Bellovin of Columbia reported something strange with his Comcast router recently. Bellovin is a veteran crypto researcher with internet RFCs to his name – and not normally someone who needs attention. Last month he announceD:

“My cable modem service was out for eight hours yesterday. Tests I did – ICMP could get through to various destinations; TCP could not – make me believe that the problem is due to Comcast trying to treat p2p traffic differently.”

Of course. What else could it be?

But yesterday Steve noted -

“I’m happy to say I was wrong, to apologize to Comcast for speculating otherwise, and to thank them for discussing this with me further.

See his blog for details.

In fact it was accidental downtime, which is the usual cause of Things Not Working properly. As Comcast explained:

“We encountered a memory limitation on a handful of our core routers in the PA-NJ area triggered by an external routing event. The switching mode of the routers changed in that situation. In this new mode, subscriber traffic was subjected to an internal infrastructure security policy that permitted ping and traceroute but denied TCP traffic. This caused the discrepancy of website reachability based on subscriber location and the idiosyncratic ping and traceroute behavior.”

Patient abandons Occam’s Razor

So why wasn’t accidental downtime the first suspect? That’s the first sign that the mob is in charge. The most rational explanation becomes the least obvious. Occam’s Razor has been put away and forgotten.

The second is more troubling. Danny McPherson observed this week that:

“If Bellovin can make such a misplaced presumption, anyone can.”

Which if true, is even more profoundly disconcerting. Professor Bellovin knows networks inside out. As an AT&T veteran, he knows telco culture. So if this fellow is imagining monkeys to be Frenchmen, it’s another sign of hysteria.

The consequence is the devaluation of technical authority: we’re all as stupid as each other. But once you replace technical experts with competing, Google-powered flashmobs, each frantically emoting to get attention (one lot braying “open”, the other braying “freedom”) rather than using reason, then you’ve simply taken a short cut to an Idiocracy.

Was this one of the goals of the Net Neutrality campaign? Or is it just a by-product? Either way, they seem happy with it.

ISP CEO Brett Glass shared his experience of the Stanford Neutrality hearing last week, and what he describes is nothing if not an irrational mob:

“Most of the crowd that did attend was marshalled by a group called ‘Save the Internet’, which fed them talking points and much incorrect information. The crowd was uncivil and booed anyone who appeared not to favor an expansive and radical definition of Network Neutrality.”

The Neutrality “roadshow” is becoming a travelling circus. With its first stop at the techno-utopian think tank the Berkman Center, and last week at Lessig’s Google-sponsored law department on the West Coast. “Roll up and laugh at the freaks!” (Who think ISPs should be able to manage the networks…) “Throw things at them, too!”

(I experienced something similar at an event that the British Berkman-clone, the Oxford Internet Institute hosted last month at the LSE: it was remarkably boorish and one-sided, with a lynch mob jeering and interrupting speakers.)

I can see why neo-Luddites (like Lessig) have suddenly taken an interest in the issue. It’s good for Google, which loves Neutrality because it diverts the campaigners’ attention from the company’s dubious privacy practices, and its black box economics – both of which damage the internet far more than the PR blunders of clumsy cable companies.

But this cynical exercise in tin-rattling leaves us all a little more stupid.

And it’s no surprise at all to hear that a virtual Presidential candidate is throwing his electrons behind a virtual cause, to repeal a virtual law that never existed.

What else would a cypher do?

Asked whether he’d “re-instate Net Neutrality” as “the Law of the Land”, trailing Presidential Candidate Barack Obama told an audience in Cedar Rapids, Iowa pledged that yes, he would.

He also said he’d protect Ewok villages everywhere, and hoped that Tony Soprano had survived the non-existent bloodbath at the conclusion of The Sopranos.

(So we made the last two up – but they wouldn’t have been any more silly than what the Presidential Candidate really said.)

There are several problems with Obama’s pledge.

Firstly, the network of networks we call the internet has never been neutral in any technical sense – it wouldn’t work if it was. Network managers have always performed “shaping”.

Nor has this “neutrality” ever been “the Law of the Land”. Campaigners like to point to the ominous portents (http://www.multichannel.com/article/CA631098.html) of a Federal court decision known as Brand X, from 2005. But guess what? This turns out to be a fiction, too: the court simply maintained the status quo, upholding FCC cable regulations that permitted cable to share their pipes with ISPs. So no change there.

Campaigners say comments by AT&T boss Ed Whitacre indicated he wanted to charge different prices for different websites. This is something Obama picked up on.

“What you’ve been seeing is some lobbying that says that the servers and the various portals through which you’re getting information over the Internet should be able to be gatekeepers and to charge different rates to different Web sites, so you could get much better quality from the Fox News site and you’d be getting rotten service from the mom and pop sites,” he said.

But … well, you can guess, by now.

In the now famous interview, Whitacre never mentioned websites: he indicated that Google and Yahoo! for example, shouldn’t be allowed to launch TV services on his expensive new high speed IPTV network for free: a defensive, not an offensive remark.
Virtually yours

Obama’s finger-on-the-button pledge may have been a waste of virtual time, though – for “neutrality” has fallen off the agenda for a number of reasons – Despite the dogged efforts of Ars Technica’s Nate “Neut” Anderson to try and breath some life into it.

Perhaps the idea of one slow lane for everyone doesn’t really hold much appeal. Or perhaps the it’s because each new “scare” turns out to be hokum, and the public is growing tired of the Chicken Little scares.

For example, a fortnight ago Comcast put a cap on Bittorrent uploads, so Bittorrent downloads could continue. And that’s a clue to why “Neutralists” now meet with such indifference – perhaps there’s a realisation that in a shared resources network, rationing actually means there’s more to go round.

There’s one aspect to this virtual campaign that’s been overlooked however – the sheer improbability of the nightmare.

To believe the campaigners, you need to believe that a net with differential treatment (eg, “No YouTube for You”) is sellable at any price: in other words, you need to believe ordinary people are stupid.

Unfortunately, this comes naturally to the Neutralists, and their paranoid narratives .

They’re capable of imagining all kind of satanic machinations from up on high. But they’re incapable of believing that their fellow citizens are able to make the simplest and most rational decision, and just say No.

My presentation to the Westminster eForum on Net Neutrality. I’ll turn this into an embeddable slide show eventually, honest.

For now, see The Register for transcript and slides.