Regulators and network operators across the world will be watching events unfold in Washington DC with some astonishment today, as the US telecoms industry becomes embroiled in a bureaucratic farce.
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.