Net Neutrality

Craig Newmark of Craigslist and Mike McCurry of “Hands Off the Internet” debate “Should the Net Be Neutral?” at the Wall Street Journal. I’m struck by a number of things that Newmark says: Do you believe Yahoo should be allowed to outbid Google to slow down Google on people’s computers? That’s the kind of thing that the big guys are proposing.In fact, nobody has proposed slowing down anything–the consumer broadband telcos have proposed adding new, higher-bandwidth physical circuits (fiber to the home) which contain virtual circuits dedicated to content with requirements for higher bandwidth and low latency and jitter, for which the primary application they have in mind is IP television. And they want to charge content providers to use those virtual circuits. Now, one can argue that dedicating bandwidth to new applications that content providers have to pay for will have a future consequence that Internet bandwidth will be consumed and not upgraded, leading to degradation for best-effort Internet services, but that requires argument to support the likelihood of that outcome in the face of competition from cable companies and wireless providers. With all that empty fiber, bandwidth is not an issue. A bigger issue is that we’re running out of [Internet protocol] addresses. The new net protocols, IPv6, address that, but the big telecoms are already very late implementing that. (Hey, I’m an engineer, and their engineers talk to me.)Newmark is confusing Internet backbone bandwidth with last-mile consumer broadband bandwidth. I’ve addressed this confusion at length. BTW, IPv6 is rife with difficulties and not quite ready (or useful) for the average consumer, but my employer, Global Crossing, has been one of the first to make it widely available to its customers. (I run IPv6 on my home network via a tunnel to Global Crossing.) No one’s talking about “government lawyers and regulators engineer[ing] the future of the Internet,” except, well, you, Mike. We’re trying to prevent that, and trying to get Congress to maintain the level playing field we have right now, that the FCC just tried to ruin. We’re just asking everyone to play fair. … I’m being completely straight: no one’s interested in regulation in the sense you’re thinking, we just want the existing level playing field to continue… Beyond that, we’re not interested in mandating performance criteria, none of that stuff. … What we’re looking for is just fairness, a level playing field, no regulation or stuff like that. In America we believe that if you play fair and work hard, you get ahead. We don’t want the government to give special privileges to the big guys, particularly not at the expense of small business and consumers. We don’t want more regulation and we don’t need lawyers involved where the free market functions well. I guess we’re for capitalism. Here, Newmark is simply failing to recognize what’s in the actual network neutrality bills in Congress, which have unintended consequences about how networks are engineered, what can be in acceptable use policies, what kinds of contracts network providers are permitted to enter into with their customers, and how they can charge for access to different services–rules that to date have not existed for Internet services. Today, many Internet providers have acceptable use policies that prohibit spam, going beyond the requirements of the relatively weak federal CAN-SPAM law. Under all of the net neutrality bills I’ve seen, providers must permit customers to send or receive any “lawful content,” which forces them to reduce their AUPs to the lowest common denominator of whatever is prohibited by law in the jurisdictions where they provide service. These bills prohibit providers in the United States from setting the conditions of contract with their customers regarding activities they consider abusive which are not codified in law. The “pink contract” would thus become a government mandate. UPDATE: FCC Commissioner Michael Copps and U.S. Supreme Court Justice Clarence Thomas back up McCurry’s statement in this debate that the FCC already has authority under Title I to prevent anti-competitive discrimination without the need for new statutory powers from Congress. McCurry at the WSJ: And doesn’t the FCC have authority already (under Title I) to step in and act if necessary?Copps: The Federal Communications Commission has authority under current law to ensure that broadband-access providers – currently mainly cable and phone companies – do not discriminate against Web-based providers of content, search services and applications, FCC commissioner Michael Copps said Tuesday.Thomas: “The [FCC] remains free to impose special regulatory duties on facilities-based [Internet-service providers] under its Title I ancillary jurisdiction,” Justice Clarence Thomas wrote in National Cable & Telecommunications Association vs. Brand X Internet Services.This means net neutrality advocates who support the bills in Congress don’t think this is enough, and owe an explanation of specifically what powers they want to add to the FCC, what rules they want the FCC to make, and how those rules will be enforced.

Jim Durbin writes that he supports net neutrality because of fears about companies blocking access to certain websites at the enterprise. In his opinion, apparently, net neutrality not only means that ISPs can’t block access to lawful content, neither can employers. No net neutrality bills would take away the ability of enterprises to restrict corporate Internet access to business-related content and use products like web proxies, but it’s a symptom of the fuzziness of “net neutrality” that Mr. Durbin thinks this is a reason to advocate it. What’s next, a claim that the use of firewalls is contrary to net neutrality principles? Durbin approvingly links to an article by Glenn Harlan Reynolds about employees using pirate WiFi or resorting to bringing in personal equipment with EVDO cards in order to get their Internet or blogging fix at the workplace. Reynolds and Durbin both seem to think that companies should have no right–or at least no ability–to ban such things from the workplace unless they have “big trade-secret issues” or involve national security. Now, there’s a big distinction between pirate WiFi (connecting an unauthorized device to a company’s internal network, most likely exposing its internals to the outside world) and using your own equipment over a wireless connection to a provider that you pay for yourself. In the former case, it’s making unauthorized changes to the company’s own network and security mechanisms, while in the latter the issue is more an issue of whether you’re doing the job you’re being paid to do. But none of this should have anything to do with the “net neutrality” debate.

Larry Lessig has posted an interesting blog article comparing net neutrality to fair use, and asking whether there’s a problem in consistency on the part of those who favor one but not the other. As someone who more strongly supports laws recognizing fair use than regulated net neutrality, I agree with the reasons given by several of the posters (including Kevin Farnham, Jeremy, Cory Doctorow, three blind mice, and poptones). It seems that some of the better reasons to question creating a regulatory regime for net neutrality are present in these comments–I’m pleasantly surprised to see that the comments appear to be dominated by net neutrality skeptics. Some of the highlights: * Fair use is a limitation on rights pertaining to intellectual property, while net neutrality is a limitation on rights pertaining to physical property–Lessig’s own excellent book Free Culture points out that intellectual or creative property is different from physical property in significant ways. * The burden of proof on a fair use claim is on the person claiming fair use, not the copyright owner; in net neutrality the burden is on the property owner. * Fair use is really a limitation on a government regulation (copyright), while net neutrality is a regulation that’s a limit on business models, contracts, and technology. * Net neutrality advocates have not been clear about what they would require and prohibit, how violations will be detected/measured, and what the enforcement mechanisms will be. (I don’t trust Congress to tell network engineers how to do their jobs.)

Matthew Yglesias, covering for Joshua Micah Marshall at Talking Points Memo, writes of Mike McCurry’s battle with bloggers over net neutrality: People disagreed with McCurry about the net neutrality issue because people disagree about issues. People got so mad at him precisely because of this kind of patronizing attitude. He was peddling flimsy arguments as if it never occurred to him that the blogosphere is full of people who know a lot about the internet and could handle a grown-up argument (see a non-flimsy, though ultimately unpersuasive, anti-neutrality piece if you’re interested). ...

(I should preface this by saying that I am not a lawyer, only a relatively well-informed layman who has demonstrated the ability to win lawsuits against telemarketers without using an attorney.) Some network neutrality advocates are promoting James Sensenbrenner and John Conyers’ HR 5417 as a step in the right direction for putting network neutrality into law. But HR 5417 is a badly written bill with some serious negative implications. (There are a bunch of other network neutrality bills in the works, which I haven’t yet examined.) First, it turns all NSPs and ISPs into “broadband network providers” even if they don’t provide any residential consumer services. All that matters is whether you provide two-way Internet at speeds of 200 kbps or greater. Second, it prohibits preventing anyone from sending or receiving traffic that is legal. This means ISPs cannot have acceptable use policies against spammers that go beyond what is required by the federal CAN-SPAM law except in states which have stricter laws, and they have to sell service to known spammers who comply with CAN-SPAM, and you can’t kick adware companies off your network until and unless the specific abusive actions they are taking are made illegal. Third, it says that if you provide a custom service like IP Video or VOIP interconnection at a higher class of service, you must allow your customers to connect to that “type” of service to any other provider of IP Video or VOIP, regardless of location, whether those providers are customers of yours or not. But if you don’t provide those services over the Internet, who is supposed to bear the costs of interconnection to providers who aren’t customers? Fourth, it prohibits all restrictions on what devices users can connect to the network except on grounds of physical harm or degrading the service of others. But what if you offer a specialized service that only supports some vendors’ equipment, and has to have a particular configuration to function properly? This seems to say that you have to let customers configure unsupported or incorrectly configured equipment to the network. This bill is a nice example of bad unintended consequences. (Also see Richard Bennett’s Original Blog.) ...

The little cartoon movie from “Hands Off the Internet” (an organization funded by member organizations that include major telcos and equipment vendors) has led to a response from “Save the Internet” (advocates of net neutrality funded by MoveOn.org and others). “Save the Internet” claims that the cartoon is “a clever piece of industry propaganda that is riddled with half-truths and outright lies.” It then quotes a few passages from the cartoon and offers responses. Unfortunately, it is “Save the Internet”’s response that contains misinformation, and it fails to point out any alleged lies. In what follows, I’ll quote directly from the “Save the Internet” response (including the quotes from the “Hands Off” cartoon they are responding to) and then respond to each point. The big telecom companies say: “Is the Internet in Danger? Does the Internet need saving? It keeps getting faster. We keep getting more choices." The truth: Right now AT&T and others want to take away your choices and control what you can do and watch online. They’re on their best behavior while trying to convince Congress to hand over the Internet. But if their high-priced lobbyists get their way in Washington, the Internet as we know it will be gone. Network Neutrality has always curbed the control of the network owners, invited competition and encouraged innovators. It’s what made it possible for entrepreneurs and creative thinkers to prosper online. None of the big ideas that made the Internet the innovative engine it is today came from the cable or telephone companies. ...

Some advocates of net neutrality have advocated nationalization of “the Internet backbone” (see, for example, the comments of Paul and Frank at Richard Bennett’s Original Blog). The idea that there is such a thing as “the Internet backbone” is itself a confusion about what telcos contribute to the Internet, but what was the pace of innovation when telephony was a highly regulated government monopoly in the United States? Touch-Tone was developed in the late 1950’s. It was promoted at the Bell System Pavilion at the 1962 Seattle World’s Fair, as can be seen in this fascinating short film, “21st Century Calling” (a bonus feature on the DVD of the Mystery Science Theatre 3000 episode, “The Killer Shrews”). Other features promoted in the film include call forwarding and three-way calling. Bell Labs officially announced Touch-Tone as a feature (PDF) in 1964. Touch-Tone was rolled out to consumers in the 1980s as a feature which consumers had to pay extra for, even though it cost nothing more to provide. The SS7 electronic switching infrastructure costs were covered by consumer fees such as the monthly fee for Touch-Tone service, and then used to roll out new services to businesses, subsidized by consumers. Time from innovation to deployment: over two decades.

Suppose we live in a world with no private automobiles. There are still airports, bus stations, and sea ports, and these are places with diverse carriers and services, giving you many options for traveling long distances to other locations. But to get from your home to these travel hubs, your options are limited to between one and three cab companies; most people have access to two, RBOC Cab and Cable Cab. Both cab companies own all of their own cabs, but RBOC Cab has been legally required to allow independent operators to rent their cabs. Those independent operators have been permitted to repaint the cabs, furnish the interiors differently, and offer additional services to customers within the content of the cabs, but the cabs are owned by RBOC Cab and are of the same size, and the radios are standard equipment owned and maintained by RBOC Cab. Cable Cab, by contrast, has never been required to allow independent operators to use its cabs, and has never done so. (UPDATE 11 May 2006: This is because Cable Cab pays 5% of revenue to local governments as part of their franchise agreement, while RBOC Cab, by contrast, has had government monopoly protection until 1996, has free access to rights of way, and receives government funding via “universal service” fees in order to provide service to rural areas. While Cable Cab funded its own purchasing of cabs and infrastructure, RBOC Cab built its infrastructure without risk as a result of the government support.) They initially didn’t come with radios at all, but have recently furnished their cabs with radios. The rules have recently been changed so that RBOC Cab will no longer be required to allow independent operators to rent their cabs. They’ve stopped allowing new independent operators to rent cabs, or existing independent operators to take on new customers, and have announced that they will be ending all of the independent operator contracts. RBOC Cab has also announced that they intend to build larger cabs, in which some of the additional space will be used to provide new services, such as a fully stocked bar, refrigerator, and high-definition television. They will supply all of the contents of the bar and refrigerator, as well as what is shown on the TV, by entering into arrangements with suppliers, whom they intend to charge a fee for the privilege of using the facilities to reach their passengers. Passengers will not be permitted to use the refrigerators to store items that they’ve supplied, though they will still be allowed to bring along their own cooler, snacks, or video equipment, provided that it fits in the remaining space in the cab (which will be more space than in previous cabs). Both cab companies reserve the right to deny transportation for certain kinds of items that they consider harmful or dangerous, or which impact their ability to function–items that stink up the cab, that could catch fire or explode, etc. Cab Neutrality advocates argue that the Department of Transportation needs to create additional regulations which require the cab companies to allow passengers to carry whatever items they want, to use the radios to listen to whatever stations they want (whether the driver likes it or not), to put their own items in the refrigerator, and to allow all snack, beverage, and video providers to make use of the new equipment that RBOC Cabs plans to put into their cabs. They also want to require that the cab companies send cabs at the same speed to every travel hub, regardless of the hub’s size or amount of demand for its services (or what the passengers want), and that all costs should be borne by the cab company, not the hub. RBOC Cabs responds by saying that in order to fund the building of the new cabs, they need to be able to charge the snack, beverage, and video providers to use the new equipment (in addition to the fee charged to the passengers, which is not enough to cover the actual cost), but that passengers are still free to bring their own snacks. Cab Neutrality advocates worry that unless they are allowed to bring whatever items they want, they might be prohibited from bringing their own snacks, beverages, and videos. RBOC Cabs have also claimed that they need to be able to build these larger cabs in order to travel longer distances, and suggested that their ability to carry snacks, beverages, and videos over long distances is part of the costs they need to recoup (when, in fact, the long distance transportation of even their snacks, beverages, and videos is provided in the highly competitive environment of the multiple transportation hubs, where there are no issues of capacity and costs per mile are significantly lower). This is not a precise analogy, but I think it captures the highlights. To make it more precise, I’d need to actually talk about the roads, perhaps making the last mile owned by HOAs that are analogous to RBOCs and cable companies, with the HOAs placing restrictions on the size and type of vehicles that can move on those roads and creating new lanes for their own vehicles, which they want to rent out to third parties or make available for higher priority services that might need them for emergencies. What’s right about “Cab Neutrality” is that passengers want to be able to get to every travel hub and they want to be able to choose what food, beverages, and entertainment they get on the way. But the specific proposals they make are too specific, go beyond these basics, and create limitations in what new services and business arrangements can be developed. As I see it, the biggest problem here is limited competition among cab companies–a situation which was alleviated to a large extent by the requirement that RBOC Cab lease out cabs to independent operators–a requirement that should have applied to Cable Cab as well. (If we had a way to purchase or rent our own vehicles from competitive sources, all of the worries about what the cab companies might do would be eliminated.) A requirement on the cab companies that requires passengers to be able to carry whatever they want would have the unintended consequence that some malicious or unthinking passengers would carry items that the cab companies want to prohibit for good reason–harmful and dangerous materials, materials which disrupt service for other passengers. (E.g., spam, malware, denial of service attacks.) A requirement that all cabs must travel at the same speed means that if I have an emergency where I want to be able to pay more to get to my travel hub faster, I can’t do it. Passengers carrying organs for transplant surgery don’t get to travel any faster than passengers going on vacation. A requirement that all costs must be borne by the cab companies (both for transportation to the hubs and for the new cabs and equipment within them) limits the possibilities of new business arrangements between third parties and the cab companies. There might be a possible business model where a travel hub pays a fee to get more frequent cab services, with a lower cost to the cab passengers, subsidized by the long-haul transportation services. Or where video providers can supply services at different costs, with lower-cost services subsidized by advertising revenue.

Adam Green, responding to Mike McCurry, writes (following Matt Stoller at MyDD) that: Lie #1: McCurry knows the Internet is not “absent regulation” yet he’s willing to deceive the public if it helps his clients. As Matt Stoller points out on MyDD: What McCurry did not tell the public was that during the Clinton years, the FCC actively enforced net neutrality – the Internet’s First Amendment – against his telecom clients. Common carrier statutes have in fact been a bedrock principle of telecommunications law since 1934, and in 1996 Congress ratified that with a commitment to network neutrality. ...

Josh Marshall writes: The grand ole daddy of special interest giveaways – Congress to give away the Internet. This is serious. Find out more here.Sounds like he’s saying that Congress is transferring the authority the Department of Commerce currently has over ICANN somewhere, doesn’t it? But he links to Art Brodsky on TPM’s “Special Guests Blog,” who writes: Congress is going to hand the operation of the Internet over to AT&T, Verizon and Comcast. Democrats are helping. It’s a shame. ...