|
DISCRIMINATION /
PRIORITIZATION / NETWORK MANAGEMENT :
Discussion: The FCC has articulated four broadband principals. A footnote to those principals states "The principles we adopt are subject to reasonable network management." What is reasonable network management has become a source of significant debate. See Comcast / BitTorrent petition.
Opponents of NN argue that NN
restrictions would prevent network services from engaging in network management and
give control of the network to application and content providers. [FTC Staff Report 2007 p 60]
FTC Staff Report 2007 p 61: Net neutrality opponents point out that all network routers must make decisions
about transmitting data and argue that such decisions invariably have implications that
may not be strictly uniform or neutral. In particular, they note that networks have long
employed "hot potato" routing policies that hand off to other networks at the earliest
possible point data that is not destined for termination on their own networks. A
principal goal of hot potato routing is to reduce the usage of network resources.
Opponents note that, during periods of congestion, data packets may be rerouted along
another path or dropped altogether and that packets may need to be re-sent when
transmission errors occur.
FTC Staff Report 2007 p 62: Network neutrality opponents frequently argue that operators should be allowed
actively to restrict or block data that they believe may be harmful to the performance of their networks, citing reports that a relatively small number of users can potentially
overwhelm network resources through the use of bandwidth-intensive applications, such
as peer-to-peer file-sharing and streaming video. They warn that active network
management, prioritization, and other types of quality-of-service assurances are needed to
prevent the Internet, or its individual parts, from slowing down or crashing altogether in a
high-tech "tragedy of the commons." In their view, merely expanding network
capacity is expensive and may not be the most cost-effective method of network
management, and future content and applications may be even more resource-intensive
than applications like BitTorrent are today.
Compare: Electronic Communications Privacy Act (ECPA) which prohibits interception and use of transmissions over networks except where such interception "is a necessary incident to the rendition of his service." Some have argued that deep packet inspection potentially violates ECPA. |
There many ways that networks engage in "reasonable network management":
Proponents
of NN argue that this is not about whether to engage in network
management; this is about reasonable versus unreasonable network management practices. This is about whether networks may engage in unreasonable network management such as discriminatory
practices with regards to access to online resources, websites, services, and applications, providing preferential service to affiliated services over non affiliated service. [FTC Report 2007 p 52] [Sidak p 5] [Queens]
Proponents also note that positive rationales of network management have been applied inconsistently. Networks object to malware in P2P traffic and therefore block P2P traffic for the benefit of the subscriber; yet email likewise has malware but is not blocked. [Marsden Sec. 1.2.2]
Negative Discrimination: Networks
have discriminated against what equipment can be attached to networks,
what applications can be used over a network, whether calls go to one
competitor or to another, and even whether subscribers can criticize
the network service provider. A collection of examples of
discrimination can be found on the Discrimination
page. Examples of discrimination could include:
[FTC Report 2007 p 52-53] Examples of discriminatory behavior exists throughout telecommunications history. AT&T
did its best to prohibit attaching such things like modems and fax
machines (CPE) to its network, or to let computer
services use its network to build computer networks
(it was even prohibited at one point to place a cover over a telephone
directory [Alven]);
it took rulings of
the FCC and litigation to pry open the AT&T network (there is a proceeding before the FCC that addresses whether consumers can attach the applications of their choice to mobile telephone services - arguing in part that mobile phone service providers are attempting to block consumers from using VoIP on their handsets [FTC Report 2007 p 53]).
Distinguishing Reasonable Network Management: There is a distinction between "reasonable network management" and "unreasonable network management" practices. [Berners-Lee] This distinction has been sucessfully been maintained in another body of law, wiretap law and ECPA, which prohibits the interception of transmissions except for instances where interception is necessary for the rendition of service.
Illegal Content :: Copyright and Offensive Content
Opponents: The Songwriters Guild of America argues that Network Neutrality regulation would prohibit ISPs from acting against illegally pirated music. [FCC Stanford] The Guild argues that discrimination must be permitted in order to protect intellectual property. Rick Carnes cited statistics (although he could not indicate when those statistics were from) purporting that the majority of traffic on Internet backbones is from a few individuals using P2P, and that the vast majority of that traffic is pirated.
Every day it facilitates the most massive intellectual property theft in all of history. As currently configured, the Internet is anti-copyright and anti-creator, and the system needs to be fixed, not enshrined in Net Neutrality legislation or regulation. [Guild DeMyth NN]
AT&T and NBC have indicated that filtering the network to attack pirated content is appropriate. [Judiciary March 2008] [Wu Has AT&T Lost Its Mind] [Guild DeMyth NN]
Other Members of Congress have argued that discrimination must be permitted in order to attack Child Pornography. [Judiciary March 2008]
Proponents: Susan Crawford during a Judiciary Hearing noted that copyrighted material is already protected by the DMCA and child pornography is already illegal under title 18 of the criminal statutes. She noted that ISPs are cooperating with police authorities in order to solve these problems. [Judiciary March 2008]
Michele Combs of the Christian Coalition of America points out that the pornography industry has not come out in support of network neutrality. [FCC Stanford] She argued that the reason this is true is that the pornography industry knows that it can pay a premium to get its content delivered (the pornography industry is a high profit industry)*. Who will not be able to pay that premium is the small voices. She noted that the content that was blocked, which brought about the Network Management Petitions, was the King James Bible. She also noted that the same techniques that are used by networks to block the King James Bible are the techniques used by the Chinese government to block the Christian Coalition content from entering China.
*This was also true of the Communications Decency Act. The CDA made obscenity and indecency illegal, but it also set forth safe harbors that, if complied with, gave a defense to the content provider. Therefore the pornography industry did not object to the CDA - it was the voices in the middle like Planned Parenthood and Breast Cancer information that objected.
Wu argues that AT&T risks losing immunity under the DMCA if it filters for pirated content.
To maintain that immunity, AT&T must transmit data "without selection of the material by the service provider" and "without modification of its content." Once AT&T gets in the business of picking and choosing what content travels over its network, while the law is not entirely clear, it runs a serious risk of losing its all-important immunity.
[Wu Has AT&T Lost its Mind]
The proposition that a carrier act against illegal activity, and should cooperate with police authorities, is not antithetical to network neutrality. Common carriers traditionally have acted against illegal activity. They have blocked telephone numbers that have been identified with illegal gambling. They have also cooperated with police wiretaps. Other carriers such as trains permit police on board to conduct searches for transportation of illegal drugs. The distinction is that in these examples, carriers are following legal authority which directs them to the object to be blocked or filtered, with no subjective judgement on their part. AT&T acting without such authority would likely have to make subjective decisions about what is and is not infringing content.
Network Monitoring For Purposes of Serving Advertising
In May 2008, Charter Communications announced that it would monitor the internet traffic of its subscribers for the purpose of serving relevant advertising to those customers, increasing revenue to Charter, and bringing down prices to the customer. [See Charter Communications, Enhanced Online Experience: Frequently Asked Questions]
TIERING / BANDWIDTH CAPS / HOGS
Opponents of network neutrality point to service
level issues and make "tragedy of
the commons" type arguments. They suggest that Network
Neutrality restrictions would mandate that carriers would be obligated
to charge the same amount for all individuals: lite users as well as
bandwidth hogs. The carriers argue that a small number of users, specifically P2P users, are responsible for 90%~ of their bandwidth usage. Differentiating bandwidth caps for different users, they argue, means that they could distinguish between the bandwidth hogs consumer the majority of resources, from the average user consumering a minority of resources. [Farber] [Pepper]
Proponents note that the offering of different levels of service
does not violate traditional common carriage jurisprudence. The classic
case in this area involves a telegram that was transmitted with a
typographical error that resulted in harm to the customer's business.
The customer sued. Western Union in its defense noted that it offered
different levels of service and insurance. In order to ensure against
error, for an additional fee the message could be repeated one time or
even two times, with corresponding levels of insurance for each level.
But Western Union disavowed liability when no error correcting service
level was purchased. The customer complained that this violated common carriage principles. The court held that as long as Western Union offered a service level where it was responsible for the proper
delivery of the message, it was free to offer a discounted service
level where the message was not guaranteed to be error free. [See Liability;
Union
Pacific v. Burke] In sum, the precedent is that as long as
there is a service that comports with the principals of common carriage, variations of that service offering with financial benefit
are permissible. (See also different levels of service offered by
the common carriers the US Post Office and Airlines).
It is also noteworthy that access service has always been tiered, where the tiering was tied to the physical transport medium.
- Dial-up service restricted to a maximum of 56 kbps was sold at one rate;
- DSL service at different maximum bandwidths are sold at different rates;
- cable service are sold at different rates; and
- Higher bandwidth T1 or fiber services are sold at a different rate.
No one has suggested that DSL service must be sold for the same price as DSL service, even where the same copper wire might be used. They key, however, is that the upper limits of all of these services had been limited by the nature of the physical medium; you can only get so much bandwidth out of a dial-up line.
A new problem arises with pipes where the physical transport medium limits are high. Should the service provider be able to provide lower bandwidth for one price and higher bandwidth for another. What about high bandwidth, high consumption (bandwidth hogs?). It is said that some proponents object to this type of tiering. [Weiser ALR 08 p 4] Apparently Senator Wyden introduced a legislative proposal that would have banned tiering of this type. There is little, however, in the history of common carrier or of Internet access that would support this objection.
Opponents of network neutrality argue that if networks cannot discriminate, bandwidth hogs will use up all
available bandwidth, cause a burdensome cost on the network service provider,
and thereby eliminate the incentive of the networks to build. [Sidak p 5] They
point to YouTube and Peer-to-Peer users as causing network
congestion. [FTC Staff Report 2007 p 62]
Previously, some cable networks terminated custiomers who exceeded bandwidth limits, without reported informing customers what those limits were. Recently, some carriers have begun to impose bandwidth caps on users - individuals who exceed the bandwidth cap will be forced to pay additional fees. [Bangeman 091707 (stating that Comcast is seeking to move heavy bandwidth users to 'commercial grade' services)] [Borland 092203 (Comcast sent letters to heavy users stating that they were using too much bandwidth, without providing notice of what "too much bandwidth" means, and stating that the users might have their service cut off)] [Bangeman 011808 (reporting that TWC would be initiating "Consumption Based Billing," and noting that Comcast had cut service off to subscribers that had reached bandwidth limits, but that Comcast did not provide notice of what that limit was)] [Enoch ("The company has a bandwidth limitation that, if broken, can result in a 12-month suspension of service. The problem, according to customer complaints, is that the telecom giant refuses to reveal how much downloading is too much.")
Proponents of network neutrality argue that this is a false scare tactic. As noted above, different service level agreements is the norm. If bandwidth hogs require more bandwidth, charging more for the service is not a problem. Traditionally, different levels of bandwidth have been offered at different rates. Internet access at dial up speed was sold at one rate; DSL speed was sold at another rate; and a T1 Internet connection was sold at another rate. Proponents argue that this is not an argument that everyone should pay the same rate; this is an argument that there should be some basic neutral Internet connectivity over which individuals can interact with other servers, utilize any application, or interact with any content - more than that, service providers can offer specialized offerings. [Annenberg #3]
A reaction by networks to bandwidth hogs has been to attempt to block something associated with the hogs. As noted above, P2P networks have been identified as part of the bandwidth hog problem, and some networks have blocked P2P software. Proponents note that blocking P2P is a blunt tool; it blocks legitimate traffic along with the complained of traffic.
Proponents argue that the issue is how to do this in a fair way that promotes innovation and encourages, not discourages, broadband usage. Greater bandwidth will lead to greater innovations including the potential of new video opportunities. Inappropriate caps and discriminatory pricing will discourage bandwidth consumption in a way that could inhibit the next generation of applications.
Peak / Non- Peak Usage Noah Pepper makes the argument that bandwidth caps are too clumsy to be approprate. He argues
Excessive bandwidth usage is only a problem when it degrades the quality of service for other users of the network. Service is only likely to be degraded for other users during peak usage hours because that is when the most people are on the network . . .
Targeting these alleged bandwidth hogs for having large total usage by restricting network access or raising rates doesn't get at the real problem, which is congestion during times of heavy usage. These penalties are essentially punishing consumers for gaining extra utility from the service, particularly at non-peak usage hours, at no harm to the ISP or other users . . .
Throttling everyone during peak usage is the only sensible solution to this problem (besides upgrading the network).
[Noah Pepper] In other words - identify the problem - the problem is congestion on the network during peak hours with perhaps a few users place unproportional demand on the network - the problem is not usage of the network during not peak hours when the network is not congested. The solution to the problem - just like the mobile phone service providers - is to provide a scheme that charges for peak usage and creates an incentive to migrate traffic to non peak hours.
Quality of Service / Prioritization
Discussion: Quality of Service issues effect different applications differently. Most Internet applications are tolerant of latency, delay and jitter. Real time applications such as VoIP, gaming, and live video, however, degrade or may be blocked where QoS is decreased. [Felten Sec. 3]
Opponents argue that NN proposals would prohibit different QoS
guarantees. Sidak states "Network neutrality regulation would prevent an access provider from charging higher prices to suppliers of content and applications that require priority delivery." [Sidak p 4] [Atkinson p 2 (noting Markey Bill HR 5273 would limit the ability of service providers from providing and charging for high QoS)] [Jamison p 1 (describing premium delivery as "the net neutrality issue" and arguing that premium offerings would create an incentive for networks to invest).
Opponents argue "the notion that we currently have a
'neutral' Internet is simply false." [Ganley at 1]
FTC Report 2007 p 63: Network neutrality opponents argue that market transactions for prioritization and other forms of quality of service can, in many cases, allocate scarce network resources in a manner more consistent with the actual priorities of end users.284 Opponents further suggest that prioritizing streaming telemedicine video, for example, ahead of e-mail or network gaming transmissions to reduce latency and jitter would be socially beneficial.285
[Internet2 has consistently argued that the solution is not prioritization and discrimination, but to get rid of the scarcity by increasing the supply of bandwidth. With sufficient bandwidth, prioritization of any service, including telemedicine, is irrelevant, as it all gets through]
Net neutrality opponents thus argue that network operators should be allowed to prioritize the transmission of certain data or provide quality-of-service assurances for a fee in the same way that consumers pay for priority mail service. Some observers note that many other types of paid prioritization arrangements such as first-class airline seating, congestion pricing for automobile traffic and public transportation, and premium advertisement placements are commonplace and generally considered to be socially beneficial.286 In addition, they dispute the notion that non-prioritized data will be relegated to an unacceptable, antiquated slow lane. Rather, they argue that nonprioritized data traffic will continue to receive an acceptable level of basic service that will continue to improve over time along with more general advances in data transmission methods.287
As noted, proponents do not object to differentiated service offerings - as long as those offerings are equally available to all without discrimination.
This does highlight the semantic
difficulties of inventing new terms. Advocates have taken the new term "network neutrality," defined it at will, and then made arguments about
how their straw man definition stands or falls. In this case Ganley has
defined "neutrality" to mean "different service levels are
impermissible" and then knocked down his strawman when he found
different service level agreements. See [Jamison p 2 (characterizing Wu and Yoo as arguing against differentiated service, and then arguing that Wu and Yoo are wrong)]
However, when placed in the
historical context of common carriage jurisprudence, where different quality of service offerings were permissible, differentiated QoS does not cause consternation.
Timothy Wu responds specifically to the argument that NN would impede work on QoS; noting that QoS is an issue for small or private networks, but it is not a justification on the commodity Internet. [Wu FAQ] Over the commodity Internet, the QoS is best effort; there can be no differentiation of higher QoS or lower QoS over the commodity Internet because, when different Internet networks interconnect and exchange traffic, that traffic is exchanged on a "best effort level" and any QoS labels are ignored.
Ed Felten notes that if an application requires a higher speed then the commodity Internet can provide, assigning QoS priorities wont help; QoS might make the net steadier, but not faster. General Internet applications such as browsers and downloaded video are QoS tolerate. Video buffers the stream in order to compensate for jitter. Web pages may take a moment longer to load, but they will load. Felten also states that "if an app
needs much less average speed than the Net can provide, then QoS might also be
unnecessary." For these reasons he concludes, "I am not convinced - though I could be with more evidence - that QoS is a strong argument against net neutrality rules." [Felten Sec. 7]
FTC Report 2007 p 54 Net neutrality advocates also express concern that, short of outright blockage or
active degradation, network operators will present certain content and applications to
users in a preferential manner in exchange for payment. They express concern that
network operators may, for example, use packet-inspection technology to provide quicker
load times for certain providers' Web pages or faster and more consistent connections for
favored VoIP or streaming video providers. Some network operators have, in fact,
indicated that they would like to offer certain prioritized services or other kinds of
quality-of-service guarantees in exchange for a premium fee.
Some neutrality advocates object to the idea of a network offering prioritized data
transmission or quality-of-service guarantees in exchange for payment. That is, they
object to a deviation from the long-standing first-in-first-out and best-efforts transmission
characteristics of the Internet. They are concerned about the potential for prioritization to
result in blocking or degradation of non-favored content and applications. These
advocates are concerned that content and applications from providers affiliated with the
network operator or having a greater ability to pay will be available in a "fast lane," while
others will be relegated to a "slow lane," discriminated against, or excluded altogether.
Further, creating priority fast lanes, according to some advocates, necessarily would result in (intentionally or effectively) degraded service in the remainder of the network.
Likewise, some advocates object to the creation of private networks that might provide
prioritized data transmission or other forms of quality of service to only a limited number
of customers, arguing that this will represent the "end" of the Internet as we know it.
Some advocates, therefore, argue that content and applications providers should
not be allowed to pay a premium fee for prioritized data transmission, even if they want
to do so. They object, for example, to a possible two-sided market model where content
and applications providers pay networks for prioritization in the same way that merchants
subsidize the purchase price of a newspaper by paying for the placement of
advertisements in return for greater consumer exposure to their advertisements.
Instead, in this view, networks should be required to derive revenues principally from
providing Internet access to residential and business customers. Some advocates who
object to prioritized data transmission would, however, allow network operators to charge
end users more for the consumption of larger amounts of bandwidth.
Other advocates do not strictly object to prioritization or quality of service for a
fee. They argue, however, that different levels of prioritization should be offered on
uniform terms to all "similar" content and applications providers and that all end users be guaranteed a minimum level of access to the entire universe of Internet content.
Another advocate suggests that network operators should be free to create specialized
service parameters and to provide prioritized data transmission, but with a requirement
that networks also maintain a basic level of best-efforts Internet service.
Some network neutrality proponents further suggest that, as the speed of the
Internet continues to increase with the deployment of faster technologies like fiber-optic
wirelines and improved wireless transmissions, the issue of prioritization may become
irrelevant. They suggest that when Internet speeds of upwards of 100 megabits per
second ("Mbps") are widely available, first-in-first-out and best-efforts delivery at these
rates should be sufficient to transmit all Internet traffic without any problems, even for
advanced and time-sensitive applications. These proponents suggest that all congestion
and bandwidth scarcity issues will effectively disappear at these speeds and the issue of
prioritization will eventually be moot. A neutrality regime, therefore, can be seen as a
temporary remedy for a problem that ultimately will be outgrown and an important
measure that will prevent network operators from creating artificial scarcity in their
networks in the meantime to derive additional revenues by charging content and
applications providers for new types of data transmission. Thus, some of these proponents believe that, instead of allowing network operators to engage in prioritization,
policy makers should focus on creating incentives for the deployment of next-generation,
high-speed networks.
Content and Applications / Traffic Shaping
FTC Staff Report 2007 p 64: "Network neutrality opponents argue that new types of specialized services and
premium content require sophisticated, "intelligent" data-traffic management at both the
core and edges of the Internet. Principal examples include VoIP, streaming video for
movies and telemedicine, large video download files, interactive network video games,
and customized business applications. In their view, "dumb" networks based on the
original TCP/IP protocol's first-in-first-out and best-efforts standards are becoming increasingly outdated for certain content and applications. Opponents argue that many
of these newer applications are sensitive to different levels of speed, latency, jitter,
symmetry, bursting, and capacity. For example, virtual teleconferencing generally
requires high speed, low latency, and symmetry, while some one-time video downloads
might require only high speed. By contrast, VoIP does not require significant bandwidth,
but is sensitive to latency and jitter. Neutrality critics argue, therefore, that network
intelligence will be increasingly necessary to provide the optimal transmission climate for
each of these new types of content and applications and that both content and applications
providers and other end users should be allowed to purchase services appropriate to their
particular needs."
In 2007, reports surfaced that Comcast was engaged in traffic shaping, and was degrading P2P traffic, specifically BitTorrent traffic.
FTC Staff Report 2007 p : "Net neutrality proponents also express concern about the prospect of network
operators integrating vertically into the provision of content and applications. Proponents
argue that network operators now have the legal and technological ability to control both
their own physical networks and the ability of content and applications providers to reach
end users. Proponents further suggest that vertically integrated network operators will
favor their own content and applications, or those of their affiliates, over others. Some
of these proponents, therefore, argue that network operators' ability to vertically integrate
should be legally restricted or forbidden altogether."
Opponents argue that
"Free speech is best protected through an unregulated Internet." [INEWS 031208 (quoting Hands Off the Internet)]
Proponents note the irony of arguing for "free speech" in order to justify discriminating against speech. Historically, common carriage jurisprudence has recognized that Free Speech is facilitated by ensuring that the medium of free speech is nondiscriminatory. This was recognized originally when politicians and businessmen realized how powerful information flow over telegraph was. This was extended to telephony. The same principle applies to the Internet. For speech to be free, the infrastructure that carriers the speech cannot discriminate.
|
