Thursday, April 8, 2010

The Open Internet In Limbo: An Update On My Goings-On Cleverly Disguised As A News Post About Network Neutrality

I'll start this post as I start a lot of posts about internet regulation and structure: with an illustration. Imagine you're a BigNet internet service subscriber. You pay a monthly service to connect to the internet through their pipes. You also really love the show "Small Wonder" So, you watch this show on a popular video streaming site pretty regularly.

But today, it turns out, BigNet has decided to start selling a video subscription service, one that will bring "Small Wonder" via cable to your television on demand. Now, you have no need for this service, because you can get all of the "Small Wonder" you need from the free video streaming site.

Now imagine that BigNet caught on to your free "Small Wonder" watching and decided to make their service more appealing by blocking or slowing down your access to the free video streaming site. Then, deprived of your full-quality streaming "Small Wonder" episodes, you'd be forced to buy into BigNet's new on-demand streaming service.

Or how about this: you've come up with a revolutionary new technology called TalkBingo that could change the way people have face-to-face conversation on the internet. This technology, though, uses a lot of bandwidth, so BigNet decides you should have to pay them a premium to make this sleek, awesome technology available to people. You can't afford that; you're just a programmer in a garage. So, TalkBingo never sees the light of day, and the conversation revolution doesn't get the kick-start it needs.

The possible examples go on and on: blocking access to politically objectionable content, slowing voice-over-internet services to favor phone plans, etc. But. Examples of what? It's clear something similar is happening in all of these cases, which might be described as internet service providers (ISPs, like Comcast, AT&T, or BigNet) discriminating against different kinds of traffic as it goes out to end users, either charging more for that content to be transmitted or slowing down or stopping certain kinds of traffic. And this kind of discrimination feels wrong, doesn't it? Like it doesn't fit with our vision of an open internet?

Well, the FCC agrees. And so does Lawrence Lessig and President Obama and Google and Microsoft. All of these people and companies agree that ISPs should treat all lawful internet traffic equally. They all believe, in short, in network neutrality.

Net neutrality is the principle that the providers of the internet and of connection to the internet should not be allowed to meddle with the traffic that flows to users, with the way the internet looks to someone who connects to it. This is hopefully accomplished by banning all ISPs from discriminating between different kinds of traffic.

But that puts us in a weird position. Because since the beginning of the internet, discrimination has been a pretty important part of keeping the whole mess working. When there is a surge in traffic that an ISP can't handle, the ISP is forced to block that traffic to protect its network. Or if someone is illegally sharing files or trading in child pornography or hacking the network itself, ISPs should reserve the right to stop these kinds of illegal and harmful activities.

That's where "reasonable network management" comes in. Most versions of rules about net neutrality include an exception for reasonable network management, in the interest of complying with the law or maintaining quality of service / preventing congestion on the internet. The exceptions take various forms, and I'm writing a very sizable paper about one such version of these exceptions, which I'll get to later.

The important next question is, who gets to decide what net neutrality regulation will look like? The answer has traditionally been the Federal Communications Commission, who started regulating the internet back in the mid-00s. The FCC classed broadband internet as an information service in 2005, thus entitling them to regulate it differently than telephone services and the like. From that point forward, the FCC experimented with internet regulation, culminating in a ruling against Comcast on a set of policy statements and some proposed rules codifying those policy statements into law.

It sounds complex, it's true. But the gist is that the FCC first unofficially made it clear that they would not tolerate discriminatory handling of internet traffic, then ruled against Comcast for violating these unofficial rules, and finally tried to make the unofficial rules official. It sounds shakier than it is, and the big problem isn't the unofficialness of the rules; it's the FCC's jurisdiction to make them that's really problematic.

The DC Circuit Court recently heard both sides of the Comcast / FCC battle on appeal and officially decided that the FCC didn't have the explicit authority from congress that they needed to make rules about net neutrality. That means that the FCC can't actually make their unofficial rules official unless they either win a further appeal or lobby congress for the authority they need. As of now, that puts the proposed official rules in a strange limbo, both very near being officially codified and very far from it.

It also puts my paper in an interesting position. As I mentioned, I'm writing about how the "reasonable network management" exception is likely to be enforced and interpreted, specifically in the context of these proposed rules. The rules are stuck in this weird place, but decisions still have to be made about how best to protect reasonable internet practices while preserving the best, most fair experience for end users. So I'm hoping that my paper still has some interesting stuff to say about that balance.

And that's also why I'm not writing as much here these days. I'm mostly absorbed with carefully poring over hundreds of comments on the proposed rules and trying to get a handle on what the exceptions might look like when the dust finally settles. It's clear that the dust has to settle eventually, and when it does, I'll be here to help navigate the messed-up terrain the fracas leaves behind. See you then!

(Image: WWIII Propaganda: Support Net Neutrality, a Creative Commons Attribution Non-Commercial Share-Alike (2.0) image from doctabu's photostream)