Specifics Needed on Network Neutrality

by on March 1, 2008 · 10 comments

So I’ve finished reading the Frischmann paper. I think it makes some interesting theoretical observations about the importance of open access to certain infrastructure resources. But I think the network neutrality section of the paper is weakened by a lack of specificity about what’s at stake in the network neutrality debate. He appears to take for granted that the major ISPs are able and likely to transform the Internet into a proprietary network in the not-too-distant future. Indeed, he seems to regard this point as so self-evident that he frames it as a simple political choice between open and closed networks.

But I think it’s far from obvious that anyone has the power to transform the Internet into a closed network. I can count the number of serious reports of network neutrality violations on my fingers, and no ISP has even come within the ballpark of transforming its network into a proprietary network like AOL circa 1994. Larry Lessig raised the alarm about that threat a decade ago, yet if anything, things have gotten more, not less, open in the last decade. We have seen an explosion of mostly non-commercial, participatory Internet technologies like Wikipedia, Flickr, blogs, YouTube, RSS, XMPP, and so forth. We have seen major technology companies, especially Google, throw their weight behind the Intenet’s open architecture. I’m as happy as the next geek to criticize Comcast’s interference with BitTorrent, but that policy has neither been particularly successful in preventing BitTorrent use, nor emulated by other ISPs, nor a harbinger of the imminent AOL-ization of Comcast’s network.

Before we can talk about whether a proprietary Interent is desirable (personally, I think it isn’t), I think we have to first figure out what kind of changes are plausible. I have yet to see anyone tell a coherent, detailed story about what AT&T or Verizon could do to achieve the results that Lessig, Benkler, Wu, and Frischmann are so worried about. Frischmann, like most advocates of network neutrality regulation, seem to simply assume that ISPs have this power and move on to the question of whether it’s desirable. But in doing so, they’re likely to produce regulation that’s not only unnecessary, but quite possibly incoherent. If you don’t quite know what you’re trying to prevent, it’s awfully hard to know which regulations are necessary to prevent it.

  • http://www.ikeelliott.typepad.com Ike Elliott

    Well put, Tim. The only one of the four freedoms of ‘Net Neutrality that seems worthy of enforcing is the requirement to disclose your network management (traffic shaping/blocking) policies. Existing truth-in-advertising laws may already require this, under a broad interpretation, and it is the FTC’s job to enforce (rather than the FCC’s job as considered in the proposed Markey legislation). The Markey law is ill-considered. Thankfully, I don’t think it has good prospects to pass in an election year. More at http://ikeelliott.typepad.com/telecosm/2008/02/

  • http://www.ikeelliott.typepad.com Ike Elliott

    Well put, Tim. The only one of the four freedoms of ‘Net Neutrality that seems worthy of enforcing is the requirement to disclose your network management (traffic shaping/blocking) policies. Existing truth-in-advertising laws may already require this, under a broad interpretation, and it is the FTC’s job to enforce (rather than the FCC’s job as considered in the proposed Markey legislation). The Markey law is ill-considered. Thankfully, I don’t think it has good prospects to pass in an election year. More at http://ikeelliott.typepad.com/telecosm/2008/02/fcc-rattles-net.html

  • http://www.luc.edu/law/faculty/frischmann.html Brett

    Tim,

    I appreciate your comments and critique. A few quick reactions. First, the article you focused on is really aimed at developing a better understanding of the benefits of nondiscriminatory public access to “infrastructure” generally. The article was not motivated by or focused especially on the network neutrality debate, and the points made in Part IV are aimed at better articulating the benefits on nondiscrimination in the Internet context; some of the basic points that I hoped to add to the debate were that the social benefits from nondiscriminatory access to and use of the Internet go much further than supporting the emergence of new applications and content (though such benefits are important) and that competition theory alone doesn’t capture the full range of economic (much less social) issues–that is, there are market failures associated with infrastructure-dependent public and nonmarket goods that even competition doesn’t solve, and a lack of competition may worsen. I have since written another paper with Barbara van Schewick that aims more directly at network neutrality (and Chris Yoo’s work in particular) — http://papers.ssrn.com/sol3/papers.cfm?abstract…. Which brings me to the next point I should make. I do not claim to have fully articulated the path toward a fully prioritized Net, and I hope you are right that networks lack the power to prioritize packet delivery according to user/use. As Barbara and I discuss, the technology exists and the incentives to prioritize (discriminate) exist, and so I am not quite sure what (other than the potential threat of regulation) you think is keeping or will keep networks in check. Competition? I should also note that my concern is not that the Internet will become proprietary; it already is for the most part. My concern is with discrimination among packets on the basis of user or use. Though that is my concern, I explicitly acknowledge that there are tradeoffs involved and that such discrimination is rational from the perspective of network owners. Generally speaking, I think most of the problems network owners claim discrimination would solve can be solved via nondiscriminatory means (e.g., congestion pricing can be implemented in a manner that does not set prices or otherwise prioritize delivery based on the user or use). Of course, there are limits and thus tradeoffs. I hope my work is sufficiently candid about these issues.

    You suggest that I support regulation that would be incoherent. If I were to champion a rule, I suppose I would propose a pretty simple rule: no discrimination on the basis of user or use. This is obviously a very strong rule, probably much stronger than most NN advocates would support. It doesn’t distinguish between reasonable and unreasonable discrimination. Anyway, I haven’t spent a considerable amount of time crafting rules and trying to generate regulation.

    It is interesting that both you and Lessig (in his Reply to my paper that was also published in the Minn. Law Review) call for more specificity on my part in dealing with the NN debate. I think you both were correct. Hopefully, some of my later work adds some more details.

    More generally, I do not think that “infrastructure” necessarily means government provided or regulated, but it does often mean that markets may fail for a variety of reasons, many of which I talk about in the paper. My focus is primarily on the demand side — why does society demand infrastructure? how does infrastructure generate value? etc. — and not the supply side, which means that I do not reach firm policy conclusions (I think I am pretty explicit about that). I also attempt to explain the advantages of managing certain infrastructure as a “commons,” by which I mean access and use made available to the relevant community (usually the public for most infrastructure) on a nondiscriminatory basis. A point that may resonate with libertarians, I suppose, is that managing infrastructure as a commons avoids relying on infrastructure providers or the government to make decisions about the types of users or uses (or downstream markets) that are worthy of priority. It is a rather complicated point for a blog post/comment, so I’ll leave it at that and just point to the article for details.

    OK, a few quick thoughts rambles into too much. my apologies.

    Brett

  • http://www.luc.edu/law/faculty/frischmann.html Brett

    Tim,

    I appreciate your comments and critique. A few quick reactions. First, the article you focused on is really aimed at developing a better understanding of the benefits of nondiscriminatory public access to “infrastructure” generally. The article was not motivated by or focused especially on the network neutrality debate, and the points made in Part IV are aimed at better articulating the benefits on nondiscrimination in the Internet context; some of the basic points that I hoped to add to the debate were that the social benefits from nondiscriminatory access to and use of the Internet go much further than supporting the emergence of new applications and content (though such benefits are important) and that competition theory alone doesn’t capture the full range of economic (much less social) issues–that is, there are market failures associated with infrastructure-dependent public and nonmarket goods that even competition doesn’t solve, and a lack of competition may worsen. I have since written another paper with Barbara van Schewick that aims more directly at network neutrality (and Chris Yoo’s work in particular) — http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014691. Which brings me to the next point I should make. I do not claim to have fully articulated the path toward a fully prioritized Net, and I hope you are right that networks lack the power to prioritize packet delivery according to user/use. As Barbara and I discuss, the technology exists and the incentives to prioritize (discriminate) exist, and so I am not quite sure what (other than the potential threat of regulation) you think is keeping or will keep networks in check. Competition? I should also note that my concern is not that the Internet will become proprietary; it already is for the most part. My concern is with discrimination among packets on the basis of user or use. Though that is my concern, I explicitly acknowledge that there are tradeoffs involved and that such discrimination is rational from the perspective of network owners. Generally speaking, I think most of the problems network owners claim discrimination would solve can be solved via nondiscriminatory means (e.g., congestion pricing can be implemented in a manner that does not set prices or otherwise prioritize delivery based on the user or use). Of course, there are limits and thus tradeoffs. I hope my work is sufficiently candid about these issues.

    You suggest that I support regulation that would be incoherent. If I were to champion a rule, I suppose I would propose a pretty simple rule: no discrimination on the basis of user or use. This is obviously a very strong rule, probably much stronger than most NN advocates would support. It doesn’t distinguish between reasonable and unreasonable discrimination. Anyway, I haven’t spent a considerable amount of time crafting rules and trying to generate regulation.

    It is interesting that both you and Lessig (in his Reply to my paper that was also published in the Minn. Law Review) call for more specificity on my part in dealing with the NN debate. I think you both were correct. Hopefully, some of my later work adds some more details.

    More generally, I do not think that “infrastructure” necessarily means government provided or regulated, but it does often mean that markets may fail for a variety of reasons, many of which I talk about in the paper. My focus is primarily on the demand side — why does society demand infrastructure? how does infrastructure generate value? etc. — and not the supply side, which means that I do not reach firm policy conclusions (I think I am pretty explicit about that). I also attempt to explain the advantages of managing certain infrastructure as a “commons,” by which I mean access and use made available to the relevant community (usually the public for most infrastructure) on a nondiscriminatory basis. A point that may resonate with libertarians, I suppose, is that managing infrastructure as a commons avoids relying on infrastructure providers or the government to make decisions about the types of users or uses (or downstream markets) that are worthy of priority. It is a rather complicated point for a blog post/comment, so I’ll leave it at that and just point to the article for details.

    OK, a few quick thoughts rambles into too much. my apologies.

    Brett

  • http://www.techliberation.com/ Tim Lee

    Brett, thanks for commenting. I’ve read your “Reply to Prof. Yoo” paper, and I actually agreed with a lot of it. I’m hoping to do a post on that paper in the near future.

    As Barbara and I discuss, the technology exists and the incentives to prioritize (discriminate) exist, and so I am not quite sure what (other than the potential threat of regulation) you think is keeping or will keep networks in check. Competition?

    I think that, even leaving competition questions aside, there are more constraints on the owners of open networks than is commonly supposed. In a nutshell, I don’t think discrimination would be a profitable business strategy for a big telco like AT&T; or Verizon because it would break a lot of existing applications without creating much in the way of new revenue opportunities. This isn’t an argument I can make properly in a comment, but I’ve got a paper coming out that makes the argument in some detail. If you’re interested, I’d love to send you a draft and get your comments.

  • http://www.techliberation.com/ Tim Lee

    Brett, thanks for commenting. I’ve read your “Reply to Prof. Yoo” paper, and I actually agreed with a lot of it. I’m hoping to do a post on that paper in the near future.

    As Barbara and I discuss, the technology exists and the incentives to prioritize (discriminate) exist, and so I am not quite sure what (other than the potential threat of regulation) you think is keeping or will keep networks in check. Competition?

    I think that, even leaving competition questions aside, there are more constraints on the owners of open networks than is commonly supposed. In a nutshell, I don’t think discrimination would be a profitable business strategy for a big telco like AT&T or Verizon because it would break a lot of existing applications without creating much in the way of new revenue opportunities. This isn’t an argument I can make properly in a comment, but I’ve got a paper coming out that makes the argument in some detail. If you’re interested, I’d love to send you a draft and get your comments.

  • Brett

    Of course, send it along!

  • Brett

    Of course, send it along!

  • http://enigmafoundry.wordpress.com eee_eff

    I can count the number of serious reports of network neutrality violations on my fingers,
    And how many fingers do you have, Tim:

    Amazingly, as the examples of case after case after case of ISP’s instituting content-based suppression of expression (or plainly said: Censorship) pile up, certain bloggers (mainly ‘libertarian’) continue to deny that this is talking place at all. Over at TLF James Gattuso makes an incredible assertion:
    Net neutrality regulation has often been described as a “solution without a problem.” While supporters produce hypothetical concerns like little chocolate doughnuts, real-life examples of abuse have been virtually impossible to find. [emphasis added by e_f] That probably explains the excitement in the pro-regulation camp over an incident last week involving the unlikely combination of AT&T; and Pearl Jam.
    James, to find something, you do actually have to—look!

    Here are four other examples, each of them would easily warrant creation of net neutrality laws. Taken together, however, they make an overwhelming case. And let’s not forget the many bands that have been censored recently–Pearl Jam was just the first big one that AT&T; tried to censor.
    In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.
    In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a labor dispute.
    Shaw, a big Canadian cable TV company, is charging an extra $10 a month to subscribers in order to “enhance” competing Internet telephone services.
    In April, Time Warner’s AOL blocked all emails that mentioned http://www.dearaol.com – an advocacy campaign opposing the company’s pay-to-send e-mail scheme.
    And here’s an account of At&T;’s pattern of censoring political speech by bands:
    “I read your article about this and it makes me so angry that AT&T; say this is a one time mistake.
    “They did the same thing on the webcasts from Bonnaroo in June during the John Butler Trio show when he was talking about the lack of response from our government during Katrina, and also during the Flaming Lips show when the lead singer was talking about how much George Bush had screwed up. I was at both of those live shows and saw the webcasts later. The sound did not cut out at any other time – only when someone was talking about George Bush or the goverment in a negative way.
    “It was not a mistake, it is full out censorship.”
    And from the daily swarm, a whole list of censored acts:
    UPDATES:
    Alleged: Nightwatchman (Tom Morello) @ Bonnaroo 2007 (Nightwatchman message board)
    Did anyone else watch The Nightwatchman live stream from bonnaroo? Everytime Tom began to talk the audio would cut out. I’m assuming that it wasnt just me.
    Alleged: Lupe Fiasco @ Lollpalooza 2007 (Pearl Jam message board)
    I actually missed the Pearl Jam set, but I saw Lupe Fiasco’s performance earlier in the day. He has a song called “American Terrorist”, and while the song itself seemed to go by untouched… Lupe’s lead in to the song was. It went something along the lines of “Some of you might know him as George W. Bush… The President. I know him as George W. Bush ___________ (dead air)”. Having seen Lupe in concert before, I know that muted out section was a “American Terrorist”. He pretty much yells it into the mic before launching into the song.
    Alleged: Lily Allen @ Bonnaroo 2007 (Lollapalooza message boards)
    They were definately censoring what Lily Allen was saying in between songs. When there are technical problems, the picture will stop and sometimes the word playlist above the buttons on the video screen will change to buffering. During Lily Allen my picture would keep playing fine and the sound was gone. The sound while the Roots were talking in between songs just cut out for the first time.
    Alleged: Ozomatli (and everyone else!) @ Coachella 2007 (MicheBella on Rotten Tomatoes)
    In nearly every band I watched, there was a moment when said band spoke to the crowd. Suddenly, the sound disappeared. I just watched Ozomatli, a very political band, and at the end of a long segment of talking with no sound, the guy turned around and had a picture of George Bush on his back for a split second.
    Alleged: Tom Petty (and everyone else!) @ Bonnaroo 2006 (FunknJam Productions messageboard)
    A big WTF? to the people in charge of streaming this webcast!! At first I thought that maybe it was a glitch in the streaming or my computer behaving funny. But every so often, the audio would cut out. And it always cut out while there seemed to be some interesting lyrics going on. I didn’t fully realize that the webcast was being CENSORED FOR CONTENT until Tom Petty sang for the third time, and had censored for the third time, “Let’s get to the point, Let’s (dead air) and turn the radio on….” Like that song hasn’t been played on the radio to death?!??! I can’t help but think this all had something to do with…. “Hey Wakarusa Policeman…”
    Alleged: Buddy Guy @ Bonnaroo 2006 (webcast setlist)
    Talks about Hip Hop/sings about a Cow/Bull/Mule ( censored )
    Personally, it would seem that a pattern of behavior exists which has had the effect of denying people their civil rights. I am reluctant to advocate prosecution at the drop of a hat, but in this case, AT&T; went far beyond any bounds of propriety.

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    I can count the number of serious reports of network neutrality violations on my fingers,

    And how many fingers do you have, Tim:

    Amazingly, as the examples of case after case after case of ISP’s instituting content-based suppression of expression (or plainly said: Censorship) pile up, certain bloggers (mainly ‘libertarian’) continue to deny that this is talking place at all. Over at TLF James Gattuso makes an incredible assertion:
    Net neutrality regulation has often been described as a “solution without a problem.” While supporters produce hypothetical concerns like little chocolate doughnuts, real-life examples of abuse have been virtually impossible to find. [emphasis added by e_f] That probably explains the excitement in the pro-regulation camp over an incident last week involving the unlikely combination of AT&T and Pearl Jam.
    James, to find something, you do actually have to—look!

    Here are four other examples, each of them would easily warrant creation of net neutrality laws. Taken together, however, they make an overwhelming case. And let’s not forget the many bands that have been censored recently–Pearl Jam was just the first big one that AT&T tried to censor.
    In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.
    In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a labor dispute.
    Shaw, a big Canadian cable TV company, is charging an extra $10 a month to subscribers in order to “enhance” competing Internet telephone services.
    In April, Time Warner’s AOL blocked all emails that mentioned http://www.dearaol.com – an advocacy campaign opposing the company’s pay-to-send e-mail scheme.
    And here’s an account of At&T’s pattern of censoring political speech by bands:
    “I read your article about this and it makes me so angry that AT&T say this is a one time mistake.
    “They did the same thing on the webcasts from Bonnaroo in June during the John Butler Trio show when he was talking about the lack of response from our government during Katrina, and also during the Flaming Lips show when the lead singer was talking about how much George Bush had screwed up. I was at both of those live shows and saw the webcasts later. The sound did not cut out at any other time – only when someone was talking about George Bush or the goverment in a negative way.
    “It was not a mistake, it is full out censorship.”
    And from the daily swarm, a whole list of censored acts:
    UPDATES:
    Alleged: Nightwatchman (Tom Morello) @ Bonnaroo 2007 (Nightwatchman message board)
    Did anyone else watch The Nightwatchman live stream from bonnaroo? Everytime Tom began to talk the audio would cut out. I’m assuming that it wasnt just me.
    Alleged: Lupe Fiasco @ Lollpalooza 2007 (Pearl Jam message board)
    I actually missed the Pearl Jam set, but I saw Lupe Fiasco’s performance earlier in the day. He has a song called “American Terrorist”, and while the song itself seemed to go by untouched… Lupe’s lead in to the song was. It went something along the lines of “Some of you might know him as George W. Bush… The President. I know him as George W. Bush ___________ (dead air)”. Having seen Lupe in concert before, I know that muted out section was a “American Terrorist”. He pretty much yells it into the mic before launching into the song.
    Alleged: Lily Allen @ Bonnaroo 2007 (Lollapalooza message boards)
    They were definately censoring what Lily Allen was saying in between songs. When there are technical problems, the picture will stop and sometimes the word playlist above the buttons on the video screen will change to buffering. During Lily Allen my picture would keep playing fine and the sound was gone. The sound while the Roots were talking in between songs just cut out for the first time.
    Alleged: Ozomatli (and everyone else!) @ Coachella 2007 (MicheBella on Rotten Tomatoes)
    In nearly every band I watched, there was a moment when said band spoke to the crowd. Suddenly, the sound disappeared. I just watched Ozomatli, a very political band, and at the end of a long segment of talking with no sound, the guy turned around and had a picture of George Bush on his back for a split second.
    Alleged: Tom Petty (and everyone else!) @ Bonnaroo 2006 (FunknJam Productions messageboard)
    A big WTF? to the people in charge of streaming this webcast!! At first I thought that maybe it was a glitch in the streaming or my computer behaving funny. But every so often, the audio would cut out. And it always cut out while there seemed to be some interesting lyrics going on. I didn’t fully realize that the webcast was being CENSORED FOR CONTENT until Tom Petty sang for the third time, and had censored for the third time, “Let’s get to the point, Let’s (dead air) and turn the radio on….” Like that song hasn’t been played on the radio to death?!??! I can’t help but think this all had something to do with…. “Hey Wakarusa Policeman…”
    Alleged: Buddy Guy @ Bonnaroo 2006 (webcast setlist)
    Talks about Hip Hop/sings about a Cow/Bull/Mule ( censored )
    Personally, it would seem that a pattern of behavior exists which has had the effect of denying people their civil rights. I am reluctant to advocate prosecution at the drop of a hat, but in this case, AT&T went far beyond any bounds of propriety.

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