In several of our previous podcasts (see episodes 34, 35,and 37), we’ve discussed what we’ve called the “Comcast Kerfuffle,” which was the controversy surrounding the steps Comcast took to manage BitTorrent traffic on its networks. Critics called it a violation of Net neutrality principles while Comcast and others called it sensible network management.

This week we saw a new kerfuffle of sorts develop over the revelation in a Monday front-page Wall Street Journal story that Google had approached major cable and phone companies and supposedly proposed to create a fast lane for its own content. What exactly is it that Google is proposing, and does it mean – as the Wall Street Journal and some others have suggested – that Google is somehow going back on their support for Net neutrality principles and regulation? More importantly, what does it all mean for the future of the Internet, network management, and consumers. That’s what we discussed on the TLF’s latest “Tech Policy Weekly” podcast.

Today’s 30-minute discussion featured two of our regular contributors at the TLF, who both wrote about this issue multiple times this week. Cord Blomquist of the Competitive Enterprise Institute wrote about the issue here and here, and Bret Swanson of the Progress & Freedom Foundation wrote about it here and here.  To help us wade through some of the more technical networking issues in play, we were also joined on the podcast by Richard Bennett, a computer scientist and network engineer guru who blogs at Broadband Politics as well as Circle ID and he also pens occasional columns for The Register.  Also appearing on the show was Adam Marcus, Research Fellow & Senior Technologist at PFF, who wrote a “nuts and bolts” essay full of excellent technical background on edge caching and net neutrality.

You can download the MP3 file here, or use the online player below to start listening to the show right now.

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Big news in these parts.

The celebrated openness of the Internet — network providers are not supposed to give preferential treatment to any traffic — is quietly losing powerful defenders. Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal. Google has traditionally been one of the loudest advocates of equal network access for all content providers.

TLFers and commenters: Go.

Google has begun including the “load time factor” into the quality score for ads on its AdWords program.  This means that “Keywords with landing pages that load slowly may get lower Quality Scores (and thus higher minimum bids).  Conversely, keywords with landing pages that load very quickly may get higher Quality Scores and lower minimum bids.”

Google provides two reasons for the change:  “First, users have the best experience when they don’t have to wait a long time for landing pages to load.  Interstitial pages, multiple redirects, excessively slow servers, and other things that can increase load times only keep users from getting what they want: information about your business.  Second, users are more likely to abandon landing pages that load slowly, which can hurt your conversion rate [and thus lower profits for both the advertiser].”

One could easily imagine that some might complain that Google is “discriminating” against slower-to-load pages, and even hypothesize that this would introduce a systemic bias towards sites that can afford faster server throughput.  True, this change makes the AdWords system non-“neutral” in ways that will benefit some advertisers over others.

But so what?  Google is simply engaging in smart management of their network:  Giving priority to ads that load faster introduces a strong incentive for all advertisers to speed up their pages in any manner possible.  This small change in pricing structure could have broader effects on the efficiency of Internet browsing for all users–at least in terms of building home pages that load faster–particularly if other advertising platforms follow suit.  Google explains that this change is merely an application of one of the “Ten things Google has found to be true”:

3. Fast is better than slow. Google believes in instant gratification.  You want answers and you want them right now. Who are we to argue? Google may be the only company in the world whose stated goal is to have users leave its website as quickly as possible.  By fanatically obsessing on shaving every excess bit and byte from our pages and increasing the efficiency of our serving environment, Google has broken its own speed records time and again.  Others assumed large servers were the fastest way to handle massive amounts of data.  Google found networked PCs to be faster.  Where others accepted apparent speed limits imposed by search algorithms, Google wrote new algorithms that proved there were no limits.  And Google continues to work on making it all go even faster.

Amen!  Who could possibly disagree?

But if Google’s prioritization of its AdSense network is a good thing, should we not encourage other network operators to look for analogous ways to increase the operational efficiency of their networks through prioritization?  For example, how else could Gogo ensure the functionality of soon-to-be launched in-flight wireless boadband service if it could not prioritize low-bandwidth activities like Web surfing and email over high-bandwidth activities like streaming video?   As the DOJ noted in its September 2007 filing opposing the adoption of “net neutrality” mandates by the FCC, “The prioritization of certain content and content providers (such as streaming video and other latency-sensitive content), offering of premium services and different levels of quality of service, preferential treatment of certain content, and vertical integration–in many instances actually may be procompetitive.”

Of course, one might respond that Google’s form of prioritization is “good” and that other forms of prioritization are “bad.”  But what about Gogo’s?  Indeed, by what measure should such assessments be made and who is to make them?

Ultimately, the best answer is that consumers should have the freedom to choose among networks and services at the various layers of the Internet.  The key to such competition is, of course, transparency:  making it clear to users how traffic or services are being prioritized and why.  As I’ve discussed, Google’s recent announcement that it will offer users free tools to monitor ISP traffic management is both a means of increasing that transparency and a recognition that increased transparency will allow users and watchdogs to ensure that the “right” kind of prioritization is taking place while also facilitating the enforcement of user terms of use.

In this respect, Google is leading by example:  Google has explained very clearly what they’re doing and why, starting with their initial announcement in May that landing page load time would soon be incorporated into AdWords Quality Scores and their subsequent announcement that Google’s Keyword Analysis tools would allow each advertiser to monitor Google’s calculation of its landing page load time.  The adoption of such transparency as an industry best practice for explaining prioritization combined with the availability of user monitoring tools like those being developed by Google would provide a powerful alternative to government “Net Neutrality” mandates–without depriving users of the freedom to choose prioritization.

The Register reports that Google is developing yet another suite of free tools for broadband users–this time aimed at allowing users to monitor traffic-management/shaping conducted by their ISP.

“We’re trying to develop tools, software tools…that allow people to detect what’s happening with their broadband connections, so they can let [ISPs] know that they’re not happy with what they’re getting – that they think certain services are being tampered with,” Google senior policy director Richard Whitt said this morning during a panel discussion at Santa Clara University, an hour south of San Francisco.

The article provides a short-but-interesting history of how Google’s views on Net Neutrality have evolved in recent years and about the debate inside the company as to whether to governmental prohibition of traffic management/prioritization by enshrining some conception of Net Neutrality in law.  Today, of course, the company has become perhaps the most outspoken corporate defender of Net Neutrality principles.  Google senior policy director Richard Whitt shows no sign of rethinking Google’s commitment to those principles, but suggests that the monitoring tools being developed by Google might fundamentally change the calculus of the debate:

“The forces aligned against us are real. They’ve been there for decades. Their pockets are deep. Their connections are strong with those in Washington,” he said. “Maybe we can turn this into an arms race on the application software side rather a political game.”

As Verizon’s Link Hoewing observes, these tools promise to increase dramatically the transparency of network management practices.  This increased transparency will provide a clearer picture of what ISPs are actually doing, something that is largely a subject of speculation today, while helping to remove the current uncertainty that fuels sometimes wild speculation about the “death of the Internet” and other calamities in a world without Net Neutrality.  Psychologically, transparency may thus remove much of the need for perceived need for Net Neutrality mandates.

But, of course, as defenders of traffic prioritization argue, there will be instances where ISPs “deviate from Net Neutrality principles” by prioritizing certain traffic to enable advanced voice and video services over more intelligent networks.   (Read, for example, George Ou’s post taking issue with aspects of The Register‘s story.)  Of course, some will surely point to such instances as further evidence of the perceived “need” for regulation, but the fact that these practices will be rmore readily apparent to more users than ever before will in fact provide three powerful alternative mechanisms for disciplining ISP traffic management.

First, it will be easier to hold ISPs accountable under their own terms of use–especially with the involvement of citizens’ watchdog groups such as Lauren Weinstein’s “Network Neutrality Squad.”  Clearly, if Google’s planned tools suggest that an ISP is violating the applicable provisions of its terms of use and if that suspicion can be properly confirmed, such a violation should give rise to a breach of contract claim or an unfair-and-deceptive trade practice action.  Increased user awareness of what traffic management actually involves and when it is actually being conducted should also create public pressure on ISPs to specify with greater granularity what they will and will not do.

Second, as demonstrated by the recent “Comcast Kerfuffle,” ISPs could suffer reputational consequences for either (i) violating their terms of use or (ii) simply conducting forms of traffic management that significantly degrade user experiences without any corresponding benefit to users.  The better users understand how ISPs manage their networks, the more likely they will be to appreciate the need for certain kinds of traffic management and the less likely they will be to equate all forms of traffic management with the dystopian scenarios thrown out by the Chicken Littles who insist that the digital firmament is falling and that the “End of the Internet” is upon us if we fail to regulate–and quickly.

Third, Google’s tools will facilitate good, ol’ fashioned self-help.   The more consumers know about traffic management, the more they will be able to find technological means of practices they consider particularly objectionable–the “arms race” referenced by Whitt.

Those of us who defend the ISP’s freedom to manage its network–and, like George Ou, the corresponding freedom of the user to choose prioritization–should never make the mistake of thinking that all prioritization is equally good.  Nor should we let our opposition to coercive Net Neutrality mandates diminish our appreciation for purely voluntary efforts like Google’s monitoring tools.  Surely we can join even those who favor Net Neutrality mandates in agreeing that “Sunlight is the best disinfectant,” as Justice Brandeis famously said.