12:50 PM

Opinion: Protecting Net Neutrality From The Neutricidal Telcos

The Internet community needs to force regulators to preserve net neutrality. But it'll be tricky to write laws that define net neutrality without destroying what they're trying to protect, says Internet activist Cory Doctorow.

Once you strip away all the high-minded talk, the burning network neutrality issue comes down to this: How can we stop phone companies from committing "neutricide"--destruction of the neutrality of the Internet?

Internet activist Cory Doctorow

Internet activist Cory Doctorow

Photo by Bart Nagel
Phone and cable companies are looking for the right to charge popular Internet sites like Google and Yahoo to carry data to customers. The big Internet companies, they argue, are getting a free ride, using lots of bandwidth to get to customers and not paying a fair price for it. This will only get worse, they say, as multimedia content becomes more popular, demanding more bandwidth.

This argument is rubbish. Internet companies already are paying for bandwidth from their providers, often the same companies that want to charge them yet again under their new proposals. And for these providers to be screaming for the protection of the free market is sheer hypocrisy--they themselves are creatures of government regulation, basing their business on government-granted extraordinary privileges.

Something must be done to protect net neutrality from phone and cable companies seeking to commit neutricide. These companies must be required to grant equal access to the Internet for all traffic. But these regulations will be tricky to write. Done badly, they'll stifle the competition they're trying to protect.

Why does network neutrality need protecting? Craigslist co-founder Craig Newmark addressed this point in an editorial he wrote for "Let's say you call Joe's Pizza, and the first thing you hear is a message saying you'll be connected in a minute or two, but if you want, you can be connected to Pizza Hut right away. That's not fair, right? You called Joe's and want some Joe's pizza."

It's a dumb idea to put the plumbers who laid a pipe in charge of who gets to use it. It's a way to ensure that incumbents with the deepest pockets will always be able to deliver a better service to the public, simply by degrading the quality of everyone else's offerings. If you want to ensure that no one ever gets to creatively destroy an industry the way that Amazon, eBay, Google, Yahoo, and others have done, just make paying rent to a phone company a prerequisite for doing business.

Practically everyone agrees on this. Only the carriers oppose it, and their opposition is so lame it'd be funny if it wasn't so scary. The core argument from the carriers is that Google and other Internet companies get a "free ride" on their pipes. AT&T and others take the position that if you look up a search result or stream a video from Google using your DSL connection, Google profits, but the carriers don't get a share of the proceeds.

That's wrong.

Corporate Welfare Bums
This lame argument has been rebutted many times, but rarely so elegantly as in this humorous, imaginary dialog between a father and son 13 years in the future. As the dialogue points out, Google and other Internet companies are already paying for high-bandwidth connections and datacenters to run their projects.

Tom Giovanetti, president of the think-tank the Institute for Policy Innovation, writes an ill-informed rant about the fallout of a neutral net, espousing the belief that unless the telcos are given the power to pick the Internet's winners and losers, the Internet will be so overwhelmed with amateur creativity that all the legitimate businesses will find themselves unable to provide a high-enough-quality service to command subscription fees, and the whole thing will collapse. Even police and fire services will be jeopardized, Giovanetti claims.

But Gary Bachula, a VP at the entity that oversees Internet2, the most important, best-developed experimental Internet site in the world, takes just the opposite approach. Here's some of Bachula's Senate testimony on the subject, as reported on Salon:

"[O]ur engineers started with the assumption that we should find technical ways of prioritizing certain kinds of bits, such as streaming video, or video conferencing, in order to assure that they arrive without delay. As it developed, though, all of our research and practical experience supported the conclusion that it was far more cost effective to simply provide more bandwidth. With enough bandwidth in the network, there is no congestion and video bits do not need preferential treatment."

Hands Off the Internet, an anti-net-neutrality organization (with a domain name registered to a PR firm specializing in telcos), argues that the government shouldn't regulate the Internet, and any regulation that forbade the telcos from sticking toll-roads on their pipes would be undue interference into the free market for last-mile wires.

It's high-minded and nice-sounding, but there are few industries that owe their existence to regulation as much as the carriers. These companies are gigantic corporate welfare bums, having received the invaluable boon of a set of rights-of-way leading into every basement in America. Phone companies have a legal right to force you to provide access to your home for their pipes. Try calculating what it would cost to get into every U.S. home without a regulator clearing your path, and you quickly realize that the carriers should be the last people complaining about the distorting effect of regulation on their business.

The Bells and cable companies owe their existence to governmental largesse, and, while they're profit-making private firms, they are, in effect, quasigovernmental organizations. A Bell that wants to get rid of regulation is about as practical as a cotton-candy cone that wants to get rid of sugar. Bells are nothing but a thin veneer of arrogance wrapped around a regulatory monopoly.

How Do We Stop Neutricide?
Phone companies' plan for a tiered Internet is dangerous and has a good chance of succeeding. They must be stopped. The question is, how?

The most prominent voices for net neutrality have been calling for a regulatory solution. Regulation created this mess, so maybe regulation can solve it. Congress can pass a law directing the FCC to adopt rules to ensure neutrality.

It's a plausible answer, but the devil is in the details. If we're going to come up with regulations to keep the phone companies in line, we'll need to be sure they do the job. That means:

* The regulation should only catch companies when the free market and competition fail to protect customers. The long-distance fiber market, for example, has proven to be quite amenable to competition, as has the local ISP business. The rule has to be for the last mile, and only the last mile, whether delivered by wires or wireless.

* The rules should keep the phone companies in check without screwing the next generation of network services. Overlay carriers like FON, who provide last-mile connectivity by piggy-backing on the carriers' networks, should be free to play around with business models. This is about protecting us from monopolies in the last mile, not locking them in as the only last mile we'll ever get. We want to leash the Bells, not new innovators.

What Is Neutral, Anyway?
Additionally, the rules are going to have to do three incredibly tricky things:

1. Define network neutrality. This is harder than it sounds. If a Bell lets Akamai put one of its mirror servers in a central office, then Akamai's customers can get a better quality of service to the Bell's customers than those using an Akamai competitor. This is arguably a violation of net neutrality, but how do you solve it? It's probably not practical to require the Bells to let all comers put local caches on their premises; there's only so much rack space, after all.

Another tricky case: the University that provides a DSL service to its near-to-campus housing and configures its network to deliver guaranteed throughput to a courseware archive. It gets even stickier if the DSL and/or the courseware archive are supplied by commercial third parties. Poorly written net neutrality regulations could prevent universities from providing those services, which should be allowed.

This is just the tip of the iceberg. Imagine a Bell that came up with a plan to let services tune their applications to improve on throughput to its customers. For example, some Bells might be able to tune service more efficiently by providing real-time feedback to companies about the optimal frame size for its network, or information on traversing its internal private networks, and so on. This is a good way to wring performance out of lines and switches, but the efficiencies decay if the Bell is legally required to provide this service to every customer, without being compensated for the additional effort.

2. Revise the definition of network neutrality in a way that keeps pace with new network realities. Next week, someone will come up with a way of tweaking the Internet that may not be neutral. It will happen again the week after, and the week after that. Whichever regulator gets to play neutrality czar will have to make rules that keep pace with those changes.

The definition must avoid the risk that the rules will fail to keep up with advancing technology, allowing the creation of a tiered Internet by means they today's regulators don't envision.

Even worse is the risk that the Bells (or someone else, like a far-future, calcified and thoroughly evil-fied Google) will get the rules changed to keep new entrants out of the market by declaring their businesses non-neutral.

3. Most difficult of all: Know when nonneutrality is committed, and stop it. It's not enough to prohibit the Bells from advertising the rate for tiered access to their pipes. The Bells have a long, dishonorable history of backroom deals with spammers, the National Security Agency, and other unsavory sorts.

How do you detect when the Bells are committing neutricide? It can't be as simple as measuring throughput. There's a host in China that I can't reach from my ISP in London because of an incorrectly configured router at Sprint. That's stupid and painful, but it's not the same thing as anti-neutral. Distinguishing stupidity from malice from outside is going to be very hard.

One thing we don't want is something like the SEC's anti-insider-trading rules. Network neutrality rules won't have much practical use if the only way to get them enforced is to convince a bureaucrat at the FCC to raid AT&T's sales office, seize its files, and investigate your suspicions of wrongdoing. The entities who have the power to spur crack Commission Commandos into action are the powerful ones, already best equipped to fight the Bells on their home turf. Spunky startups aren't going to be the ones with real leet skillz at pushing paper on the Hill.

We don't want to encourage a situation in which in Bells spend ten years coming to detente with the YaGoogleSofts of the world, agreeing finally to shut everyone else out.

Now, there is an alternative, which is to set things up so that big companies can act as proxies for the little guys' interests. That's how it works sometimes in copyright. Home taping was made legal because Sony, a corporate giant, was willing to take on the Hollywood studios in the eight-year Betamax legal battle. Once they'd won that fight, all the little companies got to enjoy the precedent they'd set, and we got to enjoy the explosion of cheap and flexible home recording gear.

Once you answer all these questions, one more hangs in the balance: which agency should have regulatory authority?

The Federal Communications Commission seems like a natural. After all, they're already the people who oversee the telcos.

But the FCC may be the worst people to put in charge of the neutrality issue. They are notoriously credulous when it comes to serving the interests of the incumbents they supposedly regulate. These are the same brain surgeons and rocket-scientists who thought that the Broadcast Flag would actually work to contain piracy. And that was under Commissioner Michael Powell, who was a paragon of consumer advocacy next to his industry shill successor, Commissioner Kevin Martin.

Martin is the Commissioner who castrated Powell's "Four Freedoms" for Internet users, turning basics like "Freedom to obtain service plan information" into "consumers are entitled to competition among network providers, application and service providers, and content providers."

In other words, this is a Commissioner who doesn't even think that we lowly "consumers" deserve to know how much our Internet service costs us.

This man will not protect from the phone companies.

We need to fix this, though, and there may never be a better time to do it. The Bells are hunting at the FCC for the right to compete with cable TV providers. (They have the advantage of having deals in place with all the municipalities and may be able to trounce the cable companies.) They're in the mood to deal, and savvy K Street lobbyists might be able to scuttle the Bells' TV ambitions if they don't back off on the neutrality question.

The Bells' neutricide arguments are so flimsy that they can be debunked in seconds. We'll be able to get millions of Internet users to band together and put senators and representatives on notice that if they sell us out on this, we'll fire them in the 2006 midterm elections.

The trick, then, is figuring out what we should be asking for. Based on the above, any well-developed, plausible net neutrality regime should include:

1. A definition of "last-mile carrier," subject to net neutrality rules

2. A definition of net neutrality

3. A mechanism for keeping the definition up to date with new practices, perhaps a snappy set of principles that can be applied to new businesses

4. A mechanism for detecting breaches of the net neutrality rules

5. A credible enforcement agency and regime for keeping them on our side

Number four is particularly interesting, because every net-head I've mentioned it to has immediately leapt on it as the part we could do right now. A [email protected]-style client that measured the performance of different networks and ISPs from millions of points on the Internet could go far toward creating an impartial, empirical picture of how ISPs, telcos and long-haul carriers do business. It would help we users hold our ISPs to account for bad practices. It would catch sloppy network carriers who continue to advertise routes on broken fiber. And of course, it would be useful for giving an enforcer the inferential basis for investigating potential cases of neutricide.

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There are some early efforts at this. Back in 2004, Richard Whitt published "A Horizontal Leap Forward: Formulating a Layered Policy Approach to Internet Protocol," which lays some of the groundwork for getting us to a neutrality rule, but the field is still pretty wide open.

This is the start of the network neutrality fight, not the end of it. Whether you're a geek, an entrepreneur, a wonk, or a mere user, there's a place for you in the trenches.

Cory Doctorow is co-editor of the Boing Boing blog, as well as a journalist, Internet activist, and science fiction writer.

For opposing views on this issue, see "Down To Business: An Internet E-Z Pass Won't Clog Other Lanes," by InformationWeek editor-in-chief Rob Preston, and "Desperately Seeking Neutrality," on the InformationWeek Weblog.

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