Why Consumers Should Be Worried About Net Neutrality

“Network Neutrality”, more commonly referred to as simply “Net Neutrality” is the concept, coined by Columbia media law professor Tim Wu, that Internet service providers and governments should treat all data on the Internet equally, not discriminating or charging differentially based on user, content, website, platform, application, type of attached equipment, and modes of communication. What this essentially means is that access to websites should remain “free and open”, or, if that sounds a bit too naïve and wishy-washy to you, that once you’ve paid your ISP to provide you with internet access (ignoring governmental intrusions such as the infamous Great Firewall of China, or Britain’s current ill-thought-through attempts to block porn by default) they should treat all traffic relatively equally, be it Peer2Peer file transfer, VoIP (Voice over IP), video conferencing like Skype or Google Hangouts, streaming media like Netflix or Youtube, or simply researching the UK alpaca industry. Your access to www.google.com should not be any more readily available than your access to www.mayfieldalpacas.com.

The reasons for this should be fairly readily apparent. If companies like Google, with their staggering economic power, could pay your broadband provider to solely, or preferentially, provide access to their site rather than that of a less wealthy competitor it could easily lead to a situation where new internet start-ups, without the money to pay for high-speed access, cannot get off the ground or build a fan base. The great risk associated with a lack of Net Neutrality is that it would lead to a “two-tiered internet” – in which broadband providers would develop faster and faster connections, on which you could download gigabytes of information in minutes, instantly stream high quality video and websites could handle huge amounts of traffic without slowing or crashing – but this higher tier would, naturally, come at a perhaps-not-inconsiderable cost. Surely a fair price for the likes of Google, Netflix, Amazon or iTunes to pay. Meanwhile there would of course still be the option to access the lower tier, the plebeians of the internet, who do not have to pay but, understandably, must make do with a distinctly slower down- and upload speed.

Now, just imagine that there are these two tiers, no content “blocking”, simply a significantly slower speed for the content providers who cannot pay for access to the Elysium of the internet; how likely do you think it is that a small video-, music- or video game-streaming start-up will be able to really take off? Would you be willing to watch Benedict Cumberbatch work his newest series of Asperger’s-genius-hero magic in low-quality and have to wait 5 minutes for it to load once you had become accustomed to instant high quality? Perhaps you might. But do you imagine that would be the general trend? Futhermore, would you be comfortable with this trend? Does the world truly need new internet start-ups, or could we make do with the ones we have, and and iterations or side projects they deem fit to undertake? I think most would agree that we would not have had the fascinating innovations that are Google, iTunes, Steam, Amazon and many others, had they not been (relatively) free to enter the domain of the interweb (comparatively) unfettered.

Many IT giants like Facebook and Google readily point out that they would have not been able to succeed without the network neutral environment in which they were started.  It doesn’t even need to be an outright ban to have this effect; the big news of this week is that Comcast and Netflix have signed a mutual cooperation agreement to resolve the issue of the high volumes of data which were being used by Comcast customers to stream videos from Netflix. The deal (coming just just 10 days after Comcast agreed to buy Time Warner Cable Inc., which will cement them as an overwhelmingly dominant broadband provider in the US) unsurprisingly involves Netflix paying Comcast for direct access to their broadband network. Similarly worrying is the fact that “[i]n the wake of its deal with Comcast, Netflix is likely to agree to compensate the other big providers...”. This seems to be the sad “I told you so” moment for those of us who worried that the decision of an American federal appeals court to strike down the FCC’s Open Internet Order would lead to just these sorts of arrangements between the most powerful of the content providers and the most powerful of the service providers. The problem was a technicality, that the FCC had classified broadband providers as information rather than telecommunications services, leaving themselves less power to regulate, and in this case leaving themselves without the power to enforce Net Neutrality as per their Open Internet regulations. Hopefully the FCC will re-enact similar provisions ideally applicable under a reclassification of broadband services as communications services. As summarized nicely by Arik Hesseldahl for re/code;

A lot of this is going to boil down to technical and contextual details. A key part of the decision, written by Judge David Tatel, pivots on the legal context in which the FCC was seeking to exert its authority in the first place. If, under the Telecommunications Act, a law enacted in 1996, Internet providers are to be legally considered telecommunications services, covered under Title II of that act, the FCC’s rules would be more likely to stand.

Instead, when the Commission issued the Open Internet Order in 2010, it acted by using its authority under another section of the law, Title I, which classifies them as “information services.” The FCC has fewer regulatory options under Title I than under Title II.

Nonetheless, regarding this most recent hiccup for the Open Internet, it should be pointed out that Netflix has made such arrangements with smaller service providers in the past, and that the idea of a completely net neutral internet has always been a myth – there will always be some forms of direct, indirect, necessary or practical preferential treatment of data packages. The real worry here is that is reinforces a general large scale commercial trend away from developing faster broadband connections across the board to deal with a general trend towards increased traffic, and developing faster broadband purely for those content providers with high bandwidth usage and the money to pay for it. As Tim Berners-Lee, one of the “father of the web“, wrote;

Net neutrality is this: If I pay to connect to the Net with a certain quality  of service, and you pay to connect with that or greater quality of service, then we can communicate at that level. That’s all. It’s up to the ISPs to  make sure they interoperate so that that happens. Net Neutrality is NOT asking  for  the  Internet  for  free. Net Neutrality  is NOT saying  that one  shouldn’t pay more money for high quality of service. We always have,  and  we  always  will. There  have  been  suggestions  that  we  don’t  need  legislation  because we  haven’t  had  it. These  are  nonsense,  because  in fact we have had net neutrality in the past – it is only recently that real explicit threats have occurred.

One of the most laughable, but also dangerous aspects of this newest development in the erosion of Net Neutrality is that this agreement between Comcast and Netflix is dressed up in consumer friendly words by the parties involved. Faster loading times and high quality streaming for Netflix videos? Oh great, they must really care about the consumer experience, they must really be tirelessly working to ensure an ever increasing quality for their service. Their joint statement read thusly:

Comcast Corporation (Nasdaq: CMCSA, CMCSK) and Netflix, Inc. (Nasdaq: NFLX) today announced a mutually beneficial interconnection agreement that will provide Comcast’s U.S. broadband customers with a high-quality Netflix video experience for years to come. Working collaboratively over many months, the companies have established a more direct connection between Netflix and Comcast, similar to other networks, that’s already delivering an even better user experience to consumers, while also allowing for future growth in Netflix traffic. Netflix receives no preferential network treatment under the multi-year agreement, terms of which are not being disclosed.

But the sad reality is that this agreement had to come about because of a dispute between Netflix, the provider of a streaming service which takes up an awful lot of broadband traffic with customers, and Comcast, the broadband provider who was not happy having to carry all this extra traffic without getting their cut above and beyond what they would normally get as a flat rate for carrying any and all internet traffic. Though we have in recent years reacclimatised to the idea of paying for certain amounts of data, or having data limits to our surfing because this is how mobile internet is currently handled, we must not forget that it is many years since we had to worry about how much data we were using for our home internet packages.

Ted Stevens

This picture is a reference to the late Senator Ted Stevens and while it may be considered a bit of a cheap shot, Senator Stevens’ fundamental misunderstandings of how the internet worked were amusing on the one hand (infamously comparing the internet to “a series of tubes”, and confusing “internet” with “email”), but on the other hand scarily indicative of the calibre of politician involved in authoring the Communications, Consumer’s Choice, and Broadband Deployment Act of 2006, as well as staunchly and inarticulately opposing an amendment which would have introduced some measure of mandated Net Neutrality. Senator Stevens was not merely a punchline, he was a lawmaker, and representative of the ill-informed, good-business-practice-and-competition-will-sort-it-all-out thinking of many of those in positions to make big decisions on the future of the internet.

The issues of consumer choice and competition are tied closely to the idea of transparency in any of these commercial practices which may mean you are not receiving truly “net neutral” broadband access. In this area the differences, or perceived differences, between the situation in the US and the EU is abundantly clear.[1] Traditionally, European states have had a greater choice when it comes to selection of a service provider, whereas competition is said to be more restricted to a few major players in the US. There is also the further danger of  increased vertical integration with service and content providers leading to further limits to the idea of effective competition. If Sky are your broadband providers, but also the provider of your streaming video content, it is easy to see why and how they might favour their streamed media over that of competitors. Once again, this does not even need an outright ban – an increase in the quality or download speed for one website over another should be enough to sway consumers to the “better” site. Perhaps it is condescending of me, but I presume that the majority of consumers would not consider the net neutrality implications of trading a modicum of moral integrity for better streaming quality when the new season of Game of Thrones comes out – I’m not certain I’d let it affect my decision, and I’ve be sitting here for hours musing on the importance of net neutrality.

The telecommunications, media and content provision industries are ever more interwoven and the risk seen by many is that ISPs could use traffic management or other  methods to decrease competition against their own content providers or preferred partners.[2] The most basic and common example of this is that many mobile internet providers block or throttle access to VoIP services like Skype because they compete with they own messaging and telephony services.[3] The extreme progression of this could lead to Darren Read’s fear of a cable-TV-style internet, where the content you could access was tied to which internet provider you had and which services they offered themselves or with whom they had partnerships.[4] One solution is ISPs having to declare if their service is I-Can’t-Believe-It’s-Not-Internet rather than full, unlimited internet access. This interesting suggestion is that such services that had significant limitations beyond reasonable traffic management should not call themselves ‘internet access’, as that has come to be understood by the public as open and generally unrestricted access to the public internet.

There was at least a glimmer of support from the White House when President Obama responded to a petition signed by over 105,000 concerned citizens calling for broadband providers to be regulated similarly to phone companies when it comes to non-preferential treatment for processed connections. Of course, the administration would not go this far, but at least paid lip service to supporting the open internet and hoping that the FCC will bounce back with a new set of rules to reapply their Open Internet Order or something similar, hopefully under the more  stable legal grounding of Section 706 of the Telecommunications Act of 1996, as mentioned above.

Remember, friends, the internet is not a big truck, it’s more like a series of tubes, and do you want your broadband provider to get to decide what goes into your tubes? Or to force people to pay extra to put something into your tubes? No? I didn’t think so. Keep your tubes open and free to all, and support Net Neutrality.

~ Shane

[1] Ed Richards, Ofcom chief executive, said: “We don’t think we should bring it over from the US lock, stock and barrel. We have quite often got more competitors in Europe than in the US.” From an article highlighting the fears that net neutrality might be unnecessary or even harmful,  D Gow ‘Warning over higher broadband bills’, guardian.co.uk, 20 October 2008,  retrieved 11 Dec 2012, from http://www.guardian.co.uk/business/2008/oct/20/internet-europe

[2] Darren Read, ‘Net neutrality and the EU electronic communications regulatory framework’ (2012) International Journal of Law and Information Technology, 20, 48, at 54. See also T Wu ‘Network neutrality, broadband discrimination’ (2003) Journal on Telecommunications & High Technology Law, 2, 141 at 142, 161.

[3] Mentioned in the US case of Comcast Corp v FCC (D.C. Cir. 2010) 600 F.3d 642. BEREC and Ofcom’s investigations showed similar results, see Out-Law.com ‘ Regulator reports initial findings on operators’ traffic management practices’, 15 Mar 2012, retrieved at http://www.out-law.com/en/articles/2012/march1/regulator-reports-initial-findings-on-operators-traffic-management-practices/

[4] n 2 above, at 54 – 55.

Further Reading

Samuel Gibbs, “UK porn filter blocks game update that contained ‘sex'”, The Guardian, available at  http://www.theguardian.com/technology/2014/jan/21/uk-porn-filter-blocks-game-update-that-contained-sex

Holly Hamann, “Will the Net Neutrality Verdict Crush Startups?“, Huffington Post, The Blog, available at http://www.huffingtonpost.com/holly-hamann/will-the-net-neutrality-v_b_4782729.html

Chris Menning, Series of Tubes, Know Your Meme, available at http://knowyourmeme.com/memes/series-of-tubes

David Meyer, “Can Europe really offer startups a better deal on net neutrality?“, Gigaom, available at http://gigaom.com/2014/01/15/can-europe-really-offer-startups-a-better-deal-on-net-neutrality/

Tim Worstall, “The Best Story Yet About The UK’s Online Porn Filters“, Forbes, available at  http://www.forbes.com/sites/timworstall/2013/12/25/the-best-story-yet-about-the-uks-online-porn-filters/

TechnoLlama, Is the Internet free and open?“,  available at http://www.technollama.co.uk/is-the-internet-free-and-open

Photo of the internet tubes provided by: MrGluSniffer via photopin cc

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