-- JulianDunn - 10 Mar 2008 Julian Dunn Response Paper #1 Word Count: 999 The current battle in Washington over whether to enshrine Net Neutrality into law or not falsely redraws the baseline of what we are entitled to on the Internet. The committees say we can permit ISPs to sell preferred access to the tap in a ‘tiered’ model, or we can prohibit them from discriminating in the ‘neutral’ model, subject to the exception that “reasonable network management” (RNM) shall be allowed. The necessity of the RNM exception (from the FCC’s 2005 Broadband Policy Statement) has been conceded even by many critics of the telecoms. But as has become clear over the past months, few know the full scope of network management tools employed by the telecom companies and, by extension, how reasonable they might be. Network management of the sort employed by Verizon is never reasonable, and the RNM exception should be eliminated. Network algorithms have always routed packets, which by definition discriminate because they articulate a method for allowing one packet through before another. But this is not based on whether you are a competitor in a related market, or on whether the information in the packets is copyrighted. By no means should we think that Net Neutrality represents a new slate of rights; If accepted in the current version, a neutral net would in some ways undermine the rights we have long enjoyed. The current showdown is designed to give the appearance of fairness while protecting providers to the detriment of new entrants and consumers. Although the incumbent oligarchs would like us to believe otherwise, P2P? is more efficient than the monolithic distribution systems it replaces. BitTorrent? allows individuals to act as co-distributors of content, easing stress on any one server to push packets around -- We all bring bandwidth to the table. Incumbent providers have demonized P2P? to draw attention away from their underdeveloped infrastructure and anti-competitive practices. They imply that given limitations Internet’s conceptual architecture, RNM is necessary to prevent bottlenecks caused by these new protocols. But BitTorrent? presents a challenge to the physical infrastructure not the algorithms that operate it. The real issue that BitTorrent? exposes is the pitifully slowupstream bandwidth of home broadband connections. BitTorrent? may interfere with QoS? for other users, but conglomerate ISPs should not be in the position to say which traffic is more important than the others. Increasing the speed of the network overall and switching to WiMax? (which allows a scheduling algorithm instead of WiFi? ’s contention access) will solve the QoS? problem without giving any unwarranted power to private parties. The telecoms claim that any physical limitations in the infrastructure can only be remedied by the tiered model, and the revenue it would generate. But it is companies who are exposed to competition have the proper incentives to meet consumers’ needs (by building upstream infrastructure to allow upstream bandwidth at the same incremental cost as downstream), not those whose inefficiencies are subsidized. The telecoms want to direct the bulk of all traffic through a few portals and capture the residual benefits, but that is not their right. Technology is enabling fulfillment of Congress’ stated policy goals (growth, openness, deregulation, innovation, nondiscrimination, etc.) in ways not previously conceived. But there is also new technology in the hands of incumbents that allows them to hamstring legitimate P2P? traffic. Pursuant to its stated goals, Congress must protect technologies that secure constitutional rights and core economic and social objectives even if they may present new challenges to copyright or patent law, or threaten incumbent monopolies. When monopolists are allowed to operate their inefficient networks behind a curtain of statutory and regulatory protection, nearly all the stated goals for Internet regulation are violated. If Verizon cannot dupe us into accepting a tiered Internet, they would next like us to accept the need for proprietary applications to filter the information running through their networks to maintain QoS? . The RNM exception is exactly that. The 2008 Internet Freedom Preservation Act only tightens the belt a little. It points out that nondiscrimination is deeply rooted in the Internet’s history; Unfortunately the drafters have chosen to protect that deep history with largely meaningless language. It adds mechanisms for periodic Internet Freedom Assessments and Broadband Summits, but no changes are mandated. In fact, the 2008 Act may be inconsistent on its face: It strives to ensure open access for all providers of content, but sees no problem with “discriminatory favoritism” of incumbents as long as such discrimination is reasonable. The text clarifies that, in fact, both “interference” and “discrimination” by an ISP may be allowed. Given Verizon’s ex post ‘clarification’ of their ToS? , they likely believe they’ve never done anything unreasonable. They will continue to veil all offensive practices in secrecy and denial until they are caught, because no disclosure is required. When they are caught, they will claim RNM. From the courts bending over backwards to accommodate secondary liability in the copyright context we can assume they will pull similar tricks to accommodate the interests of big content providers. They will just pay their lawyers to update the ToS? with language strong enough to restore consumer confidence, but too weak to actually prevent them from doing anything they want. It is likely that bandwidth management will become the canned excuse for all future discrimination by ISPs, and there is largely no opportunity for challengers to show the proffered excuse is pretextual. The hands of Verizon and AT&T must be tied by explicit statutory language. Eliminating the RNM exception entirely would be the most effective move -- ISPs shall not regulate traffic on the basis of identity, content or application, full stop. The ISPs are merely common carriers of packets and cannot offer any bandwidth at a price that is not made available to all. The algorithms themselves to continue to manage bottlenecks, and can be updated to build in any network management functions. Software developers can continue to offer tools for spam management. There are no network management measures that need to be consolidated within the control of any single oligarch.