Monday, October 04, 2010

It's last week's news

Updated But still too important to let pass without comment.

Net neutrality, put simply, is the principle that providers can't discriminate among users in managing traffic flow. They can't, for example, give some corporate behemoth the digital equivalent of a superhighway with all green lights while relegating some crummy blog with 35 hits a day to a rutted side road with a stop sign at every intersection. Traffic is traffic and it all gets treated equally.

Net neutrality is one of the reasons the internet has thrived: It has been, at least technologically and theoretically, equally available to all rather than being dominated and ruled by a handful of media conglomerates, à la broadcast media. So of course corporations hate it and persistently have tried to undermine it.

One of the people who was supposedly a champion of net neutrality is Democratic Congressman Henry Waxman of California, who chairs the House's Energy and Commerce Committee. That accolade, apparently, is no longer deserved. Raw Story reported last week that Waxman has put forth a proposal that
under the banner of mandating network neutrality would instead prevent the government from requiring broadband providers to treat all Internet traffic equally.

Waxman, who has vowed that he would support the so-called 'Net Neutrality' policy proposals favored by most Democrats and progressives, has instead put forward an as-yet-unsettled legislative framework that explicitly prohibits the Federal Communications Commission from regulating broadband Internet under Title II of the Communications Act: a caveat key to implementation of what's been called the Internet's First Amendment.

Should the president sign a bill containing Waxman's language, it would effectively kill 'Net Neutrality' efforts and make key parts of a hotly contested proposal by Google and Verizon the law of the land.
Without plunging into the details of that proposal, I'll mention that the Electronic Frontier Foundation has an analysis of it, various points of which it rates "Good," "Interesting," "Troublesome," or "Fail." Even at that, I'm not sure I can agree with some parts they consider "good," such as "limit[ing] the FCC to case-by-case enforcement of consumer protection and nondiscrimination requirements and prohibit[ing] broad rulemaking." While I can share their concern about giving the FCC overly-broad authority, a "case-by-case" approach to the internet, with its tens of millions of content providers from major media outlets to individual blogs, would make any nondiscrimination requirements essentially unenforceable - a concern shared by others, even among some who see good parts to the corporate proposal. Indeed, as Raw Story points out,
[f]rom an Internet user's perspective, traffic shaping and discriminatory practices are impossible to prove without the service provider's own admission that it is occurring.
Despite that, Waxman's bill embraces case-by-case enforcement and states, Raw Story reports, that it gives the FCC no new authority to regulate providers unless the company actually elects to be regulated. What's more, violations of the rules would incur a maximum fine of $2 million, chump change to the majors, particularly in light of the profit potential of skirting those rules.

But even more importantly, the Google-Verizon vision would exempt wireless networks - almost universally agreed to be the future of internet access - from neutrality rules.

John Bergmayer, a staff attorney at Public Knowledge, has said that in doing so, the corporate plan
draws illogical distinctions both on the basis of what technology you use to access the Internet, and between “the public Internet” (Verizon’s mantra on the press call) and “additional online services.”

The Google/Verizon blog post misleadingly mentions “the FCC’s current wireline broadband openness principles.” But the FCC’s 2005 Internet Policy Statement refers to broadband, and does not carve out a distinction for wireless. The FCC was right to see that the Internet is the Internet—it makes no sense to apply different principles to different technologies.
That is, what Google and Verizon are trying to do is to create distinctions that did not exist previously in order to carve out a space where they can act to pursue their own corporate interests without oversight. And Henry Waxman is right there with them. While his bill
carries language that speaks of preventing ISPs from "unjustly or unreasonably" discriminating against "lawful traffic," the spirit of the rule is completely undermined by text that follows.

For today's fast-growing wireless networks ... it makes a provision allowing for "reasonable network management," but prohibits blocking "lawful Internet websites".
Which raises two enormous problems: One is, what defines "lawful?" Who gets to decide what is a "lawful" site? The primary issue here seems to be peer-to-peer sites, which the majors and their entertainment corporation partners hate with a passion. It's safe to say that at any given moment on any given p2p site there is a lot of copyrighted material being illegally distributed and a lot of other material, both copyrighted and non-copyrighted, being legally distributed. Is that site "legal" or not? Does it depend on how much of the traffic is being distributed contrary to copyright restrictions? Who decides how much is too much?

Here's another: Suppose the relevant honchos of some provider corporation dislike the War Resisters League because of its support for conscientious tax resistance and nonviolence civil disobedience. Can that provider block access to the WRL site on the grounds that its support for such law-breaking makes it an "unlawful" site? Who decides? And on what basis?

But Raw Story nabs the big one, the one that just slips by in a single phrase but makes all the difference:
That term, "reasonable network management," is defined as "a network management practice that is appropriate and tailored to achieving a legitimate network management function". Waxman's text goes on to explain that "appropriate and tailored practices to reduce or mitigate the effects of what it calls "traffic that is harmful to or unwanted by users" are permissible.

The catch: "Users" includes "premise operators, [...] the provider’s network, or the Internet".

Stated in plain language, under Waxman's proposal, traffic that is unwanted on a provider's network may still be subject to "management."
Stated in even plainer language, in Waxman's bill providers are "users" and in the case of wireless networks they are free "deprioritize" or even to block any content which they do not want. While the bill bans blocking "lawful applications that compete with the provider’s voice or video communications services," I'm really not worried about ads for T-Mobile not making it across Verizon's network; I sincerely doubt there will be a problem. I am, however, worried about sites like Verizon Sucks Ass and Google Sucks and other better- or lesser-known voices of whatever style or focus or seriousness that are for whatever reason unwelcome in the offices of C. S. Lewis's "quiet men with white collars and cut fingernails and smooth-shaven cheeks who do not need to raise their voice" being banished to some dark back alley of the internet.

Ultimately, as PC World columnist Ian Paul said back in August,
[t]he Google-Verizon proposal appears to make room for a two-tiered Internet: the public Internet we use today and a private one for premium services. That raises the question about what happens to the regular Internet in the long term? Would broadband providers be compelled to maintain and upgrade their regular Internet services? Could carriers cap regular Internet speeds at a certain level, and then force users over to the proposed private service if they wanted better broadband speeds? How does an open or so-called public Internet survive when corporations have financial incentives, such as private networks, to ignore it?
That is the future Henry Waxman has now endorsed, in fact for which he is pushing.

Did he ever did actually believe in net neutrality? I admit, I wonder, since a much better bill, the Internet Freedom and Preservation Act, has languished in the Energy and Commerce Committee - the committee Waxman chairs - for over year.

The fact remains, if he ever did believe in it either he doesn't now or he's been rooked by corporations that are prepared to pretty much accept the status quo that exists in the present for the sake of owning the future.

More and better Democrats, indeed.

Updated with a Footnote: I've learned since that when he presented his proposal, Waxman said that
if efforts to create bipartisan broadband legislation fail, the Federal Communications Commission should move broadband businesses under Title II of the Communications Act, a possibility phone and cable companies strongly oppose.

"If our efforts to find bipartisan consensus fail, the FCC should move forward under Title II. The bottom line is that we must protect the open Internet. If Congress can’t act, the FCC must," he said in a statement.
It appears, then, that Waxman is wielding the sword of pushing for regulation of broadband carriers as "common carriers" like telephone companies, and so subject to equal access rules, as a sort of weapon to pressure the corporations to get behind his bill. A "Hey, look, it could be worse" argument.

I'd like to be able to say that Waxman's repeated support for the principle of net neutrality mitigates some of the concern about his proposal, but it doesn't. The proposal still says what it says and either Waxman doesn't grasp the import of his own proposal or he has decided that it's sufficient to have a philosophical statement in favor of net neutrality even as actual control of the future of broadband is handed over to the corporate giants.

An Amusingly Revealing Footnote to the Footnote: It turns out that some GOPpers are feeling trapped between some of their big donors among the telcom industry (which likes some form of government regulation of the internet because it protects them against competitors while not damaging their positions) and their TP followers, who opposed to any sort of regulation whatsoever. Which means, true to their logic-less libertarian roots, the TPers think government is so eee-vuul that they actually want to have a handful of corporate behemoths dictating what can and can't be sent over the web, when, and how fast.

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