Thursday, May 19, 2011

Net Neutrality

Many of us who care about freedom on the internet care about particularly contentious policy issue: Network Neutrality. This issue seems to be coming to a head very quickly. I've finally collected some of my thoughts.

Net Neutrality entails legal protection of equality on the internet. It covers a range of policy proposals, few of which of become law so far. They aim to ensure that the internet remains a network of peers, free from any central control over which kinds of traffic it carries or limitation on which nodes are accessible. On the other side of the issue, several internet service providers (notably Comcast and AT&T) have claimed that their networks are suffering under the exploding demand for bandwidth. They must be allowed, they say, to prioritize some types of traffic--such as web browsing--over others, particularly P2P.

This issue arose around the year 2000, as the most common form of internet access switched from dial-up to newer models like DSL and cable. Under the old model, ISPs simply maintained local endpoints on the existing phone network. The barrier to entry was fairly low, and there were thousands of ISPs in the United States. Under the new model, ISPs build and lease new last-mile connections, often bundling internet access with other services such as cable television. The barrier to entry is vastly higher, and as a result large ISPs have local monopolies in many places. (In most of the US,
broadband internet access is at most a duopoly, between the local DSL provider and the local cable internet provider.)

I think that this trend is disturbing. ISPs have already started traffic-shaping, generally without informing customers. In at least one case, Comcast silently inserted RST packets to sabotage BitTorrent connections--preventing their customers from seeding (sharing files) to non-Comcast subscribers. They denied doing this even after a customer discovered the problem and posted about it in online forums, until the EFF ran a series of experiments and published an expose. In this and other ways, the internet's status as an open, egalitarian space largely immune to corporate and political boundaries is being threatened.

I think the cleanest solution would be to establish "common carrier" status for ISPs. Common carrier is a legal doctrine that gives shared infrastructure companies certain protections and responsibilities. They have immunity from libel, slander, copyright, and other laws with regard to the content they carry on their network. (The end-users, of course, remain liable.) In return, the common carrier is prohibited from discriminating against one type of content over another.

Establishing ISPs as common carriers would bring back one important aspect of the status quo during the dialup years. Phone companies were the original "common carriers"--so common carrier law, combined with the large number of ISPs to chose from, ensured that essentially every packet on the internet was treated equally. This is no longer the case. Making ISPs themselves the "common carriers" would fix this. ISPs, I would argue, are currently having their cake and eating it, too. They are already given a variety of implicit and explicit protections against liability for the content they carry. However, they are not being made to treat content equally.

As one user put it in a discussion on BitTorrent throttling,
“P2P applications can cripple a network, they’re like leaches. Just because you pay $49.99 for a 1.5-3.0mbps connection doesn’t mean your entitled to use whatever protocols you wish on your ISP’s network without them provisioning it to make the network experience good for all users involved.”

This attitude seems to be reflected in the ISPs' actions. I would hopefully be able to demonstrate to legislators that "internet access" has a clear meaning. ISPs do not sell "web service" or a "browsing experience". They sell internet access: the ability to send and receive IP packets. I would argue that customers are entitled to use whatever protocols they wish on top of IP, just as phone subscribers are entitled to speak in any language they wish with the person on the other end.

"Common carrier" has significant advantages over writing a new set of laws specifically for ISPs. It simplifies the legal situation and would make Net Neutrality much harder to impinge upon, once passed. It leaves less room for a compromised bill being passed under the guise of "net neutrality", without actually providing strong protection. Common carrier law has a large body of judicial precedent and therefore (hopefully) fewer loopholes.

Net neutrality can be divided into at least two separate goals: equality of content providers and equality of protocols. The first means that ISPs should not be allowed, for example, to make deals with individual companies to treat certain web services preferentially. The situation is complex, since companies like Netflix already rely on a limited form of preferential treatment called colocation--they pay companies like Comcast to set up servers in Comcast data centers all over America, instead of in a few centralized locations, so that the vast majority of their traffic never hits backbone links--it goes from a local "point of presence" directly to users' homes. Such practices are necessary and acceptable. However, restricting or artificially slowing access to individual websites should not be permitted.

Equality of protocols means that all protocols above Layer 2 (IP) shouldn't be controlled by ISPs. This does not strictly mean that traffic may not be prioritized. Latency sensitive apps such as Skype, for example, can use the Type of Service field in the IP header to request special treatment. The user's service contract will determine whether this field is honored. But using deep packet inspection to discriminate against types of traffic should not be allowed.

I'm optimistic that someday, the equality we enjoy on the internet today will mature. Instead of being a matter of convention and serendipity, freedom on the internet will be protected by law.

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