Centerfield

Network neutrality and the Wyden bill: when the cure is worse than the sickness

I feel compelled to comment on S.2360, Senator Wyden's proposed "remedy" to the network neutrality situation. Jon posted last month about the wider issues surrounding network neutrality; I don't necessarily endorse Jon's conclusions, but in this post, I want to suggest that regardless of whether or not one believes legislation is necessary to deal with this issue, the Wyden bill is not the way to do so. It should be defeated, no matter what one's view on network neutrality.

My company (which is certainly within the meaning of "network operator" as defined in the act; §7(a)) ("any person who owns, operates, controls, or resells and controls any facility that provides communications directly to a subscriber") provides, inter alia, internet access to a number of blocks of student apartments (what I'd call Halls of Residence, but y'all may call them what you will) and a handful of general-population apartments. We also furnish them with email addresses, FTP space, all the sort of stuff your average ISP provides.

We do not permit access to filesharing services; this is for several reasons, all of which are compelling, but primarily because (a) pre-empting filesharing reduces the number of federal subpoenas we recieve, and (b) (and more importantly) because of something far more boilerplate: bandwidth usage. Specifically, there is an access list which does not permit traffic on ports known to be used by common filesharing programs. Such programs are, without doubt, within the meaning of "application or service," either in its plain meaning or as defined within the bill (see §3(1)(a)) ("by which an end-user through software or a device engages in an exchange of data or information"). If the Wyden bill passes, we will be in violation of §4(a), which says we may not "interfere with, block, degrade, alter, modify, impair, or change any bits, content, application or service."

Moreover, for operational reasons, we discriminate between services. Providing internet access is inherently an exercise in managing the fair allocation of finite resources, in particular, bandwidth. The most equitable means to do so is that the average user, who needs very little, should not be disadvantaged because a few exceptional users want a great deal. Thus, the vetinary student trying to do research online should not have her task complicated or slowed down because the guys in the next apartment are downloading porn and two Chinese exchange students are playing "xbox 360" with their buddies back home. Thus, although our WAN links do not often - if ever - become saturated, we take the view that traffic should be prioritized in such manner that common services should take priority over uncommon services, and critical traffic should take priority over both. Consequentially, DNS traffic (53 TCP and UDP) is prioritized over all other traffic, and thereafter: 110, 80, 25, everything else. But under the Wyden bill, we may "not discriminate in favor of [ourselves] or any other person . . . [in] allocating bandwidth . . . [and] transmitting content or applications or services," §4(a)(2), and we must "provide non-discriminatory access and service to each subscriber," §4(a)(8). Are we really going to have to hope that the Federal courts will carve out an atextual "operational necessity" exception to enforcement of the bill?

Speaking of operational concerns, looking towards the future, as with most service providers, we had been planning to prioritize VOIP traffic, which naturally has more stringent QoS requirements than most applications. That, too, falls within the prohibition of this act -- a service provider must "treat all data traveling over or on communications in a non-discriminatory way," §4(a)(6) -- because it clearly discriminates in the allocation of bandwidth between various applications and services. If Senator Wyden is so opposed to the major telcos, why is he sponsoring legislation that may well strangle at birth the very technology to pose the greatest threat to said major telcos?

It's not all bad news, of course. We service providers are still allowed to "take reasonable and non-discriminatory measures to protect subscribers from adware, spyware, malware, viruses, spam, pornography, content deemed inappropriate for minors, or any other similarly nefarious application or service that harms the Internet experience of subscribers," just as long as our users "are informed of the application or service . . . [and] are given the opportunity to refuse or disable any such preventative application." §4(b). This is muddled terminology (that's a polite way to say that the legislation is badly drafted), but the most natural reading seems to be that service providers can block this parade of net nasties, as long as (a) subscribers know what's being blocked, (b) subscribers can "opt out" of the protections, and (c) the protections are content-neutral. Once you're done crying with laughter at the idea of concept of content-neutral spam filtration, pause to consider the serious ramifications of this language. We filter incoming email for spam and viruses; while our subscribers are aware (although one has to ask, what's the theshold question for whether a subscriber is aware? Does it suffice that when they first opened the account, they received an email telling them?), there is no way - feasible or otherwise - to exempt a user who wishes to opt out. Which puts us in a bad spot. Every company which provides spam filtering -- and I do mean every company, because the mere act of filtering spam qualifies a company as a network operator for the purposes of the act -- should now take stock: can you switch off your spam and virus filtering on a per user basis?

(I should add at this point that our spam filter whitelists emails from ourselves and from various internet outlets which we deem to be in common use - Amazon, Alibris, Ebay, etc.; there is no "good intentions" exception in the bill, and so we are technically "discriminating" in violation of the act).

Lastly, a few words about burden of proof are in order. Pursuant to §5, subscribers can blow the whistle on what they presume to be a violation of the bill to the FCC. Worse yet, per §5(e), "[i]f the Commission accepts the prima facie case of an aggrieved party under . . . a network operator shall bear the burden of proving that [either] no violation of section 4(a) occurred . . . [or that] such violation was a preserved authority described in section 4(b)."

Not only, then, are service providers asked to prove a negative, but the incalculable cost in lost productivity of meeting the burden of proof essentially falls onto service providers in any case that sounds halfway reasonable to the FCC. Of course, what sounds halfway reasonable to someone who understands that the internet is a complicated mesh of interlocking systems, all of which must work just right for any given user to access any given page, may be very different to someone whose idea of how the internet works is that "I click on the blue 'e' on my desktop and 'my' 'internet' 'page' comes up."

Yes, folks, every time one of your more tinfoil-hatted subscribers cannot get to the Democratic Underground site, you, the service provider - hereinafter the Ministry of Propaganda - may be reported to the FCC, and you will bear the incalculable costs of demonstrating that you were not, in fact, discriminating against particular content. Every DNS blip, routing issue - and frankly, just plain 'ol network slowness - will now become a potential threat to remaining in business, because any complaint that you fail to meet the burden of proof may be fined pursuant to 47 U.S.C. §501 ("a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both"). I'm not even sure how we'd prove the question of why their email from MorOn.org was caught in the spam filter, but I do know that it would involve far more time and effort than I have any particular inclination to spend.

* * *

The bill's principle failure, it seems to me, is that it fails to comprehend the difference between the long distance carriers that this law is really addressed to (backbone providers) and internet service providers (access providers). If AOL discriminates in terms of content, I am free to find another service provider who does not; but if AOL carries its traffic via Level Three, and L3 discriminates between traffic, I have no functional choice in that matter, because the company discriminating is beyond the reach of any meaningful choice that I can make.

Worse yet, the definitions of the Wyden bill are so absurdly overbroad that practically any entity becomes a service provider, any user becomes a subscriber, and any use of the computer becomes a service:

• An application or service is defined as anything "by which an end-user through software or a device engages in an exchange of data or information . . . [which is] conveyed over communications" §3(1). Translation: anything carried out using the internet, period.
• A subscriber is defined as "an end user of an application or service provided through communications; and [who] consumes or provides goods provided through such application or service." §3(8). Translation: anyone doing anything on the internet, period.
• And, as we have already seen, a service provider is "any [entity] who owns, operates, controls, or resells and controls any facility that provides communications directly to a subscriber," §3(8)(a), where "subscriber" is defined as we have seen above.

In sum, if Ron Wyden's aim is to do incalculable harm to the practical operation of ISPs which have not attained the brobdingnagian stature of the AOLs of this world, this bill could not have been better designed, for it will surely achieve that.

Thomas Brackett Reed warned that "one of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation”; that admonition should be taken to apply a fortiori in technical areas that lawmakers simply do not understand. Network neutrality is an important issue with good points made by both sides - but shooting the patient is not discovering a cure for cancer. Contra Reed, there may well be a legislative solution to network neutrality - but whatever the solution is, the Wyden bill isn't it.

Posted by Simon at June 5, 2006 01:52 PM