25 December 2010

A response to "A Guide to the Open Internet"

I've seen a number of people tweet the "A Guide to the Open Internet" (located at http://theopeninter.net/) argument for net neutrality by Michael Ciarlo.  His argument stems from his personal experiences (Time-Warner blocked his access to ESPN3) and I am clearly sympathetic to his circumstances.  While it's a nice site, I felt like there were some problems with the argument so I wanted to comment on them.

A few notes before I begin:

Just to be clear, I do not work for an ISP nor do I have no connection to any telecommunications companies or other companies that are impacted by net neutrality.  I am not shilling for anyone.  I am personally alarmed at the process by which the FCC has disregarded the will of Congress and the authority of the Circuit Court of Appeals for the DC Circuit.

Let me also state that I don't know Mr. Ciarlo nor is this intended to be any sort of attack on him personally.  I shouldn't even have to say this, but sometimes people perceive things differently so I wanted to be clear.  I am disputing claims in his argument, that is all.  When I refer to "you" I am not referring to Mr. Ciarlo personally or alone, I am referring to you, the reader.

Let's just start with the obvious--TheOpenInter.net is a simple-to-follow, and visually pleasing website which advocates for net neutrality in a graphical manner.  The site avoids complicated discussion and presents a pro-net neutrality argument in a way that not many could argue against.  But it is this avoidance of the complicated discussion where I have the problem.  Net neutrality is not as simple as Mr. Ciarlo would want it to be.  As TechCrunch said in their (otherwise-generally positive) article, "there’s a lot more complexity surrounding the issue..." Furthermore, I have problems with the content of his argument and it starts almost immediately:
Network neutrality is the idea that your cellular, cable, or phone internet connection should treat all websites and services the same. Big companies like AT&T, Verizon, and Comcast want to treat them differently so they can charge you more depending on what you use.
Big companies like AT&T, Verizon, and Comcast have a right to responsibly manage the traffic that traverses the portions of the Internet that they own (yes, that's right: most of the Internet is in fact privately owned).  For example, do you have FiOS?  Do you know who paid to run fiber to your house?  It wasn't the government--it was Verizon.  You're paying to use their service.  They have a right to reasonable management of traffic to ensure their customers are getting a good product.  If your use of some bandwidth-intensive product is preventing your neighbors from enjoying their Internet, don't you think your ISP has a right to do something about it?  Even better, if your neighbors are using some bandwidth-intensive product that is grinding your Internet experience to a halt, what do you think should be done?  Are you going to sit on your hands and be happy that your neighbors are blissfully protected by net neutrality?

And yes, big companies like AT&T, Verizon, and Comcast could in the future conceivably charge you more for different services, but this is already the case now.  If they want to do it, why haven't they?  Probably because when they do float these ideas (liked tiered pricing schemes for usage) they get shot down by consumers.  Sure, there are likely to be some continued ideas along these lines, but consumers tend to prevail.  And that amazing FCC net neutrality rule? It more or less exempted wireless carriers from the restrictions.
The Federal Communications Commission (FCC) is currently debating legislation to define limits for internet service providers (ISPs). The hope is that they will keep the internet open and prevent companies from discriminating against different kinds of websites and services.
The FCC is part of the Executive Branch of the government and therefore is charged with executing the laws, not writing them.  The FCC does not write or debate legislation, which is the sole role of Congress.  What the FCC does, though, is write rules and regulations that are properly authorized by Congressional legislation.  Likewise, the FCC cannot simply write rules or regulations that go beyond what has already been authorized by Congress.  I suspect that Mr. Ciarlo would willingly substitute the word "rule" or "regulation" in place of legislation, but in this case it is uniquely important because it makes a significant difference.  Simply writing that the FCC is debating a rule does not cure this paragraph from the huge omission that the FCC has no such authority.  If you truly support net neutrality, then you should oppose the FCC's current net neutrality rules and support legislation in Congress that actually authorizes the FCC to do so.  300+ member of Congress (many of whom actually do support net neutrality) have asked the FCC to forgo any action until Congress acts; yet the FCC forged ahead.
ISPs provide you internet access. You can use it as much as you want, for anything you want.
I won't get too far into technicalities here, but there are some limits on what you can do.  This is why you agree to Terms of Service and an Acceptable Use Policy, even if you don't read them (because seriously, who does?).  Regardless, I generally agree with this statement.
While they can limit your speeds, ISPs do it mostly to slow illegal downloads.
Comcast was accused of, and eventually admitted to slowing p2p traffic by sending RST packets.  They argued that this was an acceptable network management practice.  The FCC disagreed and tried to fine Comcast.  The Court of Appeals for the DC Circuit threw out the case because the FCC did not have the authority to regulate the Internet.  If you care at all about net neutrality, and regardless of what side of the debate you find yourself on, you owe it to yourself and those you are debating to read the Comcast decision because it is the foundation for everything else that has happened since.  But the larger point is that the Comcast incident is one of the very few such cases of where ISPs have been accused of interfering with traffic.
ISPs want to manage internet access and charge you depending on your usage.
Let's start with the obvious: if this is what ISPs want, why aren't they doing it already?  This is where the chart is just too good to be true.  Does anyone really think that an ISP is going to get away with charging separate package fees for sites like Netflix, Hulu, YouTube, etc.?  Yes?  You really believe that consumers won't be outraged?  Why aren't the ISPs doing it now?  Because right now they have every right to do it.
That means AT&T or Comcast could block a service like Google Maps and charge for their own.
Mr. Ciarlo has been spending too much time with Senator Al Franken, for this Google Maps example is right out of his alarmist playbook.  Again, does anyone really think that Comcast is going to say, "Sorry folks, no Google Maps...you'll have to use our brand new Comcast/NBC maps!"  Sure, right now they have the right to do this, but with most anything similar to this, it would be a terrible business decision.  It's doubly-funny because Senator Franken is now arguing that the rules the FCC passed on December 21 would still allow for this "discrimination" of traffic because it is riddled with exemptions.  So even Al Franken, one of the Senate's biggest proponents of net neutrality, is extremely unhappy with the FCC's net neutrality rule.

I recognize there is a sticky point.  I'm arguing for no regulation at all, while those who support net neutrality are arguing for government regulation.  But that's precisely my point; the Internet has evolved to the point today without government regulation, and I would prefer not to have the government deciding winners or losers.  If you want the government to regulate the Internet, and you have a well-founded argument, then so be it.  But the process by which this happens is even more important then the end result.  If Congress authorizes the FCC to regulate the Internet, and the FCC writes rules and regulations within that specific congressional authorization, then so be it.  But the current process is an end-run that ignores current law.
Get the word out and save the open internet.
Let's first define "the open Internet."  To save something, I presume we must know what it is exactly that we want to save, so what is "the open Internet?" Is that what the Internet is now?  Or what it was, five years ago? Ten?  Or what you want it to be?  I truly mean this in all sincerety.  If what we have now is "the open Internet" then net neutrality is changing the rules mid-game, not saving what we already have.  Decades of development without FCC regulation have given us what we have now.

Is the current Internet, as we have it right now, broken?  I would argue that it is not, and thus permitting government regulation is unnecessary.  If you are indeed arguing that it is broken, cite examples of how it is broken, not just ideas about what might happen in the future.  I've already cited Comcast's interference of p2p traffic on your behalf.  Even despite the Court of Appeals ruling in their favor, and as a result having no FCC regulations requiring them to do so, and despite having no other legal requirement to do so, Comcast agreed to stop interfering in such traffic.  On his "why I created this" page, Mr. Ciarlo cites the example of the Fascinate phone locked to the Bing search engine.  But the current FCC net neutrality rules largely exempt wireless carriers, so it is unlikely that even these rules could change this.  What are your other examples that the Internet is broken, now?  I recognize that Mr. Ciarlo's argument is to "depict a time in the future when ISPs control the Internet and all data is not downloaded equally" but don't the ISPs already control the Internet?  Shouldn't ceding government control of the Internet to the government be based upon factual data and not supposition about what might happen?

Does the FCC have the legal authority to do what they did on December 21st?  After reading Comcast, I think many people would agree that they do not.  The irony of net neutrality is that, to impose the so-called "open Internet", you must subject the Internet to government regulation.  Currently, as clarified by the Comcast case, the FCC does not currently have the authority to do so.  The net neutrality rules they passed on December 21st exceed their mandate and will be overturned by the courts.  If you truly want net neutrality, then you should support legislation in Congress that authorizes the FCC to regulate the Internet, because that's the proper way to do this.
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