shouting loudly

Retraction: Net Neutrality Probably Stops Comcast

In my last report on this story, I put little thought into a minilink to an article by CNet’s Anne Broache, which frets that proposed net neutrality bills probably would not prevent Comcast’s ongoing peer-to-peer blockade. I no longer agree; I think even the weaker of the two bills on this count, if properly enforced (big caveat), would stand a good chance to stop these shenanigans.

This further investigation was sparked when I learned a good deal more from this awesome EFF article about the Comcast affair. This looks like a tight case: Comcast is almost completely obstructing Gnutella and BitTorrent traffic, and when confronted with effects on other programs (specifically, Lotus Notes and Windows Remote Desktop) has changed their algorithms to let that traffic through.

Thus inspired, I re-read the bill now in the Senate, Byron Dorgan and Olympia Snowe’s S. 215. I also re-examined Ed Markey’s bill from last year. Having done so, I’ve changed my mind: I think the plain text of the Senate bill and any reasonable reading of the House bill (pending FCC interpretation) makes it pretty hard for Comcast to continue blocking specific programs.

I start with the Senate bill which, unlike Markey’s proposal, has already been re-introduced in this Congress. Section 12(a) states, “With respect to any broadband service offered to the public, each broadband service provider shall (1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet.”

This seems straightforward: BitTorrent and Gnutella have legal uses, thus Comcast would be prohibited from impairing or even degrading their subscribers’ uses of these programs. They could slow down the traffic to and from their heaviest users; EFF points out that they’re already doing this. But they couldn’t block specific programs just because some of their users are bandwidth hogs and some of their content is illegal. (A large share of HTTP is illegal, too, but Firefox is both legal and unencumbered.)

As Broache points out, the bill does allow an exemption for network management, as does Ed Markey’s House bill from last session (pdf) and his new bill expected soon in this session. The question is whether this exemption is big enough to allow Comcast’s new Berlin Wall impression to stand.

Broache and the experts she cites (including the very awesome Harold Feld of the Media Access Project) express concern that the Markey version in particular leaves a big enough gap to allow some potential for such a p2p blockade to stand. Let’s go to the tape.

In Section 4(b), we find:

EXCEPTIONS.—Nothing in this section shall prohibit a broadband network provider from implementing reasonable and nondiscriminatory measures to (1) manage the functioning of its network, on a systemwide basis, provided that any such management function does not result in discrimination between content, applications, or services offered by the provider and unaffiliated providers.

This is flawed and open to interpretation. If the period comes after “services” the exemption is airtight. You can manage bits however you want, but don’t pick and choose winners from losers. As it stands, though, I still think Comcast is almost without a leg to stand on.

First, Comcast is definitely in a business that competes with BitTorrent–namely, the cable television business. BT is largely a means of acquiring video; at least in terms of total bandwidth traffic (important when evaluating the rhetoric of network management), video is surely the lion’s share of BT usage.

Second, Comcast’s current efforts are neither reasonable nor nondiscriminatory. They’re effectively blocking all users from seeding any files regardless of current network congestion or usage patterns, which is unreasonable when they could provide much better overall traffic management by adjusting it to reflect congestion and each user’s bandwidth greed. (See the EFF link above.) And they’re blocking some bidirectional filesharing programs (BT, Gnutella) but not others (LotusNotes), which is clearly discriminatory.

Markey’s 2006 version is indeed not as tight as the Dorgan-Snowe version in the Senate. Dorgan’s network management exception requires that all decisions not be inconsistent with the mandated nondiscrimination provisions, including the requirement that the provider not pick and choose winners among applications and content. This is an important distinction. Under Dorgan, network management must be done without resorting to picking off specific applications. Under Markey, though, it simply must be “reasonable and nondiscriminatory,” which probably means something different to Michael Copps than Michael Powell.

Two more points are worth mentioning. First, any regulation is surely a substantial disincentive for Comcast to try something so boldly against specific applications. The marginal value of choosing this over choosing more sensible (and cost effective) traffic management is greatly diminished in the face of even a potential drawn-out, multi-venue legal proceeding. Thus, even if the bill does not force the FCC’s hand here, Comcast would never know how it would play out, especially in light of massive political pressure, so they would pick something safer, which means less discriminatory.

Second, both bills require providers to disclose all limitations on broadband networks. Comcast won’t want to publicly admit that they’re doing this; they’ve dragged their feet on doing so before finally chalking it up to “network management”. If they had to disclose it, this would dissuade them from doing it in the first place.

Of course, they could still do it and try to hide it, but they would surely realize this makes any necessary FCC proceeding even more likely to come out against them. They’d have a much harder time explaining it as mere network management if they were hiding it from their customers.

Either Markey’s or Dorgan and Snowe’s bill probably does the job, but the Senate version is the better of the two.