Posts Tagged ‘Net Neutrality’

Filtering and Sniffing after FCC v. Comcast

The topic du jour is definitely the DC Circuit’s decision in FCC v. Comcast – and what it will mean for net neutrality, and the FCC’s plan to regulate broadband access and consumer protections on the Internet. The decision – which states that the FCC does not have the authority under current law to regulate how ISPs police traffic on their networks – will most certainly impact the FCC’s implementation of its recently announced broadband plan.  Already, the agency has decided not to pursue certain cybersecurity, privacy and consumer protection policies in the wake of yesterday’s decision.

The DC Circuit crafted a careful and narrow decision, which will probably survive appeal (if indeed the FCC chooses to take that route).  The ruling focuses predominantly on the question of whether the FCC had explicit or implicit jurisdiction to regulate Comcast.  It leaves open however, the question of when and how ISPs can use filtering technologies to detect content.

All ISPs employ filtering technologies to some degree.  These technologies filter or “sniff” data packets while they are en route to their final destination.  The packets usually consist of two parts: control information and user data (also known as the payload). Shallow packet inspection involves examination of the control data – to allow an ISP to route content to the right server for example.  A deeper form of packet inspection allows the ISP to check for viruses and other malware that might be attached or embedded in content.  But it’s deep packet inspection that concerns most privacy advocates.  This is a more intense process that allows the ISP to literally peer in and scan the payload portion of the packet – to serve ads, or track user behavior.  The NSA uses the technology in its terrorism surveillance efforts. Certain governments –such as China – use deep packet inspection to censor content.

The FCC complaint which led to yesterday’s decision was filed against Comcast by Free Press, Public Knowledge, and several other advocacy groups and academics.  It suggested that the company was using some sort of deeper detection technology to “throttle” consumers’ use of P2P applications like BitTorrent. Comcast defended its actions, stating that it had a right to slow access in instances when network resources are scarce, because applications like BitTorrent consume large amounts of bandwidth.  In their FCC petition, the Free Press / Public Knowledge coalition disagreed, stating that Comcast had violated FCC policy which entitles consumers to “access lawful Internet content… and run applications and user services of their choice.”

The FCC investigated the matter and sought public comment.  Its investigation showed that Comcast was restricting user downloads of large files 24/7 – even when network resources were not scarce.  There was no suggestion by the FCC that Comcast used deep packet inspection technology to restrict downloads – although some have noted the company’s relationship with Sandvine, a company specializing in “network policy control solutions.”

After concluding its investigation, the FCC issued an Order, stating that it had the jurisdiction to regulate Comcast’s network management practices.  Furthermore, the agency decided to resolve the issue through adjudication – and not through the notice and comment cycle of typical FCC rulemaking.  In his press release announcing the Order, then FCC Chairman Kevin Martin analogized the situation to the US Postal Service opening your mail and then deciding, based on the contents contained therein, that it was either going to delay sending your mail or not send it altogether.

Comcast challenged the Order successfully in District Court; the FCC appealed, resulting in yesterday’s decision.  Where does the agency go from here? FCC Chairman Genachowski has stated that the agency will find other legal authority to pursue its stated goals if it loses its case against Comcast.  With a precedent like yesterday’s decision on the books, the agency will most certainly need Congress to pass a law giving it that explicit authority.  Enabling legislation of this type could take years – particularly given the special interests involved in this particular debate.  In the meantime, perhaps the FCC should think about reversing its 2002 decision deregulating broadband – a suggestion made by Public Knowledge’s Gigi Sohn on the PBS News Hour earlier this evening.

Until these issues are resolved, the legality of using filtering or sniffing technologies to block or slow down questionably large files on networks remains unclear. Comcast, in its muted response to the DC Circuit decision, indicates that it intends to keep working with the FCC to “…preserve a vibrant and open Internet.”  Will this intention change if its merger with NBC Universal is approved?  Would the merged entity employ such techniques to ensure that its own content is not being downloaded illegally?  Active network management can rob an ISP of its safe harbor for copyright infringement under the DMCA – but what happens if the network provider and the copyright owner are one and the same?

This case started with consumer complaints.  Yet the court’s decision does not provide any guidance for consumers who believe that they are being denied efficient broadband access due to their web surfing appetites. Professor Paul Ohm of the University of Colorado has an interesting approach – in this delightful article on net neutrality and privacy.  In it, he suggests that consumers look to the ECPA to address concerns with ISP discrimination against large file downloads.  ECPA of course, is the focus of its own reform effort – the move to secure digital due process.  Many of the same companies that support ECPA reform also support net neutrality.  Perhaps the move to reform ECPA will provide a way to obtain some legal guidance on how and when packet sniffing technologies can be used by ISPs to filter content.  But even with such clarity, the question of which agency should regulate the Internet – FCC, FTC or even the Department Commerce – will remain open.

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Do They or Don’t They?

January 19, 2010 1 comment

The FCC will temporarily break from the thorny issue of net neutrality as it hosts a staff workshop entitled “Consumers, Transparency & the Internet” later today.  Net neutrality of course was the tech issue du jour last week with the FCC squarely in the spotlight.   For the agency, the issue boils down to non-discriminatory network management practices – requiring that broadband operators treat all content similarly, whether it’s a text only email or a 2.5 gig HD movie file.  And while the issue remains “sexy” with policy-heads, it’s fast becoming clear that net neutrality is just a policy hook; what the FCC really cares about is prescribing rules to ensure access to the wired and wireless Internet  – using the same statutory authority that it already has to regulate telecommunication services.

So far, not so good.  Earlier this month, the FCC suffered a major setback when a federal appeals court appeared to challenge the agency’s authority to regulate net neutrality during oral arguments (with a final decision yet to be issued).  The case involves a 2008 FCC order that forbids Comcast from selectively targeting and interfering with customers who use peer-to-peer (“P2P”) technologies such as BitTorrent.  On appeal, Comcast argued that the order was based on an unenforceable FCC policy position (with no notice or indication of what conduct was permissible under such a policy).  Judge Randolph, one of the 3 appellate judges asked simply: “What independent authority did the Commission have to regulate the Internet?”

Fueling this debate (do they or don’t they) is the deluge of comments from stakeholders in response to an initial FCC comment deadline on the issue.  Net neutrality has resulted in some strange bedfellows; we now have the Electronic Frontier Foundation (whose evidence was instrumental to the FCC’s initial order against Comcast), Google and Verizon all arguing that the FCC should not use telecommunications law to regulate the Internet (point no. 6 in Google-Verizon joint comments).

The FCC’s aggressive moves to assert jurisdiction over broadband access are a marked change from its stance in previous years e.g. the FCC’s Pulver decision finding that a dialup service didn’t fit its definition of “telecommunication or telecommunications service.  Of course, dial-up is a very different product from broadband and we want our federal agencies to be progressive.  But should broadband access –including access through the wireless web – be regulated just like telephone service?  Is the FCC regulatory model of notice, rule-making, a comment period (that can last anywhere from 30 to 90 days) and an appealable order really the way we want to effect meaningful and timely change in how broadband is deployed and adopted?

Two other points to consider:

1. What if the FCC lacks statutory authority and looks to Congress for enabling legislation? If the appeals court in FCC v. Comcast finds that the agency lacks the authority to regulate net neutrality, then the FCC will either have to undertake a “major reassessment of its policy framework” or require that Congress act (according to Colin Crowell, senior adviser to FCC Chairman Julius Genachowski).  The last time Congress acted on a major Internet policy issue, we were left with the DMCA.  In retrospect many, including DMCA architect Bruce Lehman, agree that the “notice and takedown” provisions of the DMCA have done little to preserve the rights of content creators. Should we now trust Congress to create a comprehensive regulatory system that will ensure access while preserving incentives for further investment in broadband technologies?

2. Is there a strong case for broadband access regulation? Certainly consumer complaints are a driving factor – but it’s unclear whether the complaints stem from access or price.  On the other hand, broadband operators have invested over $100 billion in broadband infrastructure over the last decade, building the fat pipes that spurred the growth of the web into the entertainment medium it is today. There simply would be no YouTube if we still lived in a world of dial-up.  An AT&T policy brief points out that in 1999 there were 3 million broadband connections (compared to 382 million connections in 2008).  Would we have had this kind of growth if broadband access was regulated?  And what similarities can we see that merit regulating broadband under the same regulatory scheme as a telecommunications service?

As one observer commented during the end of the recent FCC-Comcast appeals court hearing, “see you in a couple years.”  This issue won’t be decided tomorrow.  But in the meantime, the FCC has attempted to reach out and encourage comment on broadband access issues.  So in that spirit, I am cross-posting this entry on the FCC’s Open Internet website.  If you feel strongly (either way) on this issue, I’d encourage you to do the same.

What Does an Open Internet Look Like? The FCC Wants to Hear from You.

September 22, 2009 Leave a comment

Today is One Web Day, and many of us are thinking about yesterday’s comments by FCC Chairman Julius Genachowski, and his agency’s role in a new regulatory framework for delivery of content and services on the web.  His speech was significant because it showed that the Obama Administration views net neutrality as something much more than an ongoing policy war between content owners and telecom companies.  It’s about preserving the ability to innovate, grow successful businesses and maintain the free flow of information – not just on the web, but across all data connections to the web.  And, as Chairman Genachowski’s comments illustrate, the Administration sees an open Internet as a key part of this puzzle.

But how do you define openness on the Internet and across the multiplicity of devices that connect to it? It can’t just be about technical standards or equal access.  It must also be about technology itself – innovations that propel us to the next stage of technological evolution.  Does open mean equal access for all – without rewarding the creator for his efforts?  If so, how do we maintain the incentives to create such technology in the first place?

To assist in answering this truly mammoth question, the FCC is harnessing the power of the Internet itself – and inviting all of us to join the discussion. is a place to air views and engage with others on what an open Internet should look like. I’m sure the process will be long, messy and controversial – as the democratic process often is.   But the debate will give us crucial, much needed information about what users and stakeholders expect an open Internet to look like.

Already, the FCC’s efforts are being opposed.  A few hours after Chairman Genachowski’s remarks, a group of Republican Senators led by Senator Kay Bailey Hutchinson (TX) announced that they were introducing legislation to deny FCC funding for the implementation or promulgation of “internet neutrality or network management principles… or any rules related to such principles”  – because such regulation would harm the innovation that we currently see on the Internet.

I have to admit, the Senators’ press release was confusing.  Because while it voiced concern about “significant regulatory intervention,” it also defines net neutrality as:

…”policies that promote the Internet as an open platform for innovation and economic growth, while discouraging intentional discrimination against particular content or application.”