Crossing Lines
posted by Frank Pasquale
In cyberlaw, we are repeatedly reassured by leading companies that certain suspect actions just won’t happen because they don’t make economic sense. For example, opponents of net non-discrimination principles say that carriers have an economic incentive to maximize the value of that network, so they won’t discriminate against particular applications within it. But this assumption is now being challenged. . . . and we are seeing cases where a carrier may not merely discriminate against certain applications, but also conceal the fact that it is doing so:
Comcast is pretending to be part of online conversations in order to frustrate users who want to use particular online applications. This happens all the time in the name of “traffic shaping” — it’s the kind of thing that China does to interfere with internet use. What’s different and important about today’s story is that people have carefully experimented. We can now understand exactly what Comcast is doing.
More after the jump . . .
The AP is now reporting that Comcast “interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally.” Certainly a carrier has a right to manage traffic when congestion becomes a problem, but such management ought to be based on usage, not on applications. Moreover, Comcast appears to be trying to mask its traffic management methods:
Comcast’s technology kicks in, though not consistently, when one BitTorrent user attempts to share a complete file with another user. Each PC gets a message invisible to the user that looks like it comes from the other computer, telling it to stop communicating. But neither message originated from the other computer — it comes from Comcast. If it were a telephone conversation, it would be like the operator breaking into the conversation, telling each talker in the voice of the other: “Sorry, I have to hang up. Good bye.”
Matthew Elvey, a Comcast subscriber in the San Francisco area who has noticed BitTorrent uploads being stifled, acknowledged that the company has the right to manage its network, but disapproves of the method, saying it appears to be deceptive.
But don’t be surprised if Comcast says it has a right not merely to shape traffic, but to shape it secretly–I suspect it may characterize these blocking methods and the situations it deploys them in as trade secrets.
Though network congestion is the ostensible rationale for discrimination here, the founder of BitTorrent suspects that carriers may be engineering artificial scarcity:
Ashwin Navin . . . confirmed that it has noticed interference from Comcast, in addition to some Canadian Internet service providers. “They’re using sophisticated technology to degrade service, which probably costs them a lot of money. It would be better to see them use that money to improve service,” Navin said, noting that BitTorrent and other peer-to-peer applications are a major reason consumers sign up for broadband.
Navin suggests that it’s not in Comcast’s interests to disable apps like BitTorrent. But note that Comcast doesn’t just sell the pipe–it’s also selling content like cable TV. Just like Hollywood tried to use secondary liability laws to control the development of the VCR, broadband providers have tremendous incentive to dole out bandwidth (and applications) on their own terms. Who knows, maybe repeated frustration with YouTube or ABC-Online will drive people to buy more cable channels?
As we see the dark side of much-ballyhooed vertical integration of content and conduits, Susan Crawford has the following bottom line:
Like the Verizon/NARAL flap and the Pearl Jam escapade, here’s another story about currently-legal action, permitted under someone’s elaborately-walled Terms of Service, that interferes with basic communications. Comcast will say “we’re not blocking.” But they’re degrading, prioritizing, and filtering, without telling users. And they’re planning to do much more of this.
What’s the solution? Structural separation. You’re either a plain-vanilla transport company serving all comers, or you’re something else competing for our attention. But this mixture, this hybrid of apparent-communication plus editorial control, is unacceptable.
Larry Lessig’s warnings are looking more prophetic:
The environment of innovation on the original network will change according to the extent that cable becomes the primary mode of access to the Internet. Rather than a network that vests intelligence in the ends, the cable-dominated network will vest an increasing degree of intelligence within the network itself. And to the extent it does this, the network will increase the opportunity for strategic behavior in favor of some technologies and against others. An essential feature of neutrality at the code layer will have been compromised, reducing the opportunity for innovation worldwide.
October 23, 2007 at 12:58 pm
Posted in: Cyberlaw, Media Law
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Responses (3)
Bruce Boyden - October 23, 2007 at 2:56 pm
Frank, again on a net neutrality issue, I think you’re being insufficiently cautious here. First, when you say ISP “management ought to be based on usage, not on applications,” are you saying ISPs should have no ability to ban entire protocols? E.g., if I start an “e-mail only” ISP, “no web or FTP allowed,” that should be illegal?
Second, AP’s calling what Comcast is doing here “pretending to be part of online conversations” is disingenuous. It’s not a human conversation that is being intercepted, but a standard automated negotiation between computers. The AP article says: “If it were a telephone conversation, it would be like the operator breaking into the conversation, telling each talker in the voice of the other: ‘Sorry, I have to hang up. Good bye.’” Sure, and if it were a conversation with a Vogon, it would be like Vogon poetry. So what?
Third, beyond simply announcing that they restrict some services to manage bandwidth, what is the disclosure you would require? Isn’t there an obvious problem that if an ISP details everything it does to limit bandwidth hogs, those limitations will be easier to circumvent?
Fourth, you seem skeptical that Comcast is really attempting to limit the amount of bandwidth used for uploading here. But the article you link to complains: “Comcast’s interference affects all types of content, meaning that, for instance, an independent movie producer who wanted to distribute his work using BitTorrent and his Comcast connection could find that difficult or impossible — as would someone pirating music.” It looks like Comcast is going to get criticized either way on this one. Which is worse, in your view?
Fifth, I don’t buy the artificial scarcity point as made above. So Comcast is spending some money to go after Bittorrent uploaders. Maybe they also spend some of their money on advertising. If they spend $10 million more on advertising this year than last year, $10 million that could have gone into upgrading their service, does that create “artificial scarcity”?
Finally, I agree with Susan Crawford’s assessment that this incident is just like “the Verizon/NARAL flap and the Pearl Jam escapade,” in that all 3 appear to be overblown, as far as I can tell.
I should note that I’m no big fan of the current state of the U.S. broadband industry. But I don’t think that justifies extrapolating worst-case scenarios from catchy newspaper headlines when the details fail to support it.
Jack S. - October 23, 2007 at 5:11 pm
Would so much ink (or so many bits) be spilled if there was actually competition in the marketplace?
As for a few of Bruce’s points
Second : It’s a metaphor and quite apt what the AP says. Suppose the ISP says it’s going to block MSN messaging traffic, same difference, no? We’re not talking vogon, we’re speaking a natural language that just happens to be transmitted in bits. Comcast has effectively disabled a service, there’s no other way of putting it. Kinda like shutting your phone down. Sure you can hear, but you can’t respond.
Third : yeah, that would be kind of nice. If I want access to the internet in my town, I’m forced to pay $50-$100 to either the telephone monopoly or the cable monopoly. I would like to know which one of these monopolies are going to give me my money’s worth and which one is going to screw me because I use a service that they don’t like. If Comcast doesn’t like BitTorrent, which they know FULL WELL is popular then say it : “we don’t tolerate bit torrent” so the customer can go elsewhere.
Fourth : see point 3. Tell the customer so they can go elsewhere. Have you notice how many legitimate services are using BitTorrent now?
Fifth : do you really believe that Comcast’s motivation is real network scarcity and that they’re doing eveything in their power to make things better because of “fierce competition”? Note : I’m quote commissioner Tate of the FCC
Under antitrust law, market players with monopoly level share are treated by a different standard. They have to pay extra special attention to playing by the rules. Therefore, I do no believe that this is being blown out of proportion. Comcast who has HUGE market share needs to explain themselves and why they ARE playing by the rules.
And lets be clear about Verizon. Their official reason : “The decision to not allow text messaging on an important, though sensitive, public policy issue was incorrect, and we have fixed the process that led to this isolated incident,” Verizon spokesman Jeffrey Nelson, said in a statement. “Upon learning about this situation, senior Verizon Wireless executives immediately reviewed the decision and determined it was an incorrect interpretation of a dusty internal policy.”
yeah, that’s an easy excuse.
nedu - October 24, 2007 at 10:45 am
Several years ago, when I was considering residential broadband providers and technologies, I considered what the cable companies were offering. I concluded that hybrid-fiber coax (HFC) (i.e. cable-modem) technology, as it was then deployed, and as I predicted the technology to advance, should not be expected to meet my needs.
As a result, I’m paying something of premium for the residential broadband that I’m getting—compared to what the cable companies are advertising.
Most residential broadband consumers do not have the technical education that I do: Many believed that the cable companies were able to provide what their advertising claimed they could. Now, as the shortcomings of the technology become apparent, providers like Comcast are continuing with their deceptive marketing strategy, and attempting to deflect blame onto “bandwidth hogs.”
Recently, I read a technical paper reporting the results of simulations in HFC networks. The problem that this paper reported concerned contention at the media-access control (MAC) layer for upstream flows. While I don’t specialize in HFC systems, the paper, together with my background knowledge, was enough to make it plausible to me that, in this instance, Comcast is attempting to cope with a real contention problem.
Looking at a the larger picture, though, my provider is forced to compete against Comcast’s deceptive marketing. In an industry with network effects, that’s unfair to me.
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