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Invitation to Regulate

The vote to scuttle the open internet rules is an invitation to congress: regulate. While there will be litigation over the FCC’s disregard for public comment, including potential violations of the Administrative Procedures Act, it is clear that leaving the rules up to the FCC is insufficient.

Expect that the battle lines will be drawn in 2018. Democrats will overwhelmingly support regulation. Republicans will have their stand-outs, but will generally not.

The Democrats can now run on a bevy of related matters, like the need for affordable broadband, the utility of the internet (Mr. Pai seems to believe it’s all memes and streaming video), and the ongoing problem of regulatory capture and anti-competitive actions by major corporations. That’s piling on other unpopular legislative actions, including the bizarre tax bills and the failed, sadistic attempts to change healthcare.

Once again, Republicans have shown themselves unaware of the risk of their choices. At each turn, they set up another trap for themselves.

But for the modern American netizen, that’s still a ways off. We will see how swiftly the ISPs begin to abuse their powers. We will await the leaks that show they’ll ignore the transparency requirements or try to be as vague as possible in their filings. “Blocking traffic that interferes with traffic,” or some other such idiocy (like blocking access to their own transparency reporting pages).

The basic bad bet here was that net activism won’t translate into votes and that the ISPs won’t piss off enough people to make a difference at the polls. But with the momentum for the Democrats, even if both of those are true, it may not matter.

The Closing Web

Some thoughts on EME in Firefox and the FCC’s now-proposed rules for regulating ISPs.

Taking a break from discussing the FDA’s proposed deeming regulations to talk about the now-released FCC proposal for regulating ISPs and the announcement by Mozilla that they will ship EME (Encrypted Media Extensions).

EMEs in Fx

First, what will Firefox include? They will include the W3C’s EME standard for HTML5 video. This standard effectively says that an implementing browser includes a plug or a mount for DRM. The browser doesn’t have to include DRM directly (though it appears a browser vendor could ship it directly).

Think of it like a car, and because of car theft, a trade group passes a rule requiring members to include remote-controlled self-destruct mechanisms in their cars. Except they didn’t require the car makers to build-in the actual explosives. They just have to provide a place to put the explosives and the remote-detonation functionality to blow the car up if someone installs the explosives.

And then let’s say that all the fast food drive-thrus said you can’t buy our food unless you have the self-destruct system enabled. That’s you going to ACME Entertainment and streaming the movie, getting the popup that says, “please install this EME plugin.”

We’ve seen this before, with codecs. Mozilla resisted including H.264 because it’s a proprietary codec that isn’t available for all systems. But other major vendors paid for it and shipped it without blinking, and sites put videos out in H.264. Mozilla did what they felt they could, but eventually began relying on operating system support for H.264.

Mozilla is a large organization, risk averse. They do not want to see other browsers force them into a less influential position, potentially causing even more harm to the web. So they run the numbers, hold their nose, and compromise if they think it’s a bad path that may let them get to a better place to fight tomorrow. In other words, they see the risk of DRM entrenchment as less likely or less harmful than Firefox being left behind by users who increasingly watch video in a browser.

DRM serves no real purpose, and at-best represents a gris-gris for parts of the entertainment industry that do not innovate adequately. Valve Software and some other video game creators, are just starting to recognize the economic benefits of openness and artistic community. These are promising signs. As the lines blur of the lines between video games and film/television, it is expected that other industries will follow and that DRM will become rarer and rarer.

FCC’s NPRM: “Protecting and Promoting the Open Internet”

The actual proposal (FCC: PDF: 15 May 2014: Protecting and Promoting the Open Internet) only contains a few rules:

  • Transparency
  • No Blocking
  • No Commercially Unreasonable Practices

The rules that aren’t yet proposed have raised the public’s ire. The proposal requests comments on a variety of issues, taking a “we’ll make the rules later” approach. Early on in the proposal (p. 3) the FCC acknowledges two paths seem viable (sec. 706 and Title II) and they want comments on the best way forward.

Currently the FCC classifies ISPs as information services, and the court that struck down the previous rules said, obiter dictum, that they did not believe section 706 would allow for certain regulations unless the FCC reclassified ISPs. This is not a binding ruling, but should be taken as weight against merely trying to shoehorn non-common-carriers into regulations under section 706.

If you read the definitions of both “information services” and “telecommunications services” I think it’s clear which ISPs should be classified as. Despite the claim of ISPs that they will refrain from innovation if classified as common carriers, they should still be so classified.

If we need “fast lanes” they can be done through some alternate arrangement that is voluntary by the information service, rather than mandated by an ISP (similar to how you can have expedited shipping by a common carrier). Or the ISPs can negotiate for a new classification by statute that will include, e.g., mandatory progress and innovation, restrictions on operating as an ISP and line owner and media company simultaneously, etc.

Currently, the only meaningful way forward seems to be for the FCC to classify ISPs as telecommunication services subject to common carrier rules.

Growing the Net With or Without Neutrality

Not about network neutrality as much as the need to grow the Internet regardless.

I was going to write in favor of classifying telecoms as telecoms (i.e., making them common carriers). But I think it misses the point, which is: how do we as a society best ensure the natural and unfettered growth of the Internet?

I will mention the issue of Network Neutrality briefly. It is the concept that a telecom or Internet service provider (ISP) must provide equal “best-effort delivery” of all data going across its network. That it cannot and must not give special treatment based on private contracts with the endpoints.

But it appears that the argument ought be moot. Consider the total value of commerce taking place over the Internet. We ought to leverage that massive sum: a cursory search estimated $8 trillion USD globally in 2011. I am not particularly big on taxation, but a modest tax (or fee) from that could easily fund massive development of the network.

Content delivery is probably only a minute portion of the total revenue, with online sales and advertising being larger pieces. But regardless, the Internet is making a lot of money for a lot of industries, all of which can benefit from a faster, broader Internet.

Does Network Neutrality harm or help convince that investment? Does the oligopoly of telecoms in the USA help or hinder? Consider the best analog to the Internet: roads.

We do differentiate some road traffic. We let police vehicles and emergency vehicles ignore certain signals under certain circumstances. We also have carpool lanes and lanes for energy-efficient vehicles, to promote conservation of the resource. We have weigh stations for commercial traffic on major roadways to pay for higher upkeep. We also have some toll roads.

But the average person (who belongs to the car class; obviously the current, dominant transportation system has its own glaring problems, which I am ignoring here) can still get in their vehicle and cross the country without much hassle. Certainly without their car’s manufacturer or their hotel or anyone paying for the privilege.

That core system should be sanctified through law or regulation. The core ability to engage the network is fast becoming a recognized natural right.

But what about those other caveats of roads? Do they have a place on the Internet?

I think they have a place, if and only if we do enshrine neutrality into the basic system, and if and only if they are clearly differentiated and regulated. Moreover, the speed limits of physical roads do not apply to networks.

It would be absurd to fix the common path at some speed, or even to build it into law or regulation that could be neglected. The common speed should be growing as long as technology allows. At some point we will undoubtedly have no more need for the analog’s extras. That in 100 years time, could we still possibly need toll roads for network traffic? Doubtful.

No, the question we face is one of growth and economics, not of legacy. I believe if a Netflix or a Valve wants to pay to send their data to someone in excess of that person’s natural connection speed (the natural speed ought be regulated/protected from economically artificial tampering by ISPs), that’s perfectly reasonable so long as they have every right not to make that deal and still receive best-effort delivery.

In other words, if we can have enhancement-only partiality, strictly regulated, and possibly taxed, it may be acceptable.

The main caveat is the lack of regulatory agencies that have the chutzpah to actually prosecute malfeasance. Without that, the whole thing is a wash.