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

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

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.

Diffserv: Can it coexist with neutrality?

One of the managers at AT&T recently blogged about (AT&T Public Policy Blog: The Danger of Dogma) an IETF working group’s RFCs regarding Diffserv, a traffic classification scheme, as evidence that neutrality is not a fundamental principle of the internet.  I’m pondering, in brief, whether Diffserv and neutrality can coexist, and if so, how.

Diffserv

Briefly, Diffserv adds a small tag to each datagram in order to classify its type of service.  The default is the standard best-effort, and other options are for various priorities in order to help guarantee that specific traffic will reach its destination in a useful manner.  The scheme depends on intermediaries respecting the tag on each datagram, and being able to actually carry out the request according to its meaning.  The old scheme, best-effort, simply means that each intermediary treats each datagram the same, and tries to faithfully route it on toward its destination.

A Mixed Bag

So, if you have a bag of marbles, and they are all the same size, then reaching in, you will be equally likely to grab any of them.  It could be said they have neutral weight with respect to one another.  The Diffserv bag contains many marbles that are equal, but some are bigger, and some are sticky.  You are more likely to pull some of those marbles out.  That much is obvious, and there will be an inherent bias there.  Is that necessarily a problem?

I am willing to admit it is not necessarily a problem.  If you have upgraded your marble scoop to be faster (ie, you can guarantee the same treatment as always to the standard marbles), then there’s really nothing wrong with the bigger marbles being mixed in.

The Rub.

We are talking about the data services industry.  They are not known for their dependability, and even if they swore on a stack of IETF STD docs that their new marble scoop would not only guarantee the old level of treatment to standard marbles, but would actually do better, I would not believe them out of hand.  That much is clear.

So, we have a question to ask them.  What, exactly, will be the technical measure that will guarantee the continued progress of the network, and how will you be deterred from simply keeping the infrastructure static while wink-nudging customers into adding stickum to their datagrams?  That’s what it will take to make such a change acceptable to those of us that aren’t in your pockets: undeniable proof, based on well established standards of evidence that are employed in this little thing called science.

What Proof Could Look Like

Proof that they would not discriminate against best-effort packets would have to come in the form of infrastructure guarantees.  That is, they would have to make public commitments to their infrastructure development.  Furthermore, random, public audits showing consistent improvement in the delivery of best-effort datagrams would be required by law to show a lack of bias.

The penalties for cheating or non-participation in the audits would have to be very stiff and actually enforced.  As the government doesn’t enforce the law for extraction of resources from ecologically sensitive environments, Diffserv doesn’t look very promising.

Google Policy Blog: Myth v. Myth

Google’s public policy blog has posted a response to criticisms of their joint proposal with Verizon on Network Neutrality: Facts about our network neutrality policy proposal.  It takes a heavy view of criticisms, constructing Myth strawmen (or at least glossing over the fine distinctions made by critics).

Here are their “facts:”

  1. Something is better than nothing.  (The second fact is a repeat of this.)
  2. Wireless is different than wired connectivity.
  3. Distinguished services are sufficiently defined to preclude network bias scenarios.
  4. (This and the next are kind of silly to include, but for completeness:) A proposal for legislative action is not a business deal between Verizon and Google.
  5. A proposal for legislative action is not binding on Congress, they are still free to make it worse.

I’m going to skip those last two, for the reasons I parenthesized.  As to the rest:

Something does not mean something good

It’s straightforward to recognize that inadequate protections that merely provide coverage for providers to do as they wish will be a horrible failure.  And that’s what’s being proposed by Verizon and Google.  It’s legless and mealymouthed, and it could actually be more harmful than that if it turns out as other flawed systems such as the US immigration policy.

Their proposal, if implemented, simply would not have teeth.  Codified, it would act as an ipecac, allowing a brief sojourn from network bias only to vomit the bias back out, soiling the internet.  They note that the non-discrimination provision might just evaporate, and without that, any such legislation would be a fraud.

Why I say IPN

Wireless or wired, Internet Protocol is Internet Protocol.  Google will continue to fail to admit to that, and as such they want to pretend that the open-access rules they were able to get bundled with wireless spectrum auctions count for something.  Those rules have yet to bear any results for consumers who, despite the “more than just two providers to choose from,” the wireless industry remains an oligopoly where consumers lack real choice or differentiation of service.

You can expect the de facto price fixing and market inefficiencies to stand firm so long as a chunk of plastic (ie, the hardware, which is more of a status symbol than anything) remains their main selling point.  Until wireless becomes a dumb service where they must compete on price and performance in a brightly lit market, we will continue to suffer from another rotted industry.

And if wireless carriers can mix network bias on top of their offensive wares, that will only cement the industry to remain corrupt for the long haul (at least until wireless mesh is feasible).

Secure banking by (insert ticker symbol)

Among the differentiated services Google envisions is “a more secure banking service.”  Yes.  Let’s have your service provider collude with your bank, and charge you a special fee for the privilege of security. Let’s see you change your bank and ISP at the same time.  Double the bureaucracy, and imagine all of the termination fees!  Someone’s wet dream, to be certain.

Banking on the internet does need to become more mature and more secure.  But it still needs to remain on the internet because commerce is an essential function of peoples’ liberty.  Engaging in open, fair trade is absolutely necessary.  This is among the ideas in any well-constructed argument for the right to internet access.

The commercial forces that have persisted for over a century have an interest in keeping us tied to them, but the internet allows those chains to be torn off, melted down, and sold to the highest bidder.  And yet here comes Google proclaiming we should entrench them further.  Sigh.

So that’s out, but what about their other suggestions?  The other suggestions suffer the same flaw: any service that could be provided with a biased agreement with an ISP could be equally provided by another company with neutrality.  That’s what regulation in a free market is: the removal of barriers to market entry that prevent competition.  That’s why we have anti-trust laws, and it’s why no one should take the Verizon/Google proposal seriously, as they fail to recognize that fact repeatedly in that public document.

Okay, enough of that muck.  The bottom line is this: no institution shall rule the internet.

If the internet remains useful at all, it remains open.  If they want to destroy it, they can, but they cannot rule it.  Ruling it would destroy it, and it would take all of their gold with it.