Larisa Mann

April 29, 2008

is a new monthly column covering artistic rights, digital media and other open source issues by regular Wiretap contributor Larisa Mann

Last week the Federal Communication Commission held a hearing at Stanford University on how the government should regulate internet traffic. Folks who heard about it may have thought, “Wait a minute, didn’t they just have a hearing on this a few weeks before?” They did. A second hearing was scheduled after major internet service provider Comcast hired people to fill seats at the original hearing, preventing other interested parties from attending. After the scandal was revealed (including photos of Comcast’s hired decoys sleeping) the FCC set up a second hearing.

What was so important about an FCC hearing that Comcast felt compelled to block the public from attending? Funnily enough, Comcast is a part of the story.

Last year, Associated Press conducted file-sharing tests and reported that Comcast was filtering internet traffic. Since then, several other organizations have tested Comcast’s internet service and all agree that certain “packets” of information are being blocked or slowed by Comcast. Similar testing has revealed that other Internet Service Providers (ISPs) also filter content — favoring certain internet users over others.

Stanford professor Lawrence Lessig and Free Press’ Ben Scott wrote in an SF Chronicle Op-Ed that by secretly blocking BitTorrent, a file-sharing technology powerful enough to bring you HDTV content, Comcast was using its control over the network to stifle a competitor to their cable TV service. It’s a curious move because, as Lessig and Scott pointed out, BitTorrent is “used by everyone from the Hollywood studios to NASA.”

Different Prices For Different Speeds

This is a big deal, because the internet’s future is connected to the telephone and telecommunications networks it runs on. The public relies on these networks for communication and the U.S. government has traditionally regulated their use. Specifically, regulation made it illegal for companies providing these services to discriminate against users. In other words, your phone call has to be as clear as my phone call.

Up until a few years ago, this was true for the internet as well — it was illegal for ISPs to selectively block internet traffic. But in 2005, after a landmark court case, and much lobbying by the telecommunications industry (a.k.a. “telcos” — TimeWarner, AT&T, Comcast etc.), the FCC reclassified internet service as “information” rather than “communication” services.

While the change seems like mere word-tweaking, here’s the rub: communication services are considered “common carriers” that are expected to serve the public and are required by law to transmit all legal content to all users equally. “Information services” are not considered public services, and do not face those requirement.

What this boils down to is that some content moves slower than other on networks that employ those sneaky information packet filters. If they get their way, all the major ISPs want to be able to charge for faster service.

For example, movie or record companies that sign up with filtered ISPs can have their content downloaded faster than those who do not. Say you want to download music from an indie musician or netlabel that lacks the same bargaining power as a corporate entity like SonyUniversal, your download might creep along, or even be interrupted, while corporate-supported content would flow like water.

Furthermore, certain internet applications used on a filtered network may work fast, but others much slower, even if the slow ap is more important to the user. All this filtering is a slippery slope and gives more power to private corporations with less public accountability. For instance, ISPs might choose to restrict content in all kinds of ways — remember AT&T filtering “political” text messages last year?

Second Class Net Access For The Poor?

Hundreds attended the second FCC hearing, but this time there was plenty of room because the major telecommunications companies didn’t bother to come at all. None of the panel’s featured experts defended Comcast, although some argued for some kind of “content management” from ISPs. Instead, panelists spoke about the importance for equal access, democracy and innovation. Strikingly, all of the statements by members of the public were in favor of an open internet. So what do net neutrality opponents want?

The main argument for content discrimination is to allow ISPs take open or “free” bandwidth and use it for premium services at a premium price. However, I have yet to hear an argument about how this system would serve the public interest. Is this a trickle down theory for web services? Does HDTV for people who pay more somehow help those of us with less money? What about the fact that the internet is also about content: communication and culture — how does easier access to communication and culture for the wealthy help the poor?

People who don’t have bargaining power — folks with no money, grass-roots organizations, and non-profits — should be especially concerned. All of these groups have benefited enormously from a neutral internet, which allowed them an equal platform to reach as many people as a larger organization. That’s why the FCC was greeted by groups from the Christian Coalition to the Raging Grannies who said they feared their communities could be harmed by a lack of access. Similarly, Colorofchange.org’s James Rucker argued recently that without net neutrality, his organization wouldn’t be as effective.

Seeing Through Filters

Some tech activist groups are arguing that we should demand transparency. We should require companies to reveal how and what information, files or applications they filter. But many stop there, and argue that consumers can choose between companies that provide filtered or unfiltered internet traffic. In this case, transparency is helpful but not likely to be enough unless the public has sufficient information to make an informed choice.

What’s more likely to happen under a ‘transparency mandate’ would be that upon signing up for an internet service, you’d receive 25 pages of legal jargon to thumb through, or an endlessly scrolling End User License Agreement with an “I Agree” button at the bottom. Beyond that, it’s hard to know what’s a fair deal for internet use if you don’t know in advance what competing services are available. In order to make an informed decision, you’d want to know what content or applications the ISP is filtering, how it’s filtered and how that might affect your uses.

Lastly, how much choice we would actually have? Some parts of the country have only one ISP and many others just two. Nearly all the telcos have mentioned they plan to filter content, so I’m not sure whether the consumers at the bottom end (the people with the least money and most need for access) will ever be seen as a more profitable market by ISPs than catering to the powerful.

We can’t trust the telecommunications companies to make the decision for us. It’s up to us to lobby for the kind of action we want from the FCC, and from our representatives in Congress, although if they buckled over allowing the RIAA to dictate education policy, will they stand up to RIAA over the internet itself? Overall, trusting corporations to decide how much free speech, innovation and community organizing the network will allow is a scary prospect. So…

Get involved!

The Electronic Frontier Foundation (EFF) invites you to see if your ISP network is secretly filtering traffic with their Test Your ISP project.

Find out more information at The Open Internet Coalition

Learn more about net neutrality at Save The Internet

Research the connections between net neutrality and a strong educational at Educause

Read an example of net neutrality legislation: H.R.5353: Internet Freedom Preservation Act of 2008

Larisa Mann writes about technology, media and law for WireTap, studies Jurisprudence and Social Policy at U.C. Berkeley and djs under the name Ripley. She is a resident DJ at Surya Dub, San Francisco, and collaborates with the Riddim Method blog-DJ-academic crew, Havocsound sound system, and various other cross-fertilizing organisms in the Bay Area and worldwide.