I hope net neutrality is really dead this time

I hope net neutrality is really dead this time

Summary: Why would anyone assume that a government bureaucracy knows how best to manage the Internet? We're all very lucky that the Internet has not been "neutral" so far.

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As they have in the past, the U.S. Court of Appeals for the District of Columbia Circuit has found today that the FCC acted illegally when they imposed anti-discrimination rules on broadband Internet providers. In doing so, they have struck down the FCC's Open Internet rules, which were an attempt to solve a problem that doesn't exist: rampant discrimination by ISPs against various forms of content. (See the bottom of this article for an embedded version of the Court's decision.) Lucky for all of us, the network has not been neutral so far; it would have been far less useful and developed if it had been.

Sadly, a majority of the three judge panel told the FCC how they might be able to impose their regulations within the law. Where the matter goes from here is unclear; the Commission might take the Court up on their suggestion, Congress might change the law to foreclose such an option, or — and this would be the best outcome — nothing happens, and Net Neutrality is allowed to slip into the ash heap of history.

I must disagree with my esteemed colleague Steven J. Vaughan-Nichols who seems to think that letting the decision stand will change things in the real world. When he eulogizes Net Neutrality "1968 - 2014" he gives the impression that what we have been experiencing these last few decades is net neutrality. This may have been true a long time ago, like the early 90's, back when network management was primitive, but not since then. Just as traffic needs to be managed on a corporate network in order to provide the best and fairest performance for all, ISPs have to manage traffic.

One simple example of this is from the last time the DC Circuit Court shot down FCC Net Neutrality rules: Bittorrent users on their network were hogging all the locally-shared bandwidth, ruining the experience for most customers in that area. Without any other technical option at the time, Comcast temporarily blocked Bittorrent for those users at the protocol level. The Court said then, as it said today, that the FCC had no statutory authority to regulate network management as they did. Since then, Comcast has implemented more sophisticated methods of throttling users who consume too much bandwidth in an application-independent manner.

The Comcast example is one of a very few real-world examples of network management having a real impact on end-users. In fact, not only were Comcast's actions reasonable, they were the right thing to do and they were designed to affect only those causing the problem, with a benefit for all other users. Have ISPs ever actually blocked applications for self-serving ends? There's basically one example: Madison River Communications, which in 2005 was charged by the FCC with blocking VOIP traffic on its network to protect their own telephony services. The company signed a consent decree with the FCC not to do it anymore and paid a fine.

Just as NN advocates said back then, they say now that all hell will break loose. According to Harvey Anderson, Senior Vice President, Business and Legal Affairs for Mozilla:

    "The D.C. Circuit's decision is alarming for all Internet users. Thanks to a legal technicality, essential protections for user choice and online innovation are gone. Giving Internet service providers the legal ability to block any service they choose from reaching end users will undermine a once free and unbiased Internet. In order to promote openness, innovation, and opportunity on the Internet, Mozilla strongly encourages the FCC and Congress to act in all haste to correct this error."

The future sure sounds horrible! Only the government can save our freedom on the Internet. (Hmmm... Something sounds wrong about that...)

Let's assume Anderson's dystopian vision is true and ISPs can start discriminating willy-nilly. Why would they do that? There's virtually no history of them attempting to do it in the past. For many people there is only one ISP choice, but for many there are options. I'm in New Jersey and the large majority of the state has a choice of more than one broadband provider (in my case Verizon and Comcast).

Now in fact, as I said above, we haven't actually been living heretofore in a world of net neutrality. Rather, ISPs have been using some pretty aggressive and non-neutral techniques to provide the best performance for their users to access important services. Consider paid peering, also known as CDN or content distribution networks, most famously implemented by Akamai.

What do Akamai and other CDNs do? They work with ISPs to put connections from their networks directly into the ISP's points of presence (a CO or central office for a phone company, for example). In this way, providers on the CDN get closer, faster access to users and get to avoid potentially malicious traffic on the main circuits.

Content providers pay extra to get on the CDN and, therefore, to get better, faster access to end users. That's not neutral at all. But it is fair and it is good for users. Services like Netflix, even YouTube, would be unusable without CDNs. CDN isn't the only example of beneficial, "non-neutral" network management, but it's the best one because it's impossible to reconcile CDNs and NN principles. One result is that the FCC's pronouncements on paid peering are incoherent.

Back to the Comcast/Bittorrent example: On any ISP architecture there is an element of shared bandwidth. On some, like cable modem, there may be more than on others, but in any case the fact that users are sharing bandwidth means that it's the job of the ISP to manage the network traffic so as to give the best experience they can to all users. The FCC's "Open Internet" rules purport to allow reasonable network management, but the FCC's actions in the Comcast case show that they have an unreasonable definition of "reasonable."

For these and other reasons, I do hope that this latest appeal represents the last death throes of Net Neutrality, and that it is now dead and buried.

DC Net Neutrality ruling by jeff_roberts881

Topics: Networking, Government US

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148 comments
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  • When you start with the premise ...

    that The Internet is ONLY about making money, Net Neutrality doesn't seem to make sense. If you start with the premise that The Internet is about furthering ALL who use it, then Net Neutrality, at least to me, is favored over pure Capitalism. Needs to be a significant balance and it needs to lean in favor of The Internet's original mission as a way to connect THINGS (computers , people, information, etc...) for the betterment of us all.
    jkohut
    • Um, the way to make money

      In capitalism is to "further all those who use it." That's the awesome thing about capitalism. You have to serve your fellow man in order to make a buck. I understand our public education system has never taught you this truth, so I'll cut you some slack on not knowing it.
      baggins_z
      • Pure Capitalism is responsible for Wall Street and many other problems we

        have experience over the eons. Pure Capitalism is about private decision making. For you info, I do not want pure Socialism either. My comment above about "balance" means just that. a balance. I looked up Capitalism on the Webster's Dictionary site and did not find your quoted words at all. Some I am not sure where you learned your "further all who use it" quote, but I suspect it was a less than credible source.
        jkohut
        • Don't blame capitalism for any problems with the Internet

          We haven't had real capitalism for over a hundred years. What we have is a form of regulated corporatism with plenty of political corruption and bribery thrown in.
          PepperdotNet
          • Yes, let's get real capitalism back

            with 8 year olds working in the coal mines. People forget there was a reason for the rise of communism.
            kirovs
          • Communism!?!

            Yeah, I would rather my 8 year olds work in the shoes factories and clothes sweat shops like Communism China.
            georgeaaa17
          • Communist China

            Actually has a catalyst system when it comes to their economy.
            Michael Alan Goff
          • China has never practiced actual communism

            That's the biggest problem with communism. It is never put in actual practice because of people don't actually want to share everything equally.
            T1Oracle
          • Yes, because communism never exploited the masses...

            uh huh... yeah right.
            techadmin.cc
          • Unlike the Great Old Days

            of Never.
            DannyO_0x98
          • pepperdotnet

            Agreed
            tomkel
        • Wall Street....

          Does not follow capitalism. The banking problems were ALL caused by back-deals with congress-persons. Capitalism works, it has ever single time its allowed to do so, but the blasted politicians get in the way to make themselves (and their friends) rich and then blame the theory.
          ccs9623
          • ccs9623

            What you are observing true, however, true capitalism and libertarianism leads us to the corporate plutocracy we have today.

            In a free system where anything goes, it is only a matter of time before the most greedy evil ruthless people end up controlling the majority of the wealthy. They then proceed to set up corporations to hide behind, buy the politicians in order to control the government, and then set up regulations in order to protect their status quo.

            The government is going to end up controlling and regulating society no matter what happens. The only question is who will the government be serving? Will it serve the corporations (meaning the wealthy) or the common good (the majority of citizens)?
            tomkel
          • In this country, society IS the government.

            That is, until we decide voting isn't worth the hassle.
            Papa_Bill
          • The problem is...

            ...a lot of people *have* decided voting and activism aren't worth the hassle and a lot of the rest vote straight party line without thinking much about it.
            John L. Ries
          • Wall Street and Congress, huh...

            one hand washes the other, and we go down the drain.

            Capitalism is good for our economy, but unbridled capitalism is good for the wealthy only. Their profits can ONLY come from the pockets of us sorry, lazy, undeserving customers.
            Papa_Bill
        • Pure capitalism has not existed....

          in this country for decades. What happened on Wall Street was collusion between government and Wall Street. It's what happens when you have a government capable of picking winners and losers and revolving door regulators. what we have is more akin to some bastardized form of fascism than capitalism.
          johnnylumber
      • many way to skin a cat

        "In capitalism is to "further all those who use it." That's the awesome thing about capitalism. You have to serve your fellow man in order to make a buck" There are many models on how to make money in capitalism, providing a service for someone else is but one way. but its also possible to restrict your fellow man and make a profit, say by cornering the market and controlling supply and demand.
        Meansman
        • Capitalism

          "Cornering the market and controlling supply and demand" means controlling competition. Controlling competition means controlling the minds of businessmen and consumers, both current and future.

          If Capitalism allows for that, we're all doomed. Thankfully it doesn't. You should study Adam's Smith's "Wealth of Nations". The invisible hand is a very enlightening concept.

          Socialism, on the other hand...
          http://www.webzeest.com/articleimages/8f14e45fce_1387183081701adolf-hitler-01.jpg
          'nuff said
          Daniel Draper
          • An aside, if you please...

            Hitler's government was neither socialist nor communist...in fact it was ostensibly capitalist...then der Fuhrer made it strictly a dictatorship. So any comparison is like resistance...futile!!!
            Papa_Bill