I fight authority, Authority always wins

I been doing it since I was a young kid

I come out grinnin’

I fight authority, Authority always wins

– John Cougar Mellencamp, “Authority Song”

Our friend and strong Net neutrality proponent Harold Feld is out with this ringing endorsement of the FCC’s existing legal authority to protect consumers’ online rights. Good for him, though we’d add that we’ve been making much the same “existing protections” argument for two years. (See here, here and especially here.)

Still, for two reasons, the more attention on this issue, the better. First, it totally undercuts the hypothetical horror stories that some Net neutrality advocates have pushed to justify a new law. Remember the refrain about Net users finding their favorite website deliberately degraded? By Feld’s own analysis, if such a thing happened, regulators and the courts already have the tools necessary to put a quick stop to it.

Second, once there’s agreement that Net users already are protected by enforceable federal rules, the whole rationale for new rules explodes. That’s when the Net neutrality debate shifts to the real issue – pushing deployment costs away from large content companies and onto consumers.

So whether you choose to believe us or Harold Feld or the FCC Chairman, the fact remains that Net users have and will continue to enjoy an open Web for years to come.

Pike & Fisher’s annual broadband summit just concluded and you can click here for the Hands Off white paper, “Net Neutrality Regulation Will Hinder Broadband Deployment.” An excerpt:

“The Internet is at the beginning of a remarkable transformation: the long-awaited convergence of television, video, and the Net. Two years ago, not a single major television network offered viewers the chance to stream programming over the Net. Today they all do. In early 2005, YouTube didn’t exist. Today, YouTube sends a staggering 1,000 gigabytes of data every second, or nearly 300 billion GBs each month.

“Given the obvious need for huge new investment to keep up the amount of data being pushed onto the network, the inevitable question must be raised: Who will pay for all these improvements?

We’re at the summit now. More’s coming.

Jonathan Zittrain is the leading Internet professor in the world. A founder of the Harvard Law School Berkman Center for Internet & Society, he currently is Oxford University’s Internet guru. He has a new, widely-heralded book: “The Future of the Internet and How to Stop It.” No doubt, net neutrality advocates were banking on Professor Zittrain to make their cause the centerpiece of his 338 page book with a title like that. But, alas, net neutrality is mentioned only briefly, in passing, deep into the book. And Zittrain hardly is an advocate for the regulation sought by net neutrality fans.

The main focus of the book is that viruses, spyware and privacy invasions by search engines will result in consumers using more secure internet appliances like the iPhone, BlackBerry and Xbox, rather than programmable PCs. Zittrain is concerned that such appliances will limit Internet innovation and the Internet experience.

As for net neutrality, Zittrain concludes: “One answer, then, to the question of net neutrality is that wide-open competition is good and can help address the primary worries of network neutrality proponents. In the absence of broad competition, some intervention could be helpful, but in a world of open PCs some users can more or less help themselves, routing around some blockages that seek to prevent them from doing what they want to do online.”

So, Zittrain hardy picks up the cudgel of net neutrality, and in fact makes the arguments against legislation and regulation by citing competition and technology as the solution should there actually be a problem (which there isn’t).

“Consumer advocates and Web heavyweights like Google Inc. and Amazon Inc. [say that] it’s a bedrock principle of the Internet that all traffic be treated equally.” — Associated Press, October 19, 2007

Oh really?

The Net neutrality implication of yesterday’s announcement is clear: Technology increasingly has the potential to take effective, real-time action against websites that peddle child porn. So far, so good and those on both sides of the Net neutrality issue almost certainly support this.

But as the article notes:

“While officials from the attorney general’s office said they hoped to make it extremely difficult to find or disseminate the [child porn] online, they acknowledged that they could not eliminate access entirely.”

That’s why emerging network technologies, in addition to improving the Web’s overall functionality, are so critical to this effort. Both the technology and the ability to make real-time decisions that keep up with the child porn dealers’ own rapid changes are vital to this effort.

But Net neutrality threatens this, especially the deployment of better networking technologies.

It would be beyond tragic if efforts to combat this serious problem were hampered because of Net neutrality regulations designed to combat a hypothetical problem.

Law professor Susan Crawford just posted a lengthy legal and historical analysis on the differences between “information” and “telecommunications” services.

Two points:

1. First, in one sense, her essay is ruefully amusing since it’s all about the difficulty of keeping regulations current as technology changes. But that’s precisely the issue with Net neutrality!

   Yes, Congress or the FCC can make arbitrary distinctions about application-specific programming but if the Internet’s history teaches anything, it’s that today’s clear distinctions quickly become tomorrow’s confusing red tape. The result: litigation and uncertain deployment.

2. Second, Prof. Crawford makes a completely unfounded statement at the end that network providers have “no legal constraint on their ability to discriminate against particular uses of their networks.” This is flat-out absurd. As we’ve pointed out numerous times, Net users enjoy substantive consumer protection through unfair competition law, antitrust law, and multiple common law tort theories — and of course, the power of the marketplace.

Even Amazon’s point person for Net neutrality has conceded that Title I of the Communications Act of 1934 gives the FCC power to take regulatory action if presented with unfair business tactics by broadband providers.

Richard Bennett takes a look at Save The Internet’s arguments for net neutrality. Apparently, lacking good examples, they’ve decided to make stuff up. He annotates, with corrections…

“In October 2007, the Associated Press busted Comcast for blocking its users’ access to peer-to-peer file-sharing networks like BitTorrent and Gnutella. This fraudulent practice is a glaring violation of Net Neutrality.”

Nope. Comcast slows BitTorrent seeding, but doesn’t interfere with BitTorrent downloads. And it doesn’t interfere with Gnutella (a piracy tool) at all. No violation of any law.

“In September 2007, Verizon was caught banning pro-choice text messages. After a New York Times expose, the phone company reversed its policy, claiming it was a glitch.”

Nope. Verizon didn’t block a single text message. There was a 24-hour delay in issuing a shortcode to NARAL; shortcodes enable people to setup the equivalent of an e-mail list of SMS addresses. It had nothing to do with the Internet.

“In August 2007, AT&T censored a live webcast of a Pearl Jam concert just as lead singer Eddie Vedder criticized President Bush.”

This was a concert AT&T streamed from its own web site, not something Pearl Jam did on its own. This is no different from STI censoring comments on its blog, which it does all the time.

“In 2006, Time Warner’s AOL blocked all emails that mentioned http://www.dearaol.com — an advocacy campaign opposing the company’s pay-to-send e-mail scheme.”

This was simply a spam filter run amok. It happens.

“In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a contentious labor dispute.”

One word: CANADA.

“In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.”

No, they blocked VoIP, not a “web-based” anything. The FCC fined them for it, and they stopped, proving that existing law is sufficient.

“Shaw, a major Canadian cable, internet, and telephone service company, intentionally downgrades the “quality and reliability” of competing Internet-phone services that their customers might choose — driving customers to their own phone services not through better services, but by rigging the marketplace.”

Nope, Shaw sells (in CANADA) a service that prevents P2P degradation of VoIP. It’s a good service.

We like to point out that Net Neutrality is a solution in search of a problem. For Free Press and Save The Internet, however, Net Neutrality appears to be a solution in search of a manufactured excuse. As Richard Bennett points out, “STI offers only exaggerations, half-truths, and outright lies. Everyone should oppose any campaign built on such a foundation.”

While we were enjoying the beach last weekend, tech genius Richard Bennett noticed what looks like a fatal flaw with the Max Planck Institute’s Glasnost test. We’ll leave the engineering issues to Messers. Bennett and Ou but at a minimum, Bennett’s discovery should put to rest the Google-inspired idea that Net neutrality requires merely a “light touch” of FCC regulation.

Oh yes, and it will be fun to see if the Net neutrality advocates start to tip-toe away from their quick embrace of the Glasnost findings.

At least in this case, what happens in Vegas shouldn’t stay in Vegas:

“Net neutrality” is a solution in search of a problem. The Internet has delivered magnificent new opportunities to Americans precisely because it has been left free to develop with minimal government interference. Let’s leave it that way.

“Keep Congress Away from the Internet” (Editorial)
Las Vegas Review-Journal
May 22, 2008

For the whole Review-Journal editorial, click here.

Hands Off The Internet has a letter in today’s New York Times.

To the Editor:

Your May 19 editorial “Democracy and the Web” argues for broad new federal regulation of the Internet — a first in Internet history.

You say that “if Internet service providers started discriminating among content to make more money or to suppress ideas they do not like,” users will suffer. What you overlook is that there already are laws and regulators poised to deal with any such hypothetical problems.

Moreover, the first-time ever federal control of the Internet “pipes” inevitably will hinder the network management (and build-out) needed to handle the torrent of new video and other data-rich traffic flooding the Internet. Users (and democracy) then will really suffer when they face higher costs or limited service, or both.

Federal control and dumb pipes are not the answer to our broadband needs, especially when the alleged basis of the new laws is speculation.

Mike McCurry
Christopher Wolf
Co-chairmen
Hands Off the Internet
Washington, May 19, 2008

According to today’s AP wire, NetFlix has started to accelerate its transition away from a mail-in business model. The company has begun marketing a broadband device that consumers can use to stream movies and TV programs.

And the impact on the Net? Consider a few numbers courtesy of PBS’ ever-insightful Bob Cringely:

“Just look at the comparative sizes of the QuickTime HD trailers for the upcoming Indiana Jones and the Kingdom of the Crystal Skull…. The 480p trailer (that’s standard definition and slightly better quality than the 640-by-480 shows most people download through iTunes now) requires 47 megabytes while the 720p file is 78 megabytes and the 1080p version requires 126 megabytes. [Assuming a two-hour movie] the ultimate file size for the H.264 download versions [would be] 3048 megabytes, 5059 megabytes, and 8172 megabytes, respectively.”

[Image via Flickr]

In short, each two-hour HD movie download adds 3-8 GBs to the web, depending on the display resolution. Netflix won’t be sending all its movies in HD resolution yet — but it’s only a matter of time. Now think about this practice going mass-market while Congress prohibits common-sense network management as part of Net neutrality.

This Friday evening, if you pass through the 405 in Los Angeles, the I-10 in Houston or the Circle Interchange in Chicago, look around. You’ll get a good idea of the Net’s future under Net neutrality.