Tag: FCC

Why I’m Neutral (for now) on Net Neutrality

Let me start by saying I hate this issue. It’s exhausting to research and hardly a page-turner.  Still, I opened my big, cyber maw, suggesting to friends on Facebook that they might calm down about the news that FCC Chairman Ajit Pai intends to reverse the 2015 Open Internet Order, so I feel obligated to dig a little deeper and follow up. But the net neutrality story overflows with complexly tedious details—a potpourri of policy wonks and technical jargon dating back to the 1960s—that not only betray any attempt to identify an engaging starting point, but which also summon Macbeth’s ode to vanity as a tale told by an idiot, full of sound and fury, signifying nothing. 

Because the neutrality story is complicated, nuanced, and dry, it is ideally suited to manipulation through the glib shorthand of social media.  If nothing else, it would be grand if people would stop trying to make policy by meme. On any issue. Ever.  After all, there is little point in coming to terms with Russia’s role in hacking our political process when we are clearly willing to hack ourselves on a daily basis.  The absurdity of sharing “neutrality” woes, which are largely misinformed, on a highly-manipulated platform like Facebook cannot be overstated.

The neutrality narrative doesn’t truly offer any good guys to cheer or bad guys to boo—just huge corporations (think of them all as bad guys if need be) that are variously at odds one moment and in collaboration the next. And though the issue has unquestionably been politicized, it is not a story with any clear lines that can be accurately drawn around the contours of party or ideology. (e.g. How many Dems would guess that their biggest judicial ally favoring the 2015 OIO is the late Justice Scalia?)  In the broadest sense, the debate is not about whether broadband internet access services (BIAS) should be held accountable for non-neutral practices; but rather a question as to whether they should be regulated in anticipation of potential malfeasance by the FCC or responded to upon evidence of malfeasance by the FTC.

In 2007, both agencies agreed that instituting “neutrality” regulation was premature, that the market was too nascent and fast-developing to know whether such regulation would have unintended negative consequences.  For what it’s worth, over the subsequent ten years, none of the major concerns, which are now being described as imminent, manifest in any substantive way.  For instance, many people share the talking point that (also in 2007) Verizon once blocked NARAL’s use of its platform for a mobile text campaign.  But, the salient details in that story are first, that Verizon’s original policy was not ideological—many corporations try to remain neutral on hot-button issues—and second, that Verizon actually backed down rather quickly under public pressure.  This market-based response to Verizon lends credence to the wait-and-see approach adopted ten years ago by both the FTC and the FCC.

Neither the telcos (AT&T et al) nor the major platform providers (Google et al) deserve any benefit of our doubt. Companies operating in both sectors have been guilty at one time or another of non-competitive and non-neutral practices.  The simple way to view these players (and this includes popular platforms like Netflix) is that they’re all vying for our time and money (and personal data) and all looking for an edge over one another. Having said that, the 2015 Order by the FCC presently tilts the regulatory landscape in favor of the Googles of the world, and everyone spreading the word to “save neutrality” is doing the big platforms a big favor. This is folly.  As argued in older posts, I see no reason why Google and Facebook should be free to manipulate our web experiences, which they do almost constantly, while we pretend to have achieved “neutrality” by preemptively regulating BIAS providers, which have not been shown to substantively engage in non-neutral practices to date.

If we are going to have a coherent regulatory framework that protects consumers while encouraging investment in a bigger, better, and faster internet, this will almost certainly require bi-partisan leadership from a Congress willing to engage both the FTC and the FCC in the proposal of new guidelines based on the internet we have—and may realistically have in the foreseeable future. By contrast, there is an extent to which classifying BIAS providers under Title II in the 2015 Order was a politically expedient attempt to shoehorn the unprecedented and dynamic digital ecosystem into early 20th century regulatory guidelines by way of analogy.  And unfortunately, most analogies don’t apply.

Andrew Orlowski, who has been following the neutrality debate for a decade, describes in a 2015 article how unhelpful the usual analogies are to a sensible discussion about the way packet networking (i.e. data flow) actually functions.  “…the assumption that traffic management is the cause of service differentiation is itself a narrow and misleading assumption. If you take away traffic management from a network, the network wouldn’t suddenly become a Garden of Eden-like paradise. It probably wouldn’t work at all,” Orlowski writes.

In short, the network is never neutral.  Or to put it in prosaic terms, when your video stream hitches up, which happens from time to time, how would you know if it’s due to malfeasance on the part of the ISP or the imperfection of data traffic management somewhere on the network—or for that matter, wind in the wires?  Meanwhile, the position of the telcos, with which Ajit Pai agrees, is that the 2015 Order dissuades investment in broadband expansion that would not only make your video stream more reliable, but would bring still-needed connectivity to underserved regions of the country.

Write that off as corporate/Republican double-talk if you want, but stranded, private investment is a tricky animal; and in the U.S., we don’t build public, even in circumstances where perhaps we should. So, the reality we have is that nobody is going to invest billions in a better, faster internet without knowing how that investment will be recouped. In the early 20th century, when the country was first being fully electrified, those stranded investments were guaranteed a return by the government granting monopoly control of power distribution to the handful of investing corporations.

So, if the 2015 Title II Order cuts off certain revenue streams for BIAS providers, which it does, might the incentive to make stranded, broadband investments have come at the cost of some new form of monopolistic guarantee?  I have no idea, and we won’t likely find out; but there is historic precedent for that kind of arrangement. Meanwhile, as a company like Google diversifies to provide access via fiber, which would not be covered by the 2015 Order (even if it were to remain in place), what form of protection do consumers hope will emerge in a model in which a single company is simultaneously ISP and the largest advertiser/data-miner in the world?  Answer:  We’re nowhere near addressing that question.

And of course, the pervasiveness of the network will soon exceed our present experience, as we seem destined for better or worse to live among the “internet of things.”  I doubt there is any kind of reasonable, statutory framework that empowers either the FTC or the FCC to adequately protect consumers in a world where every aspect of daily life is networked through systems built by private enterprise. Perhaps, that’s an argument for the 2015 Order as a first step, but even if that were the case, the “debate” raging on social media is largely looking backward at what never occurred over the past 20 years, rather forward at what might occur over the next 20 years.

Admittedly, the epicenter of this debate is a matter of statutory interpretation with regard to the way ISPs function and the meaning of “information service” vs. “common carrier.”  Until the 2015 Order, BIAS providers (and only cable providers) were classified as “information services” under Title I of the Telecommunications Act.  At the same time, there are reasonable, common-sense arguments (including Scalia’s dissent in the Brand X case of 2005) for reclassifying these services as “common carriers” under Title II.  My own view, after reading Chairman Pai’s 50+ pages of legal argument on this matter, is that because he probably has the statutory argument on his side, this says more about the inadequacy of existing frameworks for effective cyber policy than it does about the current debate over neutrality.  Maybe that’s the issue we should address.

There is much more to this epic tale of mind-numbing minutiae, so the above is just a snapshot of why I’m neutral (for now) about the likelihood that the 2015 Order will be reversed.  Behind the political rhetoric and scary memes, the truth is that nobody really knows what the effects of the Order might have been, but we do know the Order wasn’t in place for the first two decades of our using the internet, and neutrality principles were largely sustained by other forces.  In short, the Title II Order is not in itself net neutrality, so its reversal does not end net neutrality.

EFF Petition Language Used in Fake Emails to the FCC

Photo by Elnur

It’s depressing how often one reads news that makes the United States seem as though we’re reliving the 19th century rather than an enlightened 21st.  With that comment, you might think I’m referring to the current administration (and I certainly could be), but at the moment, I refer to Americans across the political spectrum who seem willing to return to the political tactics of Tammany Hall, albeit in digital form.

On May 31, the National Legal and Policy Center, a D.C. watchdog group, reported that an “initial forensic analysis” of the 2.5 million comments submitted to the FCC on Net Neutrality found that over 465,000 of these were fake. It further states that over 100,000 of these comments used language from the Electronic Frontier Foundation’s “Dear FCC” petitioning tool in support of “Net Neutrality.”  Although the NLPC did not accuse the EFF of processing these false emails, the organization was quick to defend itself as though it had been so accused.  It’s June 1 response states …

“NLPC’s report is false. Not one name, email address, or email domain cited in the report matches to any of the comments that came through EFF’s comment tool.”

Then, missing the point and seizing the moment, the statement proposes …

“Throughout the FCC’s comment process, we’ve seen malicious actors attempt to discredit the process by generating obviously fake comments. Their hope is that they can drown out the voices of the overwhelming majority of Americans who support net neutrality.” 

I am in no way qualified to assert that the EFF had any direct hand in the fake emails, but somebody spammed the FCC; and I have no problem saying that the EFF’s rebuttal is preposterous.  If there is a manipulator trying to sway public opinion “away from Net Neutrality,” it would be easier and more effective to SPAM the FCC with comments in support of that agenda than it would be to plant false data with the hope that its discovery will make the EFF look bad as a tangential way to tip the scale on the neutrality debate.  That’s a convoluted process expecting a lot of the public that, frankly, has bigger fish to fry these days.

It is far more likely that the false emails in this case have been generated by a manipulator who is on the same side as the EFF on the neutrality issue, and the EFF’s failure to denounce the practice is both telling and typical of our times.  In short, it seems that people across the political spectrum have forgotten that American democracy demands that the means are more important than the ends—a discipline that requires vigilance and which may be in regression thanks largely to social media.

Even people who are thoughtful about big issues will naturally respond to memes and headlines with short claims like “X million Americans support Net Neutrality.”  We accept these statements as fact and help to spread them, lending them the credibility of our endorsement. That’s politics via Facebook and Twitter, and whichever side can claim the larger number stands a decent chance of winning the debate regardless of merit.  During the SOPA/PIPA dustup, the EFF and similar organizations crowed loud and long about the apparent overwhelming groundswell of support to defeat those bills. But nobody stopped to wonder how many ineligible voices—kids, trolls, foreign citizens, bots—were represented in those numbers.

Now that there is a full-scale congressional investigation into Russian meddling in the U.S. election and we’re doing a lot of soul-searching into the nature of populism, people are beginning to at least consider the insidious role data manipulation can play via this internet thing that groups like the EFF like to call “the greatest tool for democracy ever invented.”  In this regard, I encourage readers to follow the ongoing investigation by British journalist Carole Cadwaldr into the role of data manipulation in national elections.

The EFF defends the internet writ large as the essential tool for speech and democratic principles, declares that FCC Chairman Pai’s agenda threatens all of that, but then downplays the significance that at least 20% of the emails associated with this very campaign appear to be fake. We’ve seen this brand of politics before from similar groups.

As reported in April of 2016, Fight for the Future’s brag about the 100,000 citizens who responded to the USCO’s request for comments about the DMCA appeared to be at least partly fake based on an experiment conducted by David Lowery and his colleagues. In fact, it appears that the Canadian company Tucows, which is implicated in that same FFTF campaign was also employed in John Oliver’s so-called grassroots campaign “Go FCC Yourself,” which processed such thoughtful comments as “Fuck you Ajit Pai for what you’re are trying to do and I hope you die a horrible painful death with no remembrance to your name …” (I do love how the internet fosters the big ideas.)

I have already proposed in a few recent posts that Net Neutrality is so complex an issue that I doubt many actual citizens who sign these petitions understand what they’re signing anyway.  Add to this a substantial number of fake signatories and geniuses like the one cited above, and I’m at a loss to discern how this politics of cybernetic ballot stuffing is any better than the Breitbart network of gobbledygook posing as news.  I’ll keep an open mind about the FCC and neutrality and watch what happens;  but so far, the only player in this whole story who has actually given me reason to think about the issue, rather than a lame talking point, is Ajit Pai.

Net Neutrality Fight Brews

Composite sources by zmiter & maximmmmum

When the President of the United States disses fundamentals from climate science to the separation of powers, it is admittedly a very difficult time to debate any issue outside the gravitational pull of so much regressive momentum. Amid a flurry of truly dangerous policy reversals, the storm now brewing over the issue of Net Neutrality will doubtless be subsumed by the broader narrative of “Trump rollbacks,” but this generalization only clouds our ability to assess what’s actually happening in an already obscure area of cybernetic policy. Especially through the chaos of social media. (Add to this, the recent kerfuffle over the FCC possibly taking action against CBS for a joke made about Trump by Stephen Colbert, and we’ve got a whole circus, but we’ll stick with Net Neutrality for the moment.)

First, let us pause to acknowledge this dichotomy: the fact that we choose to interact in a walled garden like Facebook as complicit lab rats in that company’s grand data experiment while posting declarations that the web must remain “free” and “open” is a delusion that must be reconciled before considering an issue like Neutrality. Free and open are nice words and easy to support with a mouse click, but what’s really at stake here?

The order that FCC Chairman Ajit Pai proposes to reverse—for the moment anyway—is not actually Net Neutrality itself; and the real question before us is whether the chairman will merely deregulate or will instead live up to any of his prior testimony and help to shepherd a more effective and comprehensive policy aimed at achieving Neutrality principles. As noted in my last post on this subject, the FCC rules only affect ISPs, and if we truly want an internet that protects all parties great and small, then a coherent and consistent regulatory framework must be pursued for edge providers as well.

In practical terms, it seems to me that there is little value in saying that ISPs (AT&T, Comcast, etc.) may not discriminate via broadband while edge providers (Google, Facebook, etc.) are free to discriminate via algorithm. And in simple terms, this was the crux of Pai’s dissent in passing the 2015 order which placed ISPs under Title II of the Communications Act, giving the FCC power to regulate these providers as “utilities.”

It is important to remember that Net Neutrality is a goal and not a specific policy doctrine. Its principles go back to the days of dial-up, and as attorney and expert Mitchell Lazarus argues in his blog, regulating ISPs as “utilities” through the 1990s was a key reason why we had more competition among this class of providers than we do today—when most markets are served by a monopoly or duopoly at best. But, in an earlier post from October 2014, Lazarus also explains why placing ISPs under Title II of the Communications Act alone would not achieve Neutrality—partly because internet traffic simply does not ebb and flow like phone service for which Title II was designed. Lazarus writes …

“An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content – email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is ‘fair’. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.”

So, Chairman Pai’s plan to reverse the rule placing ISPs under Title II does not in itself “roll back Neutrality” because one cannot roll back what has not been achieved. Having said that, it seems that Lazarus would not endorse reversing the Title II status so much as adding to it “…a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs.” These competitors would pay to use the channels, and consumers would once again have options to switch ISPs if they become dissatisfied with the service, according to Lazarus’s assessment.

Whether or not the monopolistic state of the ISPs can be reversed or mitigated, the same problem exists on the edge provider side of the equation, with a company like Google owning most of search and advertising in the U.S. and Europe, along with one Amazon, one Facebook, etc. It seems to me, we consumers cannot expect an effective approach to the goals of Neutrality without meaningful and complementary regulation by both the FCC and the FTC of both ISPs and edge providers.

In a nutshell, the FCC’s job is to protect consumers vis-a-vis access to the web while the FTC’s job is to protect consumers as we interact with edge providers once we’re on the web. And it is unclear at the moment what happens when a company functions as both access and edge provider.

It’s mostly about corporate interests for now.

Be prepared for this fight to at least sound existential in the rhetoric to follow from places like the Electronic Frontier Foundation. Be prepared for the story to be positioned as an Obama-for-People v Trump-for-Corporations narrative—and for the Neutrality tornado to fling about all manner of unrelated topics (did someone say SOPA?). But for now, this battle seems to have more to do with very large corporations on both sides—and very little to do with consumers. Mostly it’s over the issue of who is going to pay for what.

Large users of broadband—Netflix is the world’s leader—are not the companies that invest in the physical hardware to expand access, speed, and reliability. And there is an extent to which the ISPs, which do make these investments, see Neutrality regulations as keeping the access prices paid by these huge edge-provider services artificially low. There is more to learn on this subject as the story unfolds; but this follow-the-money line of inquiry is likely more accurate than taking at face value the story that the Obama-era rules were providing meaningful consumer protections.

Net Neutrality & Copyright

In both real and fictitious ways, the Neutrality fight is likely to implicate copyright and the interests of rights holders. Because Neutrality principles are based on the premise that universal access to the web is a civil right, remedies for online infringement like throttling speeds or account termination become unavoidably intertwined in the public debate over Neutrality. This may foster exaggerated and misleading headlines claiming that major rights holders (i.e. Hollywood) are against Neutrality. But there is no underlying reason why copyright enforcement cannot coexist with Neutrality principles, and I worry that persistent confusion will rally creators to lobby against their own self-interests.

In this guest post, for Hypebot, No Internet, No Music: Why Musicians Should Care About Net Neutrality, Will Meyer has the right spirit but is making an important error in my view. The understandable instinct to assume that President Trump wants to gut protections for independent creators obscures the fallacy in which Meyer seems to conflate edge provider Facebook with the ISPs affected by FCC rules. He writes, “… the truth is Facebook isn’t free. We pay with our data and we must pay with our dollars if we want the algorithm to take our bands seriously.” Absolutely right. And, in a slightly different context, Ajit Pai said essentially the same thing in his dissent over former Chairman Wheeler’s proposal to place ISPs under Title II.

More relevant to Meyers’s concerns is the fact that Pai specifically noted that having two separate regulatory regimes for ISPs and edge providers only entrenched the market advantage of the latter, which goes directly to the heart of some of Meyers’s observations about using Facebook for promotion of his band. This does not mean Pai gets a free pass; it means creators need to look way beyond the rhetoric to follow how the policy will affect them.

Evolving Neutrality policies in both the U.S. and abroad should be closely watched by copyright interests because the statutory frameworks can make a difference with regard to enforcement. Neutrality is meant to protect access and dissemination of legal activity online, and there is an extent to which the public debate becomes mangled by those who view both broadband and access to unlicensed content (i.e. piracy) as interrelated “rights.”

As indicated in previous posts, I advocate a wait-and-see approach to Chairman Pai’s policies, not because I inherently trust his view; but because the 2015 framework for ISPs doesn’t really seem to achieve the consumer-facing goals that people think it does. Unfortunately, this probably won’t stop the hyperbole from flying in every direction, which is unlikely to help the development of a more coherent policy.