Crossing Lines

In cyberlaw, we are repeatedly reassured by leading companies that certain suspect actions just won’t happen because they don’t make economic sense. For example, opponents of net non-discrimination principles say that carriers have an economic incentive to maximize the value of that network, so they won’t discriminate against particular applications within it. But this assumption is now being challenged. . . . and we are seeing cases where a carrier may not merely discriminate against certain applications, but also conceal the fact that it is doing so:

Comcast is pretending to be part of online conversations in order to frustrate users who want to use particular online applications. This happens all the time in the name of “traffic shaping” — it’s the kind of thing that China does to interfere with internet use. What’s different and important about today’s story is that people have carefully experimented. We can now understand exactly what Comcast is doing.

More after the jump . . .

The AP is now reporting that Comcast “interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally.” Certainly a carrier has a right to manage traffic when congestion becomes a problem, but such management ought to be based on usage, not on applications. Moreover, Comcast appears to be trying to mask its traffic management methods:

Comcast’s technology kicks in, though not consistently, when one BitTorrent user attempts to share a complete file with another user. Each PC gets a message invisible to the user that looks like it comes from the other computer, telling it to stop communicating. But neither message originated from the other computer — it comes from Comcast. If it were a telephone conversation, it would be like the operator breaking into the conversation, telling each talker in the voice of the other: “Sorry, I have to hang up. Good bye.”

Matthew Elvey, a Comcast subscriber in the San Francisco area who has noticed BitTorrent uploads being stifled, acknowledged that the company has the right to manage its network, but disapproves of the method, saying it appears to be deceptive.

But don’t be surprised if Comcast says it has a right not merely to shape traffic, but to shape it secretly–I suspect it may characterize these blocking methods and the situations it deploys them in as trade secrets.

Though network congestion is the ostensible rationale for discrimination here, the founder of BitTorrent suspects that carriers may be engineering artificial scarcity:

Ashwin Navin . . . confirmed that it has noticed interference from Comcast, in addition to some Canadian Internet service providers. “They’re using sophisticated technology to degrade service, which probably costs them a lot of money. It would be better to see them use that money to improve service,” Navin said, noting that BitTorrent and other peer-to-peer applications are a major reason consumers sign up for broadband.

Navin suggests that it’s not in Comcast’s interests to disable apps like BitTorrent. But note that Comcast doesn’t just sell the pipe–it’s also selling content like cable TV. Just like Hollywood tried to use secondary liability laws to control the development of the VCR, broadband providers have tremendous incentive to dole out bandwidth (and applications) on their own terms. Who knows, maybe repeated frustration with YouTube or ABC-Online will drive people to buy more cable channels?

As we see the dark side of much-ballyhooed vertical integration of content and conduits, Susan Crawford has the following bottom line:

Like the Verizon/NARAL flap and the Pearl Jam escapade, here’s another story about currently-legal action, permitted under someone’s elaborately-walled Terms of Service, that interferes with basic communications. Comcast will say “we’re not blocking.” But they’re degrading, prioritizing, and filtering, without telling users. And they’re planning to do much more of this.

What’s the solution? Structural separation. You’re either a plain-vanilla transport company serving all comers, or you’re something else competing for our attention. But this mixture, this hybrid of apparent-communication plus editorial control, is unacceptable.

Larry Lessig’s warnings are looking more prophetic:

The environment of innovation on the original network will change according to the extent that cable becomes the primary mode of access to the Internet. Rather than a network that vests intelligence in the ends, the cable-dominated network will vest an increasing degree of intelligence within the network itself. And to the extent it does this, the network will increase the opportunity for strategic behavior in favor of some technologies and against others. An essential feature of neutrality at the code layer will have been compromised, reducing the opportunity for innovation worldwide.

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