FCC Contest Seeks More Data for a Better Net Neutrality

Last week, the FCC announced the "FCC Open Internet Apps Challenge," a contest to attract software that helps ordinary users measure whether their Internet services — both mobile broadband and traditional "fixed" broadband — are consistent with open Internet principles. The FCC is also asking for submissions of "research papers that analyze relevant Internet openness measurement techniques, approaches, and data." This is a welcome effort from the FCC, and we hope to see software developers and researchers help the public better discover how our networks and service providers are treating our Internet communications.

While we have many points of concern about the FCC's net neutrality rules, EFF has always highlighted data, evidence, and provider transparency as unequivocally vital pieces of the complex net neutrality puzzle. Remember that in October of 2007, the Associated Press and EFF confirmed that Comcast was interfering with subscribers' BitTorrent activity. But the story didn't actually begin there — for several weeks beforehand, EFF had been receiving scattered, anecdotal reports of unusual BitTorrent behavior. However, until we had developed testing methods and tools to obtain some reliable data, there were countless technical questions yielding deeply complicated policy questions. Like, is Comcast actually responsible for the effects users are seeing, or is it some kind of bug? If Comcast is responsible, how irreversible or deep-seated is the method being used? Is this the kind of technical problem that users can address without inviting government regulation (from the FCC or otherwise)? Is there a form of government intervention that would be appropriate and effective to alleviate the actual BitTorrent blocking and other actions like it?

The best answers to these questions relied — and will continue to rely — on the public having real knowledge about how our Internet connections are functioning and whether or not ISPs are providing the open Internet that users want. EFF made an early attempt at providing such information gathering software with the Switzerland Network Testing Tool; the Measurement Lab is building an open platform to help give researchers more reliable, accurate tools for measuring Internet features; and hopefully the FCC contest inspires yet more innovation. As we continue to explore the challenges of maintaining an open Internet, strong data about the networks will be an important pillar in the defense of freedom of expression, user control, innovation, and more.

Submissions will be accepted from February 1 to June 1, 2011, and the winners will be invited to the FCC headquarters in Washington D.C. to meet FCC Chairman Genachowski, present their work to the commission, and have their work featured by the FCC online. Visit the challenge.gov portal for details about the contest.

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Court Rejects FCC Authority Over the Internet

In a ruling that imposes important limits on the FCC's authority to regulate the Internet, the D.C. Circuit Court of Appeals today overturned the FCC ruling against Comcast for interfering with the BitTorrent traffic of its subscribers. The court found that the Commission had overstepped the limits of its "ancillary authority" when it disciplined Comcast for its clandestine blocking behavior.

The ruling is not likely to make much difference to Comcast subscribers—Comcast had already agreed to cease its BitTorrent interdiction before the FCC's ruling was issued. Instead, the court's ruling is important because it represents a blow to FCC Chairman Genachowski's proposed net neutrality regulations, which are premised on the same theory of "ancillary jurisdiction" that the FCC used against Comcast and that the court rejected today.

Here's the problem: Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, the FCC decided to rely on its "ancillary jurisdiction," a catchall source of authority that amounts to “we can regulate without waiting for Congress so long a the regulations are related to something else that Congress told us to do.” Of course, this line of reasoning could translate into carte blanche authority for unelected bureaucrats to regulate the Internet long after Chairman Genachowski has moved on. As we put it in October:

If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC "Internet Decency Statement." After all, outgoing FCC Chairman Martin was a crusader against "indecency" on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it's also too easy to imagine an FCC "Internet Lawful Use Policy," created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance. After all, it was only thanks to a jurisdictional challenge ... that we defeated the FCC's "broadcast flag" mandate which would have given Hollywood and federal bureaucrats veto power over innovative devices and legitimate uses of recorded TV programming.

So while we are big supporters of net neutrality, we are glad that today's ruling has reasserted the important limits on the FCC's authority to regulate the Internet.

The fight now moves back to Congress and the FCC, with numerous net neutrality advocates urging the FCC to "reclassify" Internet access services under Title II of the Communications Act—another effort to find FCC authority to regulate ISPs without having to go to Congress. In the meantime, everyone who cares about net neutrality will continue to watch ISPs closely for more evidence of discriminatory practices.

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FCC's Net Neutrality Plan Would Permit Blocking of BitTorrent

Remember what put the debate over net neutrality into high gear? In 2007, EFF and the Associated Press confirmed suspicions that Comcast was clandestinely blocking BitTorrent traffic. It was one of the first clear demonstrations that ISPs are technologically capable of interfering with your Internet connection, and that they may not even tell you about it. After receiving numerous complaints, the FCC in 2008 stepped in and threw the book at Comcast, requiring them to stop blocking BitTorrent. The Comcast-BitTorrent experience put net neutrality at the top of the FCC agenda.

Yet now that the FCC has formally issued draft net neutrality regulations, they have a huge copyright loophole in them — a loophole that would theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was "reasonable network management" intended to "prevent the unlawful transfer of content."

You heard that right — under these conditions, the new proposed net neutrality regulations would allow the same practices that net neutrality was first invoked to prevent, even if these ISP practices end up inflicting collateral damage on perfectly lawful content and activities.

When we saw the loophole, we had to ask ourselves, "Is this real net neutrality?" And the answer was simply, "No." The entertainment industry is already pressuring ISPs to become copyright cops. Carving a copyright loophole in net neutrality would leave your lawful activities at the mercy of overbroad copyright filtering schemes, and we already have plenty of experience with copyright enforcers targeting legitimate users by mistake, carelessness, or design.

If net neutrality regulations are to be taken seriously at all, then the loophole must be closed. Sign the petition to demand real net neutrality from the FCC.

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Is Net Neutrality a FCC Trojan Horse?

On Thursday, Federal Communications Commission (FCC) Chairman Julius Genachowski is expected to unveil draft rules aimed at imposing network neutrality obligations on Internet Service Providers (ISPs). In the excitement surrounding the announcement, however, many have overlooked the fact that the this rulemaking is built on a shoddy and dangerous foundation – the idea that the FCC has unlimited authority to regulate the Internet.

Genachowski has announced that the draft regulations will require ISPs to abide by the "Four Freedoms" set forth in the FCC's 2005 Internet Policy Statement, as well as the additional principles of nondiscrimination and transparency. EFF strongly believes in these six principles. Our work speaks for itself: we are developing software tools to Test Your ISP in the wake of uncovering Comcast’s meddling with BitTorrent traffic, seeking a DMCA exemption to let you run applications of your choice on your mobile phone, and fighting Hollywood’s efforts to force DRM restrictions into your television.

But Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, we expect the FCC will rely on its "ancillary jurisdiction," a position that amounts to “we can regulate the Internet however we like without waiting for Congress to act.” (See, e.g., the FCC's brief to a court earlier this year). That’s a power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post.

Hence the danger. If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC "Internet Decency Statement." After all, outgoing FCC Chairman Martin was a crusader against "indecency" on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it's also too easy to imagine an FCC "Internet Lawful Use Policy," created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance. After all, it was only thanks to a jurisdictional challenge -- ironically, by many of the same groups currently celebrating Genachowski's rulemaking announcement -- that we defeated the FCC's "broadcast flag" mandate which would have given Hollywood and federal bureaucrats veto power over innovative devices and legitimate uses of recorded TV programming.

EFF's concerns are born from more than just a general skepticism about government regulation of the Internet. Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T.

Fortunately, there are two opportunities to reign in the FCC’s expansive views of its own “ancillary jurisdiction.” A federal court is considering this important question as part of Comcast's challenge to the FCC's order last year regarding interference with BitTorrent traffic (PFF filed a strong amicus brief in the case, arguing against the FCC's power grab). Or Congress could limit the FCC's power by authorizing to regulate only to ensure network neutrality.

So while we look forward to evaluating Chairman Genachowski’s proposed net neutrality regulations, the first step must be a clear rejection of any suggestion that those regulations can be based on “ancillary jurisdiction.” Otherwise, "net neutrality" might very well come to be remembered as the Trojan Horse that allowed the FCC take over the Internet.

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Laboratories and Roadmaps for Network Testing

Today, the New America Foundation, PlanetLab and Google announced the launch of the Measurement Lab project, an initiative to provide server resources for researchers interested in network neutrality and performance testing. This is good news for the community of academics and activists who are trying to map, measure and record the state of network management by ISPs as well as many other aspects of Internet performance.

The Measurement Lab is an alternative version of a pre-existing network called PlanetLab, which is run by a consortium headquartered at Princeton. Essentially, PlanetLab is a large network of computers that researchers can run experiments on. Until now, it has been hard to use PlanetLab for network neutrality tests because the system wasn't designed for it: all the code runs in virtual machines and might be starved of CPU time right in the middle of an attempt to take high-precision network latency measurements. M-Lab is a version of PlanetLab that is designed to ensure that when a test is running, it has near-exclusive use of a CPU core and network interface.

M-Lab is not a testing tool in and of itself; rather, it is a platform that will save researchers from having to deploy their own servers in order to run "active" network tests. Active tests are those in which the clients send synthetic traffic that is made up simply for the purposes of the test (M-Lab only works with active tests initiated by clients run on users' computers). M-Lab won't be useful for "passive" network tests which examine the way the network carries traffic that your computer was sending independently of the test. You can see a list of active and passive network testing tools here; EFF's Switzerland software is an example of the passive testing approach, although M-Lab will be useful if we add synthetic traffic generation features to Switzerland in the future.

M-Lab gets good marks for openness and privacy by design. The active-testing paradigm ensures that the network's servers will never receive real user traffic, which would need very high levels of privacy protection. Essentially, the servers may record traffic sent to their IP addresses, but the only software that will be sending such traffic will be clients that generate synthetic messages.

The code for the servers will be free/open sourced, and all of the experimental data it collects will be published. The most noteworthy disadvantage of the project is that use of M-Lab is currently limited to PlanetLab members, so testing projects that are not affiliated with research institutions will need to find academics to collaborate with if they want to use M-Lab servers.

And speaking of Switzerland: development on EFF's network testing project was slow in the past few months, but coding has started again, and we have a roadmap and release schedule for new Switzerland versions. We'll be posting to announce a new release (and reporting on some of the interesting network phenomena Switzerland has detected to date) in the next few weeks.

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Comcast Unveils Its New Traffic Management Architecture

Late on Friday night, Comcast filed an overview of its new traffic management arrangements with the FCC. This is the long term replacement for its controversial practice of using forged TCP Reset packets to limit the use of peer to peer protocols.

The new system appears to be a reasonable attempt at sharing limited bandwidth amongst groups of users. Unlike TCP RST spoofing, it doesn't explicitly discriminate against some applications, and it doesn't threaten protocol developers with interoperability problems and uncertainty about network behavior.

Comcast's objective here is still largely to prioritize non-P2P traffic above P2P traffic. But the criterion they use is the amount of data a cable modem sends during each 15 minute period, which is a much fairer rule than examining the traffic protocol. The way deprioritization works is simple: high priority machines get to send data, and if there is any transmission capacity left over, the low priority machines get a share of that.

EFF is proud that our work helped to expose Comcast's misadventures in network management last year, and we're pleased to see Comcast returning to congestion management practices that are transparently disclosed and avoid protocol discrimination.

The new traffic management setup should not be confused with the 250 GB/month cap which Comcast announced last month; the two will exist side by side.

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Order Against Comcast Issued, FCC Credits EFF

The FCC has finally published its order (adopted on August 1) directing Comcast to stop blocking BitTorrent traffic. The 34-page ruling makes for surprisingly enjoyable reading, at least as FCC publications go. The order follows the basic outline that was explained by Chairman Martin in his statement on August 1, 2008. But there are some interesting additional tidbits:

• The FCC specifically cites and credits EFF's testing in discussing Comcast's BitTorrent blocking activities. And it also relies explicitly on evidence gathered by individual Internet users Adam Lynn, Jeffrey Pearlman, David Gerisch, Dean Fox, and Robert Topolski. The order concludes with this remarkable invitation: "We invite ... members of the public to keep a watchful eye on Comcast." And, as it happens, EFF is building the Switzerland network testing tool to help Internet users to do just that!
• The Commission dismisses Comcast's claim that it was merely "delaying" BitTorrent traffic as "verbal gymnastics," specifically finding that "the company has engaged in blocking." Glad to see we can put that semantic debate to rest.
• The FCC sets out a standard for reviewing discrimination undertaken in the name of "reasonable network management": the "practice should further a critically important interest and be narrowly or carefully tailored to serve that interest." According to the FCC, even if congestion management was "critically important," Comcast's methods were hopelessly over- and under-inclusive. The Commission cited EFF's testing on this point, noting that Comcast admitted to blocking BitTorrent seeding without regard to neighborhood congestion or user-specific bandwidth usage.
• Also in accord with the comments submitted by EFF, the FCC called Comcast out for its failure to disclose its practices to its customers, noting that "Comcast's first reaction to allegations of discriminatory treatment was not honesty, but at best misdirection and obfuscation."
• The FCC spends 12 pages justifying its regulatory authority to issue the order, invoking its Title I "ancillary jurisdiction" to regulate in the name of "national Internet policy" as described in seven statutory provisions, all of which speak in general terms about "promoting deployment," "promoting accessibility," "reducing market entry barriers," and the like. Reading this section of the order, one can't help but feel sympathy for Commissioner McDowell, who in his dissent worries that "under the analysis set forth in the order, the Commission can apparently do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment." If Comcast sues to overturn the order, you can be sure that this is where it will focus its attack.
• And now for the remedy. Quoting Ronald Reagan's mantra, "trust but verify," the Commission has ordered Comcast to do 3 things within 30 days:
  

  (1) disclose to the Commission [but not the public?] the precise contours of the network management practices at issue here, including what equipment has been utilized, when it began to be employed, when and under what circumstances it has been used, how it has been configured, what protocols have been affected, and where it has been deployed;

  (2) submit a compliance plan to the Commission with interim benchmarks that describes how it intends to transition from discriminatory to nondiscriminatory network management practices by the end of the year; and

  (3) disclose to the Commission and the public the details of the network management practices that it intends to deploy following the termination of its current practices, including the thresholds that will trigger any limits on customers’ access to bandwidth.

So, while we continue to be worried about the future risk of regulatory capture of the FCC by large ISPs, and have our doubts about the Commission's authority to regulate the Internet, the order hits the nail on the head when it comes to analyzing what Comcast actually was up to.

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The FCC and Regulatory Capture

Earlier this month, Internet users welcomed the FCC's ruling against Comcast for interfering with BitTorrent uploads, celebrating the action as a victory for net neutrality. Reigning in Comcast's dishonest behavior was the right thing to do in this case, but many observers are worried that the FCC is establishing a dangerous habit of interfering with the Internet, especially since the FCC has a spotty history when it comes to serving the public.

For those looking for more background, a great panel discussion/podcast from the Technology Liberation Front explores the series of decisions that brought the FCC to the forefront of the net neutrality debate and covers why those decisions are unprecedented. Commenting on the FCC's action, law professor Susan Crawford writes:

The [FCC] is in completely uncharted waters, using this idea of 'ancillary authority' to carry out whatever it feels like. [...] Although in the short term condemning Comcast is certainly a good idea, the notion that case-by-case, wholly discretionary adjudications like this one are possibly a good idea for all aspects of internet policy is nuts.

But it is technology scholar and journalist David Robinson who reaches the root of the problem looming beyond the horizon: "[The Comcast decision] also preserves the Commission's ability to make bad choices in the future, especially if diminished public interest in the issue increases the odds of regulatory capture."

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FCC Rules Against Comcast for BitTorrent Blocking

On Friday, the FCC voted, 3-2, to punish Comcast for its surreptitious interference with BitTorrent uploads (a practice that EFF helped uncover and document in October 2007). The Commission adopted an order (text of which hasn't been released yet) finding that Comcast violated the neutrality principles set out in the FCC's 2005 "Internet Policy Statement." According to the statement released by FCC Chairman Martin, the order will require Comcast to disclose its practices and stop discriminating against BitTorrent traffic (Comcast, for its part, has already announced that it will be moving to different mechanisms to throttle high-bandwidth users.)

We're pleased that the FCC recognized that Comcast's behavior violated the Internet Policy Statement and could not be excused as "reasonable network management" -- we said as much in our comments to the FCC. We are particularly encouraged that the Chairman Martin specifically took Comcast to task for not adequately disclosing what it was up to -- for the free market to work, customers needs to know what they are buying.

But it's important to recognize that this is just the beginning, not the end, of the fight. The Commission made it clear that it intends to police this frontier of net neutrality on a case-by-case basis, responding to specific consumer complaints. In order to bring these kinds of complaints, however, concerned Internet users need more and better tools to detect ISP misbehavior. That's why EFF today announced the release of the Switzerland network testing tool, the second tool released by EFF's "Test Your ISP" project.

There is one aspect of Friday's FCC ruling, however, that seriously troubles us. Consider how the FCC got here. In 2005, without any authority or guidance from Congress, the FCC announced a "policy statement." Now, in 2008, it decided that it has the power to enforce the policy statement and announced an "enforcement framework" that will be applied to future complaints. Again, all this without authority or guidance from Congress. As Commissioner McDowell put it in his dissent from the Comcast order, "Under the analysis set forth in the order, the Commission apparently can do anything [to regulate the Internet] so long as it frames its actions in terms of promoting the Internet or broadband deployment." Can the FCC be trusted with that kind of power? Remember, historically, the FCC has been subject to "regulatory capture" -- in other words, over time, they end up doing the bidding of the very telecom giants they are supposed to be regulating.

So while there is a great deal to like about the Internet Policy Statement, and today the FCC appears to have come to the right conclusions about Comcast's behavior, what if the next "policy statement" turns out to be a disaster for net neutrality? After all, a polar bear makes a great bodyguard, until it decides to eat you.

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FCC Chairman Hints at Order Against Comcast

FCC Chairman Kevin Martin sent a signal today that the FCC may issue an order against Comcast in the wake of the scandal over their use of packet forgery to interfere with BitTorrent, Gnutella, and other Internet protocols.

EFF worked with Robb Topolski to run the first controlled tests of Comcast's RST forgery practices last year. We've been following the issue closely since then, and believe that Comcast's decision to switch to less discriminatory network management practices represented a victory for transparency, for an open network, and for common sense.

We are now waiting to see what precise steps the FCC decides to take. There is a lot at stake. On one hand, Comcast was clearly out of line. If ISPs decide that they can arbitrarily interfere with or degrade some of the applications that their users decide to run, they are giving themselves the power to veto or approve innovation on the Internet. Comcast was assigning
itself this veto power, and attempting to do so in secret.

On the other hand, we must be vigilant for unintended consequences from federal regulation of network management practices. Any rule that restricts the way the Internet can operate must be read upside down, backwards, and inside out to ensure that it won't turn out to prevent good engineering that nobody has thought of yet. We are also concerned that regulatory steps
by the FCC could stretch the limits of the Commission's statutory authority; we would feel more comfortable if Congress had clearly considered, allowed, and bounded FCC jurisdiction in this space.

Chairman Martin has indicated that he does not want to fine Comcast, but would order them to cease interference in a timely fashion, report on where and when interference has been occurring, and report on the details of their future traffic management plans. As specific outcomes, these are fair — and leadership to improve transparency is what we asked the FCC to provide — but the jursidictional issues will require careful analysis. The FCC is planning to vote on its actions on the 1st of August, and we'll follow up with more when there is precise language for an Commission decision.

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