Posted on Techdirt - 15 April 2014 @ 3:12am
While AT&T, Comcast, and Verizon have argued -- with incredible message discipline -- that network neutrality is "a solution in search of a problem," that's simply not true.
There are many concrete examples of network neutrality violations around the world. These network neutrality violations include ISPs blocking websites and applications, ISPs discriminating in favor of some applications and against others, and ISPs charging arbitrary tolls on technology companies.
We have seen network neutrality violations all over the world.
Even in the U.S., there have been some major violations by small and large ISPs. These include:
- The largest ISP, Comcast, secretly interfering with peer-to-peer technologies, including some of the most popular basic technologies used to distribute online TV and music (2005-2008);
- A small telephone ISP called Madison River blocking Vonage, a company providing competing telephone service online (2005);
- Apple blocking Skype on the iPhone, subject to a secret contract with AT&T, a company that competes with Skype in providing telephone service (2008-2009);
- Verizon, AT&T, and T-Mobile blocking the functionality of Google Wallet on Nexus devices, while all three of those ISPs are part of a competing mobile payments joint venture called Isis (late 2011- +today);
- and Comcast's disputes with Level 3 and Netflix over termination fees, and the appearance that Comcast is deliberately congesting its network connections to force Netflix to pay Comcast for an acceptable connection (2010- +today).
In other countries, including democracies, there are numerous violations. In Canada, rather than seeking a judicial injunction, a telephone ISP used its control of the wires to block the website of a union member during a strike against that very company in July 2005. In the Netherlands, in 2011, the dominant ISP expressed interest in blocking against U.S.-based Whatsapp and Skype.
In the European Union, widespread violations affect at least 1 in 5 users. That is the conclusion of a report issued in June of 2012
by the Body of European Regulators for Electronic Communications (BEREC
), a body composed of the regulatory agencies of each EU country. Most of these restrictions were on online phone services, peer-to-peer technologies (which are used not only by copyright pirates, but also in a variety of well-known technologies, including Skype and several Amazon cloud services), as well as other specific applications "such as gaming, streaming, e-mail or instant messaging service."
ISPs block and discriminate against applications and websites even in countries that require disclosure of the violations and even in countries with far more competition among ISPs than the U.S. A recent Oxford dissertation
on the topic explores the wide-scale blocking and discrimination in the United Kingdom, a market with both considerable competition among ISPs and robust disclosure laws.
Essentially, a specific rule that would be upheld in court
is necessary protect network neutrality and address a major, global problem.
* Footnote: Thanks to Stanford professor Barbara van Schewick, whose recent letter to the FCC inspired my thinking in this post.
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Posted on Techdirt - 16 March 2013 @ 12:00pm
With so many good posts this week, it's hard to select only a handful of favorites. Here are some stories that captured my attention. I chose an overall favorite and then one per day. They're all worth reading.
For those who don't know me, I'm a lawyer. I recently released a book called "On Internet Freedom," which focuses on what the First Amendment can teach us about Internet law. I spent a few years as a law professor and a few more years as an advocate on Internet policies--in line with Techdirt's general views on network neutrality, copyright expansion, unlicensed spectrum, CFAA, etc. I'm also interested in, and have written about, education reform efforts to increase the teaching of programming and entrepreneurship.
DailyDirt: The Future Of Higher Education Is Online
This post jumped out at me because the intersection of technology and education is an increasing interest for so many people. Organizations like Codecademy, General Assemb.ly, Dev Bootcamp, and new efforts like the Congressional Apps Challenge exemplify the growing importance of technology (including coding) to improving America's educational competitiveness. Still, these efforts are not without obstacles. I'm glad Joyce Hung picked out a few of the current stories on similar efforts and the problems they face. This is an important issue for us all and for future generations, so we should keep an eye on these efforts and learn what we can do to help make them successful.
Project Launched To Fix The Anti-Circumvention Clause Of The DMCA
The recent cell-phone unlocking push seemingly came out of nowhere to sweep the nation. As Mike points out, changing the law is not the open and shut case many assume it is. There are provisions in the DMCA that do some good, like the safe harbor provisions that (despite some copyright-holders' abuses) have become a crucial component of "the web that we know and love today." Nevertheless, the anti-circumvention provision of the DMCA is a real problem for innovation and antithetical to the idea that when we buy something we own it--known for centuries as "property rights." With a few different bills floating around the Hill right now on the subject, I'm hopeful that Congress will recognize the common-sense need for fixing Section 1201 and enact legislation to do so. It's also another example of average citizens coming together and successfully putting an issue on the public agenda.
Innovators Break Stuff, Including The Rules: How Gates, Jobs & Zuckerberg Could Have Been Targeted Like Aaron Swartz & Startups And Innovators Speak Out In Favor Of Fixing CFAA
If you read Techdirt with any regularity you're familiar with the problems of the Computer Fraud and Abuse Act and the urgent need for reform, as exemplified by the prosecution of Aaron Swartz. What's important about these posts is that they illustrate the scope of the problem -- many of today's leading companies would not be what they are today if their founding innovators had been hounded by prosecutors wielding the overbroad and vaguely worded CFAA. According to prosecutors, Congress has given them carte blanche to hound the tinkerers, the geniuses, the creators. According to them, since violating contractual or technical restrictions would be a crime, Zuckerberg should clearly be in prison for FaceMash, as seen in the early scene of The Social Network. As the second post rightly concludes, we need to step back and identify the harm we want to prevent, and approach CFAA reform efforts with that goal in mind. It also points out that several brave tech companies and coalitions joined the letter to urge reform, despite continued opposition from the likes of the DOJ, Oracle, Microsoft, and others (including perhaps Facebook). These include the Internet Infrastructure Coalition, Engine Advocacy, O'Reilly Media, Reddit, OpenDNS, Stack Exchange, and PadMapper. The law is broken, and must be fixed.
And yes, I selected two posts for this day, but they're on the same issue.
Why CISPA Could Actually Lead To More Hacking Attacks
Much of the focus on the Cyber Intelligence Sharing and Protection Act (CISPA) has been about the potential privacy harms, and rightly so. But the idea of permitting companies to engage in countermeasures in response to network intrusions is highly controversial, as even one of the bill's sponsors, Rep. Mike Rogers admits. Yet during the House Judiciary Committee hearing Wednesday on the CFAA and "Investigating and Prosecuting 21st Century Cyber Threats," Rep. Louie Gohmert suggested it might be a good idea to amend the CFAA to permit companies and individuals to "hack back" against "hackers" intruding on their systems. While not mentioned in the post, Professor Orin Kerr, a witness at the hearing, indicated that the idea could lead to complications, especially given the problem of attribution. Still, Rep. Gohmert appeared undeterred. The clear disconnect between Rep. Rogers and Rep. Gohmert on this matter indicates there may be a long way to go before any sensible agreement can be made on cybersecurity legislation.
Virginia ISP Locks Customers Into 25-75 Year Contracts; Sues Everybody When Monopoly Threatened
One of the more galling aspects of this story is that many people felt compelled to purchase another broadband service, and consequently paid two fees because they had no other option. And rather than assuaging the concerns of their customers by improving the service in question, OpenBand spent millions on litigation to protect these contracts. I anticipate Techdirt will continue to follow the story, and hope that the community is successful in dealing with OpenBand's reprehensible behavior. There is a reason why cable and phone ISPs are so unpopular--because of concentrated markets, in many areas, these companies can gouge users with high prices, bad service, unfair contract limitations, and (sometimes) creepy spying.
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