“Net Neutrality”

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The Cinternet is Donnie Hao Dong’s name for the Chinese Internet. Donnie studies and teaches law in China and is also a fellow here at Harvard’s Berkman Center. As Donnie sees (and draws) it, the Cinternet is an increasingly restricted subset of the real thing:

map[19]

He calls this drawing a “map of encirclement.” That last noun has a special meaning he explains this way:

“The Wars of (anti-)Encirclement Compaign” were a series battles between China Communist Party and the KMT‘s Nanjing Gorvernment in 1930s. At the time the CCP established a government in south-central China (mostly in Jiang Xi Province). The KMT’s army tried five times to attack and encircle the territory of CCP’s regime. And The CCP’s Red Army was almost defeated in the Fifth Encirclement War in 1934. The Long March followed the war and rescued CCP and its army.

Encirclement is more than censorship. It’s a war strategy, and China has been at war with the Internet from the start.

But while China’s war is conscious, efforts by other countries to encircle the Net are not. To see what I mean by that, read Rebecca MacKinnon‘s Are China’s demands for Internet ‘self-discipline’ spreading to the West? Her short answer is yes. Her long answer is covered in these paragprahs:

To operate in China, Google’s local search engine, Google.cn, had to meet these “self-discipline” requirements. When users typed words or phrases for sensitive subjects into the box and clicked “search,” Google.cn was responsible for making sure that the results didn’t include forbidden content.

It’s much easier to force intermediary communications and Internet companies such as Google to police themselves and their users than the alternatives: sending cops after everybody who attempts a risque or politically sensitive search, getting parents and teachers to do their jobs, or chasing down the origin of every offending link. Or re-considering the logic and purpose of your entire system.

Intermediary liability enables the Chinese authorities to minimize the number of people they need to put in jail in order to stay in power and to maximize their control over what the Chinese people know and don’t know.

In its bombshell announcement on Jan. 12, Google cited massive cyber attacks against the Gmail accounts of human rights activists as the most urgent reason for re-evaluating its presence in China. However, the Chinese government’s demands for ever-increasing levels of censorship contributed to a toxic and unsustainable business environment.

Remember that phrase: intermediary liability. It’s a form of encirclement. Rebecca again:

Meanwhile in the Western democratic world, the idea of strengthening intermediary liability is becoming increasingly popular in government agencies and parliaments. From France to Italy to the United Kingdom, the idea of holding carriers and services liable for what their customers do is seen as the cheapest and easiest solution to the law enforcement and social problems that have gotten tougher in the digital age — from child porn to copyright protection to cyber-bullying and libel.

I’m not equating Western democracy with Chinese authoritarianism — that would be ludicrous. However, I am concerned about the direction we’re taking without considering the full global context of free expression and censorship.

The Obama administration is negotiating a trade agreement with 34 other countries — the text of which it refuses to make public, citing national security concerns — that according to leaked reports would include increased liability for content hosting companies and service providers. The goal is to combat the global piracy of movies and music.

I’m not saying that we shouldn’t fight crime or enforce the law. Of course we should, assuming that the laws reflect the consent of the governed. But let’s make sure that we don’t throw the baby of democracy and free speech out with the bathwater, as we do the necessary work of adjusting legal systems and economies to the Internet age.

Next, What Big Content wants from net neutrality (hint: protection), by Nate Anderson in Ars Technica. According to Nate, more than ten thousand comments were filed on the subject of net neutrality with the FCC, and among these were some from the RIAA and the MPAA. These, he said, “argued that the FCC should encourage ISPs to adopt ‘graduated response’ rules aimed at reducing online copyright infringement”, and that they “also reveal a content-centric view of the world in which Americans will not ‘obtain the true benefits that broadband can provide’ unless ‘copyrighted content [is] protected against theft and unauthorized online distribution’”. He continues,

What could graduated response possibly have to do with network neutrality? The movie and music businesses have seized on language in the FCC’s Notice of Proposed Rulemaking that refuses to extend “neutrality” to “unlawful content.” The gist of the MPAA and RIAA briefs is that network neutrality’s final rules must allow for—and in fact should encourage—ISPs to take an active anti-infringement role as part of “reasonable network management.”

Not that the word “infringement” is much in evidence here; both briefs prefer “theft.” The RIAA’s document calls copyright infringement “digital piracy—or better, digital theft,” and then notes that US Supreme Court Justice Breyer said in the Grokster case that online copyright infringement was “garden variety theft.”

To stop that theft, the MPAA and RIAA want to make sure that any new FCC rules allow ISPs to act on their behalf. Copyright owners can certainly act without voluntary ISP assistance, as the RIAA’s lengthy lawsuit campaign against file-swappers showed, but both groups seem to admit that this approach has now been hauled out behind the barn and shot.

According to the RIAA, “Without ISP participation, it is extremely difficult to develop an effective prevention approach.” MPAA says that it can’t tackle the problem alone and it needs “broadband Internet access service providers to cooperate in combating combat theft.”

“No industry can, or should be expected to, compete against free-by-theft distribution of its own products,” the brief adds.

“We thus urge the Commission to adopt rules that not only allow ISPs to address online theft, but actively encourage their efforts to do so,” says the RIAA.

And that’s how we get the American Cinternet. Don’t encircle it yourself. Get the feds to make ISPs into liable intermediaries forced to practice “self discipline” the Chinese way: a “graduated response” that encircles the Net, reducing it to something less: a spigot of filtered “content” that Hollywood approves. Television 2.0, coming up.

Maybe somebody can draw us the Content-o-net.

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I just posted Rupert Murdoch vs. The Web, over at Linux Journal. In it I suggest that the Murdoch story (played mostly as Bing vs Google) is a red herring, and that the real challenge is to free the Web and ourselves from dependencies from giant companies I liken to volcanoes:

We’re Pompeians, Krakatoans, Montserratans, building cities and tilling farms on the slopes of active volcanoes. Always suckers for stories, we’d rather take sides in wars between competing volcanoes than build civilization on more flat and solid ground where there’s room enough for everybody.

Google and Bing are both volcanoes. Both grace the Web’s landscape with lots of fresh and fertile ground. They are good to have in many ways. But they are not the Earth below. They are not what gives us gravity.

I think one problem here is a disconnect between belief systems about markets, and the stories that arise from them.

One system believes a free market is Your Choice of Captor. In this camp I put both the make-it/take-it mentality (where “winners” are rewarded and “losers” punished) of the Wall Street Journal (which a few months ago looked upon the regulated duopolies for Internet access as the “free market” at work) and those who see business (or corporations, or capitalism, or all three) as a problem and look to government — another monopoly — for remedy from these evils in the marketplace. In other words, I lump both the left and the right in here, along with the conflicts between them.

The other system sees markets as settings for human activity: the locations, both real and virtual, where people and their organizations meet to do business, make culture, and build civilization. Here I put nearly everybody who contributed the structural agreements that made the Internet possible, and who truly understand what it is and how it works, even if they can’t all agree on what metaphors to use for it. I also include all who have contributed, and continue to contribute, to the free and open code bases with which we are building out our networked world. While political beliefs among members of this system may sort somewhere along the right-vs.-left axis, what they do to build the world is orthogonal to that axis. That’s one big reason why that work escapes notice.

The distinction I see here aligns well with Virginia Postrel‘s contrast between “stasists” and “dynamists”. The difference is that much of what gets done to make the networked world (and to support its dynamism) isn’t “dynamic” in the active and dramatic sense of the word — except in its second-order effects. For example, SMTP and IMAP are not dynamic. (Being mannerly technical agreements, protocols don’t do that.) But on those protocols (and related ones) email happened, and the world hasn’t been the same since.

With that distinction in mind, I suggest that too much oxygen suckage is wasted on “wars” between the stasists (some of whom are also into the superficially dynamistic attention-suck of vendor sports — here’s an oldie but goodie that still makes my point), and not enough on constructive work done by geeks and entrepreneurs who quietly build the original and useful stuff that serves as solid infrastructure on which countless public goods (including wealth creation beyond measure) can be generated.

We have the same problem in most net neutrality arguments. The right hates it, the left loves it. One looks to protect the “free market” of phone and cable companies (currently a Your-Choice-of-Captor system) while the other looks to government (meet your new captor) for relief. When in fact the whole thing has happened all along within what Bob Frankston calls The Regultorium.

The primary dynamism of the Internet — what gave us the Net in the first place, and what holds the most promise in the long run — doesn’t just come from those parties, and can’t be found in the arguments they’re having. It comes from low-box-office geekery that supports enormous new business opportunities (along with many public benefits, with or without business).

It’ll take time to see this, I guess. Just hope we don’t drown in lava in the meantime.

Bonus red herring: A lot of news really isn’t.

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So the Wall Street Journal runs Google Wants Its Own Fast Track on the Web, by Vinesh Kumar and Christopher Rhoads. It’s dated today, but hit the Web yesterday. Among other things it says,

Google Inc. has approached major cable and phone companies that carry Internet traffic with a proposal to create a fast lane for its own content, according to documents reviewed by The Wall Street Journal. Google has traditionally been one of the loudest advocates of equal network access for all content providers.

At risk is a principle known as network neutrality: Cable and phone companies that operate the data pipelines are supposed to treat all traffic the same — nobody is supposed to jump the line.

I declined to post on this yesterday because I suspected that this was simply a matter of edge caching: locating services as close to users as possible, to minimize network latencies and maximize accessibility. Akamai‘s whole business is based on this kind of thing. Much of what we now call the “cloud” — including conveniences provided by Google, Amazon, Microsoft and others — are back-end utilities that benefit from relative proximity to users. It’s all part of what Nick Carr calls The Big Switch.

As Richard Whitt of Google puts it here,

Edge caching is a common practice used by ISPs and application and content providers in order to improve the end user experience. Companies like Akamai, Limelight, and Amazon’s Cloudfront provide local caching services, and broadband providers typically utilize caching as part of what are known as content distribution networks (CDNs). Google and many other Internet companies also deploy servers of their own around the world.

By bringing YouTube videos and other content physically closer to end users, site operators can improve page load times for videos and Web pages. In addition, these solutions help broadband providers by minimizing the need to send traffic outside of their networks and reducing congestion on the Internet’s backbones. In fact, caching represents one type of innovative network practice encouraged by the open Internet.

Google has offered to “colocate” caching servers within broadband providers’ own facilities; this reduces the provider’s bandwidth costs since the same video wouldn’t have to be transmitted multiple times. We’ve always said that broadband providers can engage in activities like colocation and caching, so long as they do so on a non-discriminatory basis.

All of Google’s colocation agreements with ISPs — which we’ve done through projects called OpenEdge and Google Global Cache — are non-exclusive, meaning any other entity could employ similar arrangements. Also, none of them require (or encourage) that Google traffic be treated with higher priority than other traffic. In contrast, if broadband providers were to leverage their unilateral control over consumers’ connections and offer colocation or caching services in an anti-competitive fashion, that would threaten the open Internet and the innovation it enables.

But there is a political side to this. The WSJ is playing the Gotcha! game here, “catching” Google jumping “the line” across which its postion on Net Neutrality is compromised. According to Whitt, it’s not.

Net Neutrality as a topic is complex and politically charged. One can argue with Google’s position on the topic. But I don’t believe one can argue that edge caching deals are a compromise of that position, simply because these deals are nothing new, and do nothing to squeeze other companies out of doing the same kind of thing (so long as Google doesn’t make the deals exclusive, which it says it’s not doing).

Hat tip to my colleague Steve Schultze, who is on top of this stuff far more than I am.

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