Wednesday, October 21, 2009

CRTC Indecision on Net Neurtality ("Throttling")

With respect, I cannot share the enthusiasm of Michael Geist, etc. for today's CRTC decision on Net Neutrality ("Throttling").

True, the CRTC agreed with the overall principles of net neutrality propounded by its exponents, which allows for network management subject to rational, justifiable and not overly restrictive network management by the ISPs. But the decision basically leaves the effective responsibility of enforcement of these principles in the hands of consumers via a complaint mechanism, ensuring years more of litigation, delay and full employment for the lawyers involved. One can be reasonably confident that individual complaints by individual users will not easily or quickly move the huge edifice of the CRTC and the major ISPs.

In the short term, the only thing that will change for Canadian consumers will be they will learn with more transparency more details of why they have some of the worst internet service in the world at some of the highest prices. More transparency will not promote more competition in the market because there is no real competition in an essentially duopolistic market with now virtually insurmountable barriers to new entry.

The CRTC once again accepted at apparent face value that congestion was a fact. This should have required extensive review of the extensive evidence, much of which was cloaked with confidentiality. This should have been a key and reasoned conclusion. Once again, network congestion has been regarded as a premise.

Moreover, once again, the fact that most Canadian consumers are faced in reality with a choice between two duopolists was glossed over. The third party independent ISPs who must depend on one of the duopolist's backbones cannot compete on service in any meaningful way.

The decision glosses over the P2P issue, which is the elephant in the room. Leaving aside the inconvenient question of whether downloading of music is legal in Canada by reason of the levy scheme, and even conceding that the unauthorized downloading of entire copyright protected movies would normally be illegal, there still remains the fact that P2P technology has fantastic innovative potential for the authorized distribution of software, movies, music and other “big” files. In the language of a landmark US case, it has “substantial non-infringing uses.” The CBC has, to its credit, tried to use it but was thwarted by throttling. This decision will leave P2P under a serious cloud that will hinder innovation. This should not be the case. The question of unauthorized downloading and file sharing is a complex and important one, but it should not be solved or even dealt with at the CRTC.

So - the CRTC perhaps outlined the right principles today. But it did little to make them a reality. "Placing the onus squarely on consumers" as Michael puts it simply won't work. Given the likely lawyering involved, complaints could take years to resolve. And we're talking about the in internet here, which evolves, even when throttled, much faster than the CRTC can move. There is an old maxim in law that “There is no right without a remedy. Ubi jus ibi remedium.”

Given the enormity of this hearing (it was really the second major proceeding) and all the efforts that went into it, the decision could have and should have decided much more.

Let's see whether tomorrow's announcement from the FCC in Washington is bolder, more decisive and more innovative. I'm betting that it will be.



  1. Howard, I think you raise excellent points - it is disappointing that we did not get a strong and clear ruling on whether ISPs can discriminate against P2P or any application for that manner. However, the CRTC did set out a clear framework for assessing such matters and in the proceeding itself, all but one of the incumbents that throttle P2P felt such a test would be overly restrictive and would capture the type of ITMPs they're employing.

    Putting the onus on consumers to complain is onerous as well, and time/resource consuming, without a question. But on the other hand the CRTC had a lot of ISPs before it with varying practices, not all of which were directly addressed on the record of the proceeding.

    Certainly, the US has gone further faster, but they are alone in the world on that. As much as it feels wrong to do, I think a little faith in the CRTC may be rewarded down the road here. The framework they put in place is similar to that called for by US NN legislation, and by the FCC itself. It could just be a matter of applying it.


  2. In the case of time-sensitive audio or video traffic (i.e. real-time
    audio or video such as video conferencing and voice over Internet
    Protocol (VoIP) services), ITMPs that introduce delays or jitter15 are
    likely to cause degradation to the service. The Commission considers
    that when noticeable degradation occurs, it amounts to controlling the
    content and influencing the meaning and purpose of the
    telecommunications in question.

    Streaming movies are ostensibly time-sensitive video but this foremost
    case is curiously omitted from the examples. Does the "real-time"
    qualifier apply to the production or the reception of the data? I
    think a reasonable person would presume the latter. In practice it
    doesn't matter (see below) but in policy it should serve as a reason
    to be unreliant on the government to solve the people's problems.

    What seems to have eluded the commission is that you can't distinguish
    the usage mode of data traffic: in general you can't discern data that
    is meant to be used as real-time versus stored for later use. The
    relevant example in this case is streaming P2P traffic versus
    non-streaming traffic which can be indistinguishable from one another
    (c.f. Tribler which simply uses Bittorrent to retrieve the file in
    order). So if you allow streaming P2P video, which the rule apparently
    does, you can't block any Bittorrent traffic! Worse (at least if you
    wear a top hat and monacle), you can't, against colluding
    communicators, identify the "real" contents of traffic accurately in
    any case. How can you identify a streaming movie that is sent as a
    teleconference if is encrypted? How do you identify encrypted P2P
    traffic sent over HTTP?

    Currently Bell is throttling all unidentifiable (i.e. encrypted)
    traffic. The CRTC order effectively says that they can't do that
    because the data will sometimes contain time-sensitive information.

    The lesson is that you cannot control the content of digital
    communication with any degree of granularity. You either permit
    everything or allow nothing. Because nothing private is identifiable
    and everything pried is tyrannical.

    The irony is this ruling is inconsequential. Actualization of the
    people's goals still depends on them to wield technology in
    the same manner as it did before in order to empower themselves and
    exercise their agency. Only disguising their traffic is required, the
    order doesn't change this.

    The tragedy is that the people throw themseleves at the mercy of the
    state when, for the first time in history, they are capable of
    peaceful, massive collaborative self-determination. Everything they
    need is right before their hands, only cursory effort is required. And
    yet nothing! The tyrant's only saving (dis-)grace.

  3. Dear Mr. Knopf:

    Yesterday was the first time I've seen your blog, but it won't be the last. Thank you for being one of the few to understand how absolutely hollow the "complaint" concept is.

    As an ordinary person, I have no way of knowing if my connection is slow because its throttled or if its just slow because it is a lousy connection. And at this point I'm getting to be fairly well informed about all this technical stuff, but most ordinary consumers will have even less idea than I.

    How will we know if we should complain? Even if we do, most consumers are not in a position to be able to hire a lawyer to fight if even if we do have a credible complaint.

    Thank you also for raising the congestion issue. The first time anyone said anything about internet congestion was when Bell was "caught" throttling the Independent ISPs customers. Sure, they were also in the midst of launching a pay-per-use unthrottled download service at the time, but they cited internet congestion as the reason for throttling. And that's the story they've stuck to.

    As long as P2P and BitTorrent is legal, singling out customers who chose to use these protocols is at best discriminatory. As you pointed out there are all kinds of legal uses for P2P, precisely because P2P is an exceedingly efficient usage of internet bandwidth.

    In any other field of endeavor deliberately shortchanging the customer for the goods or services the customer is paying for would be considered fraud. I don't understand how this can possibly be considered acceptable.

    I am particularly annoyed by Anonymous #1's easy exclusion of consideration for consumers, in precisely the same way that the CRTC seems to.

    Internet consumers should be given the same consideration as ISPs. Maybe even more since the CRTC's mandate is to safeguard the Canadian marketplace for Canadian consumers. The fact that they so flagrantly ignore us is reflected in the job they do "on our behalf". The CRTC has abdicated any right they may have had to Canadian consumer "faith".

    The worst is that CRTC is leaving everything up to the Internet carriers. They can do whatever they like as long as they think they have to, so long as they tell us before they gouge.