The FCC on Net Neutrality

Imagine an alternative reality in which you attempt to do a routine online search. In this Bizarro World, your Internet service provider (which happens to be one of the four top dogs: Comcast, AT&T, Verizon or Time Warner) has a deal with Yahoo, but not Google. You try your search on Google first but notice the page loads very slowly. Impatient, you try again on Yahoo, which is running noticeably faster. Over time, you default to Yahoo's apparently faster search engine whenever you look something up.

Welcome to one vision of a world without "Net neutrality." In the neutral Internet of today, we're accustomed to accessing any Web site at any time, at the fastest speed available. This applies to corporate sites as much as it does to start-ups and individuals. For now the virtual playing field is fairly level.

But that could change. Internet service providers want the authority to speed up or slow down the delivery of Web content depending on what business arrangement they may or may not have with a certain site. That's not in keeping with the principles of Net neutrality, says the Save the Internet Coalition. Before your eyes completely glaze over, activists and academics want you to take note. "I hope people understand why this is so significant," says Lawrence Lessig, founder of Stanford Law School's Center for Internet and Society. "The whole question is whether people will feel confident to innovate and build products and content for the Web without the fear that the network owner will pull the plug."

For example, Lessig argues, if Comcast were to deliberately slow the upload time for applications like BitTorrent, which lets users exchange large files such as videos (and, as such, can be viewed as a competitor to Comcast's on-demand movie business), the company would be competing unfairly and violating the integrity of a democratic Internet. It would also encroach upon the privacy of Comcast's customers, critics say, because the service provider would need to peek at their customers' transmissions in order to know which ones to slow down. Unfortunately this is precisely what Comcast has been doing. The Internet provider claims that delaying peer-to-peer file-sharing is necessary to offset congestion across the network, which can slow down other people's connections.

In what may be a watershed moment for the Net neutrality debate, on Monday the Federal Communications Commission held a public hearing at Harvard Law School to determine whether Comcast was manipulating its network traffic in a "reasonable" manner. (Watch it here.) "There wasn't a lot of argument over the facts of the case: they were slowing down BitTorrent," says David Weinberger, a research fellow at Harvard Law School's Berkman Center for the Internet & Society. "The question is: is this a violation of policy, and if so what happens to Comcast and more importantly what happens to the policy?" A spokesman for the FCC would not speculate on when the commission would issue a decision. Also this week, New York Attorney General Andrew Cuomo issued a subpoena asking Comcast for "information" (a Cuomo spokesman declined to elaborate to NEWSWEEK).

Some have argued that such network manipulation could hurt Comcast competitors. Vuze, a company that delivers high-resolution video online to 20 million customers in partnership with networks such as PBS, Showtime and A&E, could potentially suffer if Comcast were to slow down or block uploads. "We're a reluctant poster child" for the Net neutrality movement, says Vuze CEO Gilles BianRosa, who testified at the hearing. "Somebody's upload is somebody else's download. If they slow down an upload of a PBS show, you, the user, will experience a degradation. Comcast was opaque and discriminating against a class of applications. Today it was BitTorrent, maybe tomorrow it will be Flash." A spokeswoman for Comcast declined to speak on the record to NEWSWEEK, but at Monday's hearing, Comcast executive vice president David Cohen told the FCC that the company "does not block any Web site, application or Web protocol, including peer-to-peer services, period. What we are doing is a limited form of network management objectively based upon an excessive bandwidth-consumptive protocol during limited periods of network congestion."

Perhaps, but don't expect this to be the last you hear on the topic. "The hearing was a good kickoff to a national debate on the issue of Net neutrality," Rep. Ed Markey, a Massachusetts Democrat, tells NEWSWEEK. "An open architecture was baked into the Internet from its inception. It's a wide-open, kinetic, entrepreneurial technology. That is what has allowed this information revolution to occur in a very brief time." Earlier this month, Markey cosponsored a bipartisan bill called The Internet Freedom Preservation Act. The bill doesn't use the word "neutrality," but it would require the FCC to "assess competition, consumer protection, and consumer choice issues related to broadband Internet access services."

But is legislation the answer? Even the most ardent proponents of Net neutrality are a bit wary on that score. "The devil's in the details," says David P. Reed, a professor at MIT's Media Lab and member of the original team that designed the Internet protocols. "It would not be in the interest of the Internet to highly regulate it. You might slow down innovations ... But you can't quite depend on competition [either]. The best way to trust businesses is when they're being held in check by customers." This, of course, requires transparency--which is something Comcast sorely lacked, Reed is quick to add. In his statement to the FCC on Monday, Comcast's Cohen echoed the other large service providers when he claimed that making Net neutrality the law would stifle innovation and competition. "The government does not have the expertise or resources to second-guess each of the thousands of network-management decisions engineers make every day," he said, "much less to make those decisions at a pace that is consistent with the dynamic and vibrant nature of the Internet marketplace and technologies." Markey says he hopes his bill will allow this discussion to play out on a national stage.

In the meantime, the Comcast case has developed one small, ironic--some might even say symbolic--wrinkle: on the day of the FCC hearing, the company admitted to paying people to fill spectator seats, effectively blocking access to folks who genuinely wanted to be there. A geeky wag might call it an analog denial of service attack. "What the Comcast behavior really demonstrates is that there's really little reason to trust this organization," says Stanford's Lessig. "They can throw out technical reasons for why they're [slowing BitTorrent uploads]. But packing the auditorium at an FCC hearing? Why would you trust the future of the Internet to this sort of entity?"

You probably wouldn't. But exactly who does decide the Internet's future won't be determined for several months--at the earliest--as the FCC deliberates and Markey's bill works its way through Congress. Meanwhile, upload with care.