I wanted to step away from writing technical posts for today and take a moment to look and think critically about the state of net neutrality. It's a topic that I find very important but also very polarizing. The polarization is a major issue as it seems to stem from advocates on one side or the other, with both sides having something to gain from a political victory. I feel the topic needs a closer examination and more precisely crafted governance. I'm writing this post as much to sort and understand my thoughts on the topic as I am to share with you, so let's talk a walk through it together.
The Title Bout
The centerpiece of the debate is title classification for ISPs. Title I classification is an information service classification, while Tittle II classification is a common carrier classification. Classifying things as Title II essentially allows them to be treated as common utilities. The distinction is important in that Title II gives the FCC more oversight and enforcement authority.
In the past, the FCC has attempted to enforce new rules against ISPs that were classified as Title I. Without boring you with the details, the issue was brought up on appeal and the FCC lost as Title I does not grant them the authority to dictate network practices that the ISPs use or govern how they conduct business from a technical standpoint. That's likely over simplified, but it is the crux of the matter. There is a back and forth fight as to whether ISPs should be classified as Title I or Title II. Both sides have merit, and both sides have some glaring issues.
Battle of the Titans
On each side of the issue we have a collection of titans. Each titan has something to personally gain. Internet Service Providers are fighting tooth and nail to hold a Title I classification. This gives them more creative control over their business. It allows them to charge more for large infrastructure consumers and allows them to moderate harmful traffic. However, it also allows them to potentially implement business practices that would be unfair to other businesses and, ultimately, consumers as it reduces options.
Sitting squarely on the other side of the debate are major powerhouse companies such as Netflix, Microsoft, Amazon and Google. They do so under the banner of an open and equal internet, however they have much to gain from a Title II classification. Netflix customers consume tremendous amounts of bandwidth and Netflix is a major contributor to data consumed around the world. Microsoft, Amazon and Google have similar skin in the game. They are all major cloud providers and want to ensure their services are consumable without extra cost to them.
Given these observations, there are two heavily weighted sides to the argument. The major advocates on each side have a lot to gain and a lot to lose. Additionally, they've been very successful at rallying support. So much so that we've completely lost our ability to be objective and look at the problem from different angles and consider additional solutions. We're led to believe that Title I and Title II are the only options. This is further compounded by the fact that our elected officials are very non-technical. They're also more likely to bend to the will of lobbyists than they are to seek out fair options.
The Trolley Problem (It's Really Not)
The debate between Title I and Title II classification treats our internet infrastructure like the trolley problem. If you're unfamiliar with the Trolley Problem, you can buzz over to Wikipedia for a pretty in depth explanation. Netflix is often used as the poster child for Title I classification with claims that it should be responsible for the vast amounts of data that its users consume and should pay ISPs for more bandwidth. In reality, the consumers choose what they use their bandwidth for and Netflix is the most popular. If it wasn't them, it would very likely be something else.
Looking back at the Trolley Problem though, the people against Title I classification put forth that by allowing Netflix to pay for bandwidth prioritization, you're sacrificing competitors (the 5 folks on the first track). Those against Title II classification essentially claim that by making things fair for the masses, the trolley is being diverted to the second track and will damage Netflix by not allowing expanded infrastructure to carry the load.
In reality, the problem is much more complicated. Both sides are technically correct and there is collateral damage to be had with both solutions. In this case, however, we have a bountiful supply if engineers standing at the ready, prepared to quickly build a third track down the middle that can obsolete the original two choices presented by the trolley problem.
We'll have problems, yeah, then we'll have bigger ones.
The fairest thing we can do is put an analytical eye on the topic. We have to look at the problems created from both sides of the argument. Let's talk about the issue of bandwidth prioritization first as it's the biggest point of contention.
The idea is that, under Title I classification, companies like Netflix could be given preferential treatment by allowing them to pay for priority bandwidth. The argument is often made that competitors and other traffic will be slowed down to accommodate additional bandwidth for Netflix. The real intention is that additional money paid by Netflix would be used to increase infrastructure and handle the additional bandwidth, without impacting the speed of other traffic. The real problem is that we really don't know what will happen.
Next there is the issue of bandwidth shaping and traffic modification. In the past, this has actually been an issue but it's a tough one to look at analytically. ISPs have decided to tell users how they can use the service that's they're paying for. They expressly prohibit running web and mail servers from home internet, for example. They reserve these capabilities for business customers. They also have been caught limiting or tampering with Torrent traffic. The latter is understandable in a way. While there is a fair amount of legitimate torrent traffic, the vast majority of it is used for illegal purposes such as pirating media and software and propagating the latest "leaked" celebrity sex tape.
The difficulty is that ISPs shouldn't be just blanket killing torrent traffic as they can't distinguish between legitimate and illegal traffic. Similarly, expressly denying ISPs the ability to participate in bandwidth shaping also prevents them from prioritizing traffic they know to be legitimate. An example of this would be a DDoS attack, or malware and rootkits that hijack users' machines and use them to blast SMTP spam. These things are important and should be considered when thinking about classification.
From damaged to damned control
Looking back at the issue, we can see that the FCC was wounded when the appeals process did not go in their favor. They needed additional control and oversight. Reclassification to Title II gave them this authority, but what do we really gain from Title II? In reality, we are taking a modern concept and attempting to shoehorn it into a classification that doesn't really fit the industry. With Title I, the ISPs have too much free reign and not enough oversight. With Title II, the FCC has all of the authority, but no new specific rules are applied.
Instead, we have a regulatory body that has the authority to essentially decide at any moment what they think is right and what isn't which lends a lot of credit to the argument that it stifles innovation. Additionally, it hasn't done much of anything to actually prevent bad behavior. For example, take a look at the shady behavior of Comcast. Despite Title II supposedly preventing ISPs from doing bad things, Comcast continues to inject code into content that you're consuming. This is bad on so many levels. Not only are they hijacking the response data, which is essentially a man in the middle attack, but they are injecting code so if one of their developers were to make a mistake, it could present a security risk!
But that's old hat
Title II wasn't designed for internet services any more than Title I was. It provides a very robust framework of rules, however most of them can't even be applied. It was designed to fit the model of traditional utilities and telecommunications. In fact, the FCC used a process known as forbearance to exempt ISPs from over 700 regulations defined in Title II. With so many regulations thrown out the window, it's clear to see that trying to fit modern concepts into older classifications is not any more appropriate than ignoring them altogether.
Just enough knowledge to know I don't know anything
Looking closely at both sides of the argument, it's easy to see that both approaches are essentially a wrecking ball. One allows a wild west style approach and gives ISPs free reign while the other employs an approach akin to Robert De Niro a la "Meet The Parents" approach of "I'm watching you" but with no real substance as there are no specific rules that are applied, leaving ISPs to speculate as to what would happen if they try X, Y or Z.
This puts ISPs in a difficult position. There are likely many new models and approaches they would like to try but there is a high degree of uncertainty as to whether they would be allowed. It's true that many of them are likely very anti-consumer tactics, while many of them are not. The point is that it creates a very high amount of risk that potentially outweighs the rewards and could be very costly, thus the industry somewhat stagnates.
Put down the wrecking ball
So what is the solution? That's a really tough question that deserves more tough questions asked of our elected officials and an even tougher and more thorough analysis of the impacts of each decision. Up to now, the two primary parties in power have used net neutrality as a political football. They successfully rallied the troops on each of their sides and raised the scruff of a whole lot of people.
What continues to surprise me the most is the abundance of really smart people, colleagues of mine and people that I greatly respect for their insightful tweets, blog posts and speeches, who continue to rally on the side of Title II classification. These are technologists who should be able to see that Title II has as many problems as Title I, just that they are different ones.
Title I is wrong and Title II is wrong. Neither of those classifications were designed for or fit a modern technology world. The FCC needs the ability to enforce regulation against ISPs. We need to allow for a free market to promote innovation and technical growth, but we also need regulation to prevent bad behavior. We need to be specific about what we're regulating. We need to allow bandwidth to be shaped in a way that it doesn't degrade services that people use the most, but we need to do so in a way that has no impact on other legitimate services. It should be network load specific and not source provider specific.
We also need expanded infrastructure. For years, ISPs have been allowed to collect extra taxes and fees for expanded infrastructure but they've done little to actually boost it significantly. There are some exceptions to this. CenturyLink is a good example. While not trouble free, they have been implementing direct-to-home fiber with Gigabit speeds and no bandwidth caps and they're very cost effective. I've had their fiber service to my home and it's been great, very reliable and very fast.
The only way we're going to be able to accomplish these things in a truly effective manner and with consumer interests in mind is to put down the wrecking ball we've been using to shovel ISPs into Title I or Title II classifications. We need a new classification that's designed for modern internet infrastructure. This new classification needs to treat ISPs as a utility, much as Title II does, because internet has become nearly essential, however it needs to be explicit in the rules that are applied to these ISPs so they know where the boundaries are, and consumers know exactly what to expect. We need to protect against anti-competitive behavior, content hijacking and broad service blocking, but we also need to allow certain types of traffic shaping to protect the overall health of internet infrastructure (such de-prioritizing spam traffic). The question is, how do we get our lawmakers on board?
Some people will surprise you with a real depth of feeling
I strongly believe net neutrality is needed, but I feel we need to be very intentional about how we implement it. Maybe there are more technologies out there that feel the way I do about it. Maybe there are many that just haven't thought about net neutrality outside of the scope of Title I vs Title II. Maybe some of you will comment and surprise me. I'd love to hear your thoughts. Agree with me, disagree with me, open up a dialog. As technologists, we are natural problem solvers and I feel this is one that we can actually solve together. Comment here or follow me on Twitter and strike up a conversation: @dustinhorne