If you've been following the network neutrality debate over the last few months (and we certainly hope that you have), you've likely heard about Comcast's BitTorrent blockade, which was first revealed in an AP story all the way back in October. After months of pestering, FCC chairman Kevin Martin announced that his agency would open up a formal investigation into Comcast's network management practices, though it's still anyone's guess as to what the final outcome will be.
The crux of the investigation will be the manner in which the FCC chooses to interpret its own 2005 Internet policy statement (PDF link), which encourages openness and network neutrality while providing an exemption for “reasonable network management.” What does “reasonable” mean? Only the FCC knows.
For its part, Comcast feels that it is operating within the boundaries set by the FCC in 2005. “We believe our practices are in accordance with the FCC's policy statement on the Internet where the Commission clearly recognized that reasonable network management is necessary for the good of all customers,” Comcast executive VP David L. Cohen said in a statement back in January.
Public Knowledge, however, disagrees. Regardless of how “reasonable” Comcast feels that its network management is, the fact of the matter is that such a regulation of traffic discriminates against specific users and applications, thereby compromising the neutrality of the network. While there is no shortage of alternative methods that could be employed to boost network performance, Comcast's current technique violates both FCC policy and the core principles of network neutrality.
“Network management” isn't the only justification that's been given for Comcast's actions, however. While the company has yet to admit to specifically targeting BitTorrent traffic, some have justified Comcast's approach to network management by recasting it in a new light: as an attempt to curb piracy. There are a few problems with this interpretation as well, however. Foremost is the fact that there are plenty of legitimate uses for BitTorrent, like downloading open-source software or accessing music available under a Creative Commons license. Even major studios like Fox, Paramount and MTV use BitTorrent to commercially distribute video content, a service that directly competes with some of Comcast's other offerings (more on that later). By blocking BitTorrent traffic, Comcast is preventing its customers from utilizing their Internet connection for these legitimate uses–uses that those customers never agreed to relinquish. And really, that's beside the point: as an ISP, Comcast has no more authority to decide what you can do with you Internet connection than Microsoft has to decide what you can do with your computer, regardless of how legal your pursuits are deemed to be.
So, what does the FCC make of all of this? Where the Commission's loyalties lie on the issue of network neutrality has always been unclear. However, a stray comment made by FCC Commissioner Jonathan Adelstein at a symposium on Internet video policy last week offered a rare glimpse into the FCC's thought process. While the FCC supports some form of legislation that would enforce network neutrality, the proposals that are currently being considered include “exemptions for illegal activities.” According to Adelstein, the FCC will be “very careful about the use of the Internet for illegal purposes, and that includes the illegal downloading of copyrighted works, which is a very serious problem.” He went on to point out that “The problem is, how can you ever tell what's illegal?”
That is the problem now, isn't it? As we've seen in the past, just because an ISP/industry group/copyright owner thinks that it is targeting pirates, doesn't mean that is necessarily is. Just look at Comcast: it is believed that the company used packet-spoofing software in an attempt to derail BitTorrent downloads but as an unintended side-effect, ended up disabling some groupware features in IBM's Lotus Notes as well. Lotus Notes is a business-critical application for many enterprises and you can bet that many of Comcast's corporate customers were none too happy about this. Despite this fact, the FCC could ostensibly interpret Comcast's actions as a genuine attempt to regulate illegal activities, if it so desired.
And what then? Well, Comcast would then be empowered to both police and filter its network. And if that happens, it won't just be BitTorrent users that feel the squeeze. Remember that Comcast sells products other than cable Internet, including VoIP telephone service and cable television. If Comcast is allowed to manage its network by blocking certain applications, what will stop the company from choking competing services like Skype and YouTube? Or from creating a tiered Internet where the price a user pays correlates to the specific sites and services he or she wishes to access?
As you can see, the nature of the FCC's verdict in this investigation could have widespread ramifications, setting a precedent for the Commission's future rulings on network neutrality. At the moment, the question seems to be whether the FCC will choose to utilize a strict interpretation of its Internet policy guidelines or if it will stretch those guidelines to accommodate certain types of network discrimination under the guise of anti-piracy measures. While Public Knowledge hopes that it's the former, Comcast is surely lobbying for the latter.