Tag: Net Neutrality

Net Neutrality Roundup #2

Yesterday I discussed Ajit Pai's plan to dismantle the FCC's net neutrality regulations, his disingenuous justifications for doing so, and the inevitability of lawsuits challenging the change in court. We left off on Tim Wu's observation that Pai is doing this in opposition to the vast majority of public opinion.

The FCC comment period concerning the net neutrality repeal saw 22 million comments; it received a greater response than any other FCC proposal in history.

While Pai has openly acknowledged that he doesn't care about the quantity of pro-Title II comments, he has also, disingenuously, drawn a false equivalence between the number of pro- comments and the number of anti- comments. Jon Brodkin at Ars Technica notes:

Pai [...] released a "Myth vs. Fact" sheet that claims public comments to the FCC don't show significant support for net neutrality. Pai's office called it a "myth" that commenters "overwhelmingly want the FCC to preserve and protect net neutrality," arguing that fraudulent comments far outnumber legitimate ones.

That's true largely because the FCC imposed no real restrictions on comment uploads and took no steps to remove fraudulent comments from the record. But analyses of comments show that about 98 or 99 percent of "unique" comments oppose the net neutrality repeal.

That last link goes to an article by Jeff Kao at Hackernoon titled More than a Million Pro-Repeal Net Neutrality Comments were Likely Faked. Here are a couple lines from the abstract:

My research found at least 1.3 million fake pro-repeal comments, with suspicions about many more. In fact, the sum of fake pro-repeal comments in the proceeding may number in the millions. In this post, I will point out one particularly egregious spambot submission, make the case that there are likely many more pro-repeal spambots yet to be confirmed, and estimate the public position on net neutrality in the “organic” public submissions.

Kao goes on to chart the duplicate versus unique comments:

Chart of trends in FCC comments

Keep-Net Neutrality comments were much more likely to deviate from the form letter, and dominated in the long tail.

From this chart we can see that the pro-repeal comments (there are approximately 8.6 million of them) are much more likely to be exact duplicates (dark red bars) and are submitted in much larger blocks. If even 25% of these pro-repeal comments are found to have been spam, that would still result in more than 2 million faked pro-repeal comments, each with an email address attached. Further verification should be done on the email addresses used to submit these likely spam comments.

On the other hand, comments in favor of net neutrality were more likely to deviate from a form letter (light green, as opposed to dark green bars) and were much more numerous in the long tail. If the type, means of submission, and ‘spamminess’ of comments from both sides were equal, we would expect a roughly even distribution of light and dark, red and green, throughout the bars. This is evidently not the case here.

Kao has gone to more trouble than Pai to try and tell spam comments from legitimate ones. Indeed, New York AG Eric Schneiderman has accused the FCC of stonewalling his investigation into FCC comments using fraudulent names and addresses. And he's not the only one investigating:

Schneiderman is not the first to accuse the FCC of stonewalling investigations into the net neutrality comment system. The FCC's claim that the comment system was temporarily disrupted by DDoS attacks has received lots of attention, but the FCC hasn't provided all the records requested in several Freedom of Information Act (FoIA) requests.

The FCC also told members of Congress that it won't reveal exactly how it plans to prevent future attacks on the public comment system.

A FoIA request from Ars was denied by the FCC due to "an ongoing investigation."

US Senator Ron Wyden (D-Ore.) criticized the FCC for failing to turn over its internal analysis of the DDoS attacks that hit the FCC's public comment system. Senator Brian Schatz (D-Hawaii) and Rep. Frank Pallone (D-N.J.) requested an independent investigation into the DDoS attacks, and the US Government Accountability Office (GAO) has agreed to investigate.

The FCC is also facing a lawsuit alleging that it ignored a FoIA request for data related to bulk comment uploads, which may contain comments falsely attributed to people without their knowledge.

So are there any other ways the FCC's terrible plan is vulnerable to litigation?

Why yes. Yes there are. Because it also prevents states from passing their own net neutrality laws.

And there's legal precedent stating that the FCC can't preempt state laws -- ironically, decided in a case where Tom Wheeler's FCC attempted to prevent states from passing laws against municipal broadband.

These are just some of the avenues of attack Pai has opened himself up to. The question isn't whether there will be lawsuits after the net neutrality repeal; it's how many and how soon.

Net Neutrality Roundup #1

Ajit Pai has announced, expectedly, that he intends to vote to kill the FCC's Title II net neutrality regulations on December 14.

As I've discussed previously, this was a foregone conclusion, but the point was never to change Pai's mind; there are, after all, two whole branches of government besides the one he serves in.

Tim Wu (the man who coined the phrase "Network Neutrality") discusses one of those branches in a recent op/ed in the New York Times called Why the Courts Will Have to Save Net Neutrality.

The problem for Mr. Pai is that government agencies are not free to abruptly reverse longstanding rules on which many have relied without a good reason, such as a change in factual circumstances. A mere change in F.C.C. ideology isn’t enough. As the Supreme Court has said, a federal agency must “examine the relevant data and articulate a satisfactory explanation for its action.” Given that net neutrality rules have been a huge success by most measures, the justification for killing them would have to be very strong.

It isn’t. In fact, it’s very weak. From what we know so far, Mr. Pai’s rationale for eliminating the rules is that cable and phone companies, despite years of healthy profit, need to earn even more money than they already do — that is, that the current rates of return do not yield adequate investment incentives. More specifically, Mr. Pai claims that industry investments have gone down since 2015, the year the Obama administration last strengthened the net neutrality rules.

Setting aside whether industry investments should be the dominant measure of success in internet policy (what about improved access for students? or the emergence of innovations like streaming TV?), Mr. Pai is not examining the facts: Securities and Exchange Commission filings reveal an increase in internet investments since 2015, as the internet advocacy group Free Press has demonstrated.

A popular argument I've seen from anti-Title II trolls on sites like Ars Technica and Techdirt is "Well if we need these rules, how did the Internet do so well before 2015?" (This rhetorical question is usually coupled with sarcastic remarks about former president Barack Obama.)

That question is disingenuous, for a couple of reasons. First, as Wu notes, that's the opposite of how FCC rules get passed and repealed. We already asked and answered the question of why we needed Title II regulations during the public comment period in 2014. The question isn't "Why did we need these rules in 2015?" It's "Why do we no longer need them in 2018?" It's the oldest forum troll trick in the book: "I'm not going to provide supporting evidence for my argument, I'm going to demand that you provide supporting evidence for yours, even though the burden of proof is on me."

The other reason the "How did the Internet ever survive before 2015?" question is disingenuous horseshit is that Pai's not merely rolling back FCC rules to pre-2015 levels, he's rolling them back to pre-2005 levels. Wu's article continues:

But Mr. Pai faces a more serious legal problem. Because he is killing net neutrality outright, not merely weakening it, he will have to explain to a court not just the shift from 2015 but also his reasoning for destroying the basic bans on blocking and throttling, which have been in effect since 2005 and have been relied on extensively by the entire internet ecosystem.

This will be a difficult task. What has changed since 2004 that now makes the blocking or throttling of competitors not a problem? The evidence points strongly in the opposite direction: There is a long history of anticompetitive throttling and blocking — often concealed — that the F.C.C. has had to stop to preserve the health of the internet economy. Examples include AT&T’s efforts to keep Skype off iPhones and the blocking of Google Wallet by Verizon. Services like Skype and Netflix would have met an early death without basic net neutrality protections. Mr. Pai needs to explain why we no longer have to worry about this sort of threat — and “You can trust your cable company” will not suffice.

So let's, just for a moment, play the trolls' game and explain why we need Title II regulations to protect net neutrality.

There's a convenient list of net neutrality violations making the rounds; I don't know where it originated, but I've seen variations on it in a couple of different places: by a poster named JoeDetroit on Techdirt and a poster named Happysin on Ars Technica. Here are both those versions of the list combined and lightly edited:

2005 - Madison River Communications was blocking VOIP services. The FCC put a stop to it.

2005 - Comcast was denying access to P2P services without notifying customers.

2007-2009 - AT&T was having Skype and other VOIPs blocked because they didn't like that there was competition for their cellphones.

2011 - MetroPCS tried to block all streaming except YouTube. They actually sued the FCC over this.

2011-2013 - AT&T, Sprint, and Verizon were blocking access to Google Wallet because it competed with their own wallet apps. This one happened literally months after the trio were busted collaborating with Google to block apps from the Android marketplace.

2012 - Verizon was demanding Google block tethering apps on Android because it let owners avoid their $20 tethering fee. This was despite guaranteeing they wouldn't do that as part of a winning bid on an airwaves auction.

2012 - AT&T tried to block access to FaceTime unless customers paid more money.

2013 - Verizon literally stated that the only thing stopping them from favoring some content providers over other providers were the net neutrality rules in place.

2014 - Netflix & Comcast sign a deal where Netflix will pay Comcast to stop throttling the service. The very next day, streaming problems vanish.

That is, needless to say, not an exhaustive list.

Meanwhile, there's another kind of forum troll, making the rounds like clockwork on every article I've ever seen on this subject: the "What does it matter? Pai's just going to do it anyway; he doesn't care what we think!" troll.

I've already responded to that argument at length (and up at the top of this post -- "two whole branches of government"). Wu reinforces my point:

Moreover, the F.C.C. is acting contrary to public sentiment, which may embolden the judiciary to oppose Mr. Pai. Telecommunications policy does not always attract public attention, but net neutrality does, and polls indicate that 76 percent of Americans support it. The F.C.C., in short, is on the wrong side of the democratic majority.

That's why people left comments on the FCC website. It's why people are writing articles protesting it now, and planning in-person protests for December 7. Lawsuits are inevitable, and clear and constant reminders that Pai threw out the Title II classification against public opinion makes his weak case weaker.

And that's not the only thing. Come back tomorrow for more.

Net Neutrality Day

Today's the Net Neutrality Day of Action.

Here's what I said about net neutrality during the open comment period in 2014, before the Title II rules passed, when the FCC was pushing a policy that would allow ISPs to charge websites for fast lanes:

This is exactly the kind of policy you get when you put a cable company lobbyist in charge of the FCC: a plan nobody but the cable companies could possibly want, and that seeks to make the Internet work like cable TV.

This plan has no benefit whatsoever to consumers. Cable companies demand extortion money from content providers; the providers who are willing and able to pay pass that cost on to their consumers (as Netflix has already done by raising its streaming subscription price), and the providers who aren't are put at a crippling disadvantage. You can bet the ever-increasing bottom dollar on your cable bill that if Comcast had had the opportunity to demand a premium from YouTube to stream video in 2005, we wouldn't be talking about YouTube today -- though maybe that would have been good news for Real Networks, as we'd probably still be limping along on the vastly inferior RealPlayer. Buffering...

This proposal is a government handout to the kind of companies that need it the least: monopolies and near-monopolies that already provide poor service at exorbitant prices, and suffer no market backlash for the simple reason that they provide a necessary service and have no competition.

Google doesn't want this. Microsoft doesn't want this. Netflix doesn't want this. Amazon doesn't want this. Consumers don't want this, and small businesses sure as hell don't want this. The only ones who DO want this are the cable companies who pick our pockets every month -- and their former employees like Chairman Wheeler.

And here's what I said during the open comment period this year, with the FCC preparing to repeal the Title II rules and, once again, proposing Internet fast lanes:

Seeking public comment? This is a farce. Chairman Pai heard exactly what the public had to say in 2014. The public responded, overwhelmingly, in support of net neutrality; indeed, the public interest was so high that the traffic brought down fcc.gov.

If Chairman Pai cared what the public thought, he would not be reversing a rule supported by the public in order to grant more power to internet service providers, some of the most despised companies in America. Nobody wants this except Comcast, AT&T, Charter, and Time Warner.

There is no free market competition in broadband Internet in America. There is no incentive for ISPs to compete on price or on service. We, as Americans, are a captive audience; our only choices are "use whatever ISP is available at our address" and "try to participate in twenty-first century America without Internet access".

We've already seen AT&T prioritizing its own traffic and Comcast banning protocols it didn't like. We need net neutrality protections to prevent predatory, monopolistic ISPs from engaging in that behavior. This is obvious to every American who's seen their monthly bill go up while the quality of service goes down.

But Chairman Pai has made it abundantly clear that he doesn't care what the American public has to say. If he did, he wouldn't even be considering repealing net neutrality.

I was wrong about Wheeler. He backed away from the fast-lane proposal, and passed Title II regulation. It wasn't perfect, but it was better than I ever thought we'd get.

I don't think I'm wrong about Pai. I'd love to be, but I think the fix is in. Pai doesn't give a fuck what the American public has to say.

But it's not about Pai. Pai won't last forever. Trump won't last forever. Even if the Republican majority in Congress sticks around, they're going to have to face their constituents sooner or later. And while net neutrality is a partisan issue on Capitol Hill, it's got broad bipartisan support everywhere else.

I don't think today's protests are going to make a damn bit of difference to Pai. But this is a long game. We need to keep the pressure on.

And hey, I've been surprised before. I thought SOPA and the TPP were foregone conclusions too. Maybe I'll be pleasantly surprised again.