Recent Neutrality Scuffles Highlight Need for Transparency
October 29, 2007
Filed under Internet Openness & Standards
The last few weeks have seen two scuffles relevant to the Internet neutrality debate. Verizon Wireless initially refused to facilitate certain automatic text messages from the abortion rights group NARAL on the ground that they were "controversial," even though the messages would only go to opt-in NARAL supporters. More recently, the Associated Press and others have reported that Comcast impairs some of its broadband subscribers' P2P communications by sending "reset" packets that effectively terminate individual communications (though Comcast claims the communications can be restarted later). In many ways, these two incidents are very different. The Verizon Wireless incident concerned text messages on a mobile phone network, not the Internet. Moreover, Verizon Wireless reversed course, blaming the initial decision to reject NARAL's messages as a mistaken application of a "dusty internal policy." In Comcast's case, the issue concerns broadband Internet service and the company shows no inclination to back down from what it defends as important network management activity. Another difference is that the carrier's decision in the Verizon Wireless case turned on the specific content of the communications (i.e., the controversial topic of abortion), whereas Comcast's policies appear to target protocols viewed as bandwidth hogs. But both cases highlight the need for more transparency. This is something on which all sides of the neutrality debate ought to be able to agree. It's one thing to argue about whether carriers should be subject to some type of government rules limiting discrimination. But it's quite another to argue that it's just fine for carriers to discriminate in secret, with no public disclosure of their policies. After all, opponents of regulation generally say that competition in the marketplace, together with the backstop of antitrust law, will provide a sufficient check against harmful types of discrimination. But the marketplace can't provide any discipline, and the public can't express its marketplace preferences, if there is no public access to information about what different carriers actually do. The Verizon Wireless incident became public because NARAL was able to get the story in the New York Times. But the policy under which the NARAL messages initially were refused was not public -- and despite the company's subsequent statement that it welcomes the use of text messaging to communicate diverse opinions, there still doesn't appear to be any express policy reflecting that stance. Comcast's use of reset packets to terminate some P2P communications likewise became public through news outlets and blogs reporting the results of their independent technical sleuthing. Comcast still has said very little about what it is doing, other than vague statements that it engages in unspecified "network management." Is it targeting high volume users? High volume applications? Communications that occur at certain times of the day, or under certain network conditions? It doesn't say. Naturally, carriers can't realistically disclose all the technical details of their traffic management techniques, for fear that they'd be providing a roadmap for those seeking to avoid the traffic rules. But nor is it good enough to just make a generic statement like "we manage the network in ways that make it work better for everybody." That's not disclosure in any meaningful sense. To the extent that a carrier's traffic management practices are perfectly reasonable, providing a meaningful description of them simply shouldn't be that painful to the carrier. And it would provide a useful safeguard. It would enable subscribers and potential subscribers to form their own opinions about whether a carrier's practices seem to match their individual preferences. A heavy user of P2P applications, for example, might care a great deal about when and how his carrier will or will not interfere with P2P communications. Disclosure also provides a check on arbitrary carrier behavior, by forcing carriers to put forward concrete policies and update them over time. Arbitrary application of some "dusty" or half-baked policy is much less likely when the carrier's policies have been through the stress test of public scrutiny. There is debate about whether consumers really have sufficient competitive choices to switch providers when they don't like their current carrier's policies. But if consumers have no way to determine what those policies are in the first place, the choices won't make any difference. Improving transparency ought to be a goal that could garner widespread support, even as the question of substantive nondiscrimination rules remains controversial.