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Mal-Content: How Markey III Hurts the Internet
Introduction
Written by Richard Bennett
Internetrevolution.com
8/21/2009
6 comments
Reading the latest version of Congressman Ed Markey’s (D-MA) Internet Freedom
Preservation Act of 2009 is like going to your high school reunion: It forces you to think
about issues that once appeared to be vitally important but which have faded into the
background with time.
When the first version of this bill appeared, in 2005, the Internet policy community was
abuzz with fears that the telcos were poised to make major changes to the Internet.
Former SBC/AT&T chairman Ed Whiteacre was complaining about Vonage and Google
“using his pipes for free,” and former BellSouth CEO Bill Smith was offering to
accelerate Internet services for a fee.
Our friends in the public interest lobby warned us that, without immediate Congressional
action, the Internet as we knew it would soon be a thing of the past.
In the intervening years, Congress did exactly nothing to shore up the regulatory system,
and the Internet appears to be working as well as it ever has: New services are still
coming online, the spam is still flowing, and the denial-of-service attacks are still a
regular occurrence.
It’s reasonable to ask how the Internet has managed to defy the odds and continue to
function despite these forecasts of doom, and how it would be affected by passing the
Markey Bill at this late date.
What Ain't Broke
The Internet is not just the coolest packet network ever deployed across the globe, it’s a
vibrant ecosystem nurtured and protected by a large community of stakeholders. Every
day, ISPs, IP transit providers (the companies that interconnect ISPs), application
vendors, and private network operators engage with each other in what’s been called the
largest collaboration in world history. Everyday, they keep the packets flowing in the
face of a never-ending parade of threats, attacks, and misconfigured routers.
In the United States, a robust regulatory system spanning the Federal Communications
Commission (FCC) , the Federal Trade Commission , the Justice Department, and state
public utilities commissions responds to complaints, examines business and network
management practices, and issues fines and sanctions where practices don’t pass muster.
When Madison River Telecom blocked access to Vonage by its DSL customers, the FCC
took quick action back in 2005, fining them and issuing the Internet Policy Statement (the
“four freedoms” document) outlining consumers’ Internet access rights. When Comcast
reduced the upstream bandwidth capable of carrying P2P traffic down to 50 percent in
order to ensure better service for most of its broadband subscribers, file-sharers
complained and the FCC ordered them not to use an application-oriented traffic throttling
scheme.
Errors in FCC procedure may cause the courts to kick an order back to the agency, but
there’s not much doubt that the FCC has the general authority to serve as the Internet’s
watchdog within U.S. borders as long as it follows protocol.
Beyond the power of the community and the regulators, consumer watchdogs have their
eyes trained on the ISPs to such an extent that every major action they take, good or bad,
stimulates a wide-ranging critical discussion in the blogosphere and the mainstream
press. We do have a somewhat competitive market for ISP services in the U.S., which
gives some 82 percent of us a choice of two wireline Internet access networks in addition
to a spotty but improving array of wireless options.
We actually have more choice in terms of facilities for Internet access than our cousins in
Europe and much of Asia do, even though they can buy the use of the same facilities
from a number of retailers.
What Could Be 'Fixed'
Given the health of the Internet ecosystem sustained by this vibrant blend of
collaboration, regulation, competition, and oversight, the Markey Bill has a steep hill to
climb, four years after its conception to establish its legitimacy.
While well intentioned, the legislation still has a number of major flaws. Like its
predecessors, Markey III imposes an ill-considered ban on packet differentiation, which it
terms “discrimination.” Under the bill’s provisions, an ISP or Internet transit provider
may not “provide or sell to any content, application, or service provider… any offering
that prioritizes traffic over that of other such providers on an Internet access service.”
This restriction is in line with the widespread but mistaken belief that “all packets are
equal" on the Internet. Its effect is to ban the sale of “enhanced delivery services” that
would enable innovators to develop over-the-top services that need out-of-the-ordinary
functions from the Internet’s transport system, as well as the use of management practices
that provide a boost to VoIP or similar kinds of latency-sensitive services.
To illustrate how this inhibits innovation, let’s say I’d like to start a service that enables
people to enjoy high-resolution, full-motion, multi-way video conferences across the
Internet. Nobody does this today without building a closed network intersecting Internet
Exchange Points and bypassing the Internet core. Low-resolution conferencing and twoway conferencing are easy to come by, but I mean to raise the bar, so I build one.
Overlay networks like this are the key to services provided by Akamai Technologies Inc.
(Nasdaq: AKAM), Limelight Networks Inc. (Nasdaq: LLNW), WebEx Communications
, and YouTube Inc. and aren’t controversial.
Having invested in my high-performance network, I find that some ISPs are unable to
deliver my customers’ video streams to the exchange points as fast as they must in order
for my customers to enjoy a lifelike experience, so I offer to pay these ISPs to boost my
customers’ video stream priority within their networks. This option enables me to sell my
service to their customers, and provides the ISPs with the means to pay for necessary
network upgrades.
Does this exercise enable innovation and enhance competition, or does it stifle it? Under
Markey III, it’s simply out of the question, an innovation that can never happen.
The Chicken-and-Egg Dynamic
The preceding example isn’t far-fetched. While people certainly do use videoconferencing, gaming, and bulk data services that need to transmit extremely large
volumes of data to backup disks or to transfer super-high-definition video streams on the
Internet today, the requirement for application-specific or customer-tailored delivery
services only emerges when these applications become both ubiquitous and very
ambitious in their transport requirements.
There’s a chicken-and-egg dynamic at work here: We’re only ever going to see
applications on the Internet that its transport system can support, and the transport system
only ever evolves except as it must. New applications cause innovation tension, which
ISPs and transit providers strive to deal with by equipment upgrades, and which
sometimes requires application changes, as was the case at the beginning of the Web. The
most interesting innovation tensions exist around emerging applications that can only run
well on high-end consumer Internet service tiers, which is where high-definition video
conferencing is today.
Markey III therefore fails on the critical question of distinguishing the “good
discrimination” that makes for happy customers from the “bad discrimination” that
deprives consumers of meaningful choice, as Madison River did.
The bill merely draws a line between the discrimination necessary to block spam and
malware and all other types, which is much too facile.
Thanks to the debates around Markey I & II, we know that the line should be drawn
much more liberally. Bob Kahn, who could credibly claim to be the “Father of the
Internet” if he were a self-promoter (he isn’t, so he doesn’t, but he is) is on record
opposing any measure mandating that “nothing interesting can happen inside the
network"; and Sir Tim Berners-Lee, generally regarded as a champion of network
neutrality, insists that he doesn’t support laws restricting the sale of enhanced Quality of
Service. In his words: “Net Neutrality is NOT saying that one shouldn't pay more money
for high quality of service. We always have, and we always will.”
The Markey bill is in direct conflict with these viewpoints on the future of the Internet as
well as with Internet standards permitting QoS, such as RSVP and DiffServ. The
effective implementation of these standards requires active cooperation from ISPs and
transit providers, which this bill would probably not permit. In fact, any management
system that recognizes the different requirements of VoIP and P2P, for example, would
be imperiled under the Markey III regime, and that would be bad for all of us who use the
Internet in diverse ways.
Perhaps the most problematic part of Markey III is its march into wireless Internet access.
While reasonable people may very well differ on the effects of the legislation in a realm
where bandwidth is theoretically unlimited (if you can pay more you can get more) there
should be no serious debate about the fact that its provisions will strangle 4G broadband
and voice-over-LTE (Long Term Evolution technology) in the crib.
This part of the bill is indefensible mission creep, apparently justified by the naïve
assumption that the regulatory framework devised for the public switched telephone
network should apply to all communication networks, willy-nilly. If we want to stop
technical progress on the cell network, all we have to do is regulate it as if it were a
generic phone network. When’s the last time you saw a service improvement on the
Princess phone’s network?
Of the Baby and the Bathwater
You’d be hard-pressed to find much support among the Internet engineers working today
for the proposition that we need to bake priority-free packet transport or the single service
level into regulation. The Internet Engineering Task Force (IETF) certainly isn’t going in
this direction in its work on peer-to-peer protocols and congestion management. Internet
intelligence is on the increase both inside the Internet and at the edges, and technologists
would like to keep it that way.
Of course, just to say that the technologists want a more flexible and managed Internet
doesn’t make it right. This is why regulators need to keep an eye on ISP management
practices to ensure they’re good for consumers and not just a sly way of privileging ISP
services above competitive over-the-top services such as VoIP, but they have to
scrutinize intelligently and on a case-by-case basis.
This is perhaps the biggest problem with any legislation that attempts to be prescriptive:
It’s practically impossible to spell out the rules for a dynamic system without throwing
the baby out with the bathwater, the good management with the bad.
According to the former chief architect of the Internet, David Clark, the Internet is a
global system designed for “tussle”, one that will admirably meet the challenges of future
applications if it’s allowed to develop according to its own requirements.
We’ve seen with the advent of content delivery networks and cloud computing that
application providers can substantially bypass the Internet’s core and will do so in order
to provide their own applications with a boost over those that work in the classic end-toend manner, from one server to the entire Web. The Internet hasn’t been a “one size fits
all” network for quite some time, and not even the United States Congress has the power
to put that genie back in the bottle. It’s foolish even to try.
That being said, Markey III contains a number of other provisions ranging from “less
troubling” to “highly beneficial.” Its best provision directs the FCC to formulate specific
rules regarding the disclosure of service information to consumers. If done right, this
might help to bridge the gulf between consumer understanding of Internet service and its
actual dynamics.
Many consumers believe that an ISP’s claim to provide speed up to a certain bandwidth
figure means that each consumer can expect at least that much capacity 24x7. Bringing
expectations into line with reality is always a good thing, but there’s so much history of
misleading language in Internet service plans that nobody’s going to come clean until
they all do. Regulation can make this happen.
The bill also calls for specific rules preventing ISPs from operating “Internet access
services in an anticompetitive, unreasonable, unfair, discriminatory, or deceptive
manner.” Four of these prohibitions are highly appropriate (“discriminatory” is not,
because it’s a poorly defined term), and the principal issue they raise concerns their
potential redundancy with existing law and regulation.
The Internet is a dynamic system, so the case-by-case review of network management
practices needs to be conducted within a flexible framework that generally lets providers
manage their networks to enhance performance. The Markey bill’s ban on
"discrimination" and the "least restrictive means" test it proposes inhibit the Internet’s
ability to adapt and evolve.
We at the Information Technology & Innovation Foundation agree with Congressman
Markey that the network management provision should not become an open invitation for
ISPs to gain unfair competitive advantage, but we also believe that the successful day-byday operation of the Internet demands a great deal more flexibility than this bill would
allow.
Markey III’s provisions relating to service disclosure are commendable; those relating to
market distortion are good; and the rest are harmful. Overall, Congress should sit tight
and let the new FCC do its job. The Commission is due to deliver the National
Broadband Plan in February, and if it feels the need for more direction from Congress
regarding network management practices, it will surely ask.
— Richard Bennett is a Research Fellow with the Information Technology & Innovation
Foundation specializing in broadband networking and Internet policy.