The FCC and Regulatory Capture

Earlier this month, Internet users welcomed the FCC's ruling against Comcast for interfering with BitTorrent uploads, celebrating the action as a victory for net neutrality. Reigning in Comcast's dishonest behavior was the right thing to do in this case, but many observers are worried that the FCC is establishing a dangerous habit of interfering with the Internet, especially since the FCC has a spotty history when it comes to serving the public.

For those looking for more background, a great panel discussion/podcast from the Technology Liberation Front explores the series of decisions that brought the FCC to the forefront of the net neutrality debate and covers why those decisions are unprecedented. Commenting on the FCC's action, law professor Susan Crawford writes:

The [FCC] is in completely uncharted waters, using this idea of 'ancillary authority' to carry out whatever it feels like. [...] Although in the short term condemning Comcast is certainly a good idea, the notion that case-by-case, wholly discretionary adjudications like this one are possibly a good idea for all aspects of internet policy is nuts.

But it is technology scholar and journalist David Robinson who reaches the root of the problem looming beyond the horizon: "[The Comcast decision] also preserves the Commission's ability to make bad choices in the future, especially if diminished public interest in the issue increases the odds of regulatory capture."

[Read the entire post]

FCC Rules Against Comcast for BitTorrent Blocking

On Friday, the FCC voted, 3-2, to punish Comcast for its surreptitious interference with BitTorrent uploads (a practice that EFF helped uncover and document in October 2007). The Commission adopted an order (text of which hasn't been released yet) finding that Comcast violated the neutrality principles set out in the FCC's 2005 "Internet Policy Statement." According to the statement released by FCC Chairman Martin, the order will require Comcast to disclose its practices and stop discriminating against BitTorrent traffic (Comcast, for its part, has already announced that it will be moving to different mechanisms to throttle high-bandwidth users.)

We're pleased that the FCC recognized that Comcast's behavior violated the Internet Policy Statement and could not be excused as "reasonable network management" -- we said as much in our comments to the FCC. We are particularly encouraged that the Chairman Martin specifically took Comcast to task for not adequately disclosing what it was up to -- for the free market to work, customers needs to know what they are buying.

But it's important to recognize that this is just the beginning, not the end, of the fight. The Commission made it clear that it intends to police this frontier of net neutrality on a case-by-case basis, responding to specific consumer complaints. In order to bring these kinds of complaints, however, concerned Internet users need more and better tools to detect ISP misbehavior. That's why EFF today announced the release of the Switzerland network testing tool, the second tool released by EFF's "Test Your ISP" project.

There is one aspect of Friday's FCC ruling, however, that seriously troubles us. Consider how the FCC got here. In 2005, without any authority or guidance from Congress, the FCC announced a "policy statement." Now, in 2008, it decided that it has the power to enforce the policy statement and announced an "enforcement framework" that will be applied to future complaints. Again, all this without authority or guidance from Congress. As Commissioner McDowell put it in his dissent from the Comcast order, "Under the analysis set forth in the order, the Commission apparently can do anything [to regulate the Internet] so long as it frames its actions in terms of promoting the Internet or broadband deployment." Can the FCC be trusted with that kind of power? Remember, historically, the FCC has been subject to "regulatory capture" -- in other words, over time, they end up doing the bidding of the very telecom giants they are supposed to be regulating.

So while there is a great deal to like about the Internet Policy Statement, and today the FCC appears to have come to the right conclusions about Comcast's behavior, what if the next "policy statement" turns out to be a disaster for net neutrality? After all, a polar bear makes a great bodyguard, until it decides to eat you.

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FCC Chairman Hints at Order Against Comcast

FCC Chairman Kevin Martin sent a signal today that the FCC may issue an order against Comcast in the wake of the scandal over their use of packet forgery to interfere with BitTorrent, Gnutella, and other Internet protocols.

EFF worked with Robb Topolski to run the first controlled tests of Comcast's RST forgery practices last year. We've been following the issue closely since then, and believe that Comcast's decision to switch to less discriminatory network management practices represented a victory for transparency, for an open network, and for common sense.

We are now waiting to see what precise steps the FCC decides to take. There is a lot at stake. On one hand, Comcast was clearly out of line. If ISPs decide that they can arbitrarily interfere with or degrade some of the applications that their users decide to run, they are giving themselves the power to veto or approve innovation on the Internet. Comcast was assigning
itself this veto power, and attempting to do so in secret.

On the other hand, we must be vigilant for unintended consequences from federal regulation of network management practices. Any rule that restricts the way the Internet can operate must be read upside down, backwards, and inside out to ensure that it won't turn out to prevent good engineering that nobody has thought of yet. We are also concerned that regulatory steps
by the FCC could stretch the limits of the Commission's statutory authority; we would feel more comfortable if Congress had clearly considered, allowed, and bounded FCC jurisdiction in this space.

Chairman Martin has indicated that he does not want to fine Comcast, but would order them to cease interference in a timely fashion, report on where and when interference has been occurring, and report on the details of their future traffic management plans. As specific outcomes, these are fair — and leadership to improve transparency is what we asked the FCC to provide — but the jursidictional issues will require careful analysis. The FCC is planning to vote on its actions on the 1st of August, and we'll follow up with more when there is precise language for an Commission decision.

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FCC Hearings at Stanford: Towards a Consensus on ISP Transparency?

Yesterday, the FCC held a second hearing in its investigation of Comcast's use of forged RST packets to interfere with BitTorrent and other P2P applications. Free Press has a page linking to written testimony, statements, and audio and video recordings from the Stanford hearing.

At the previous hearing at Harvard Law School, Comcast attracted criticism for filling the auditorium with paid attendees. This time around, the telcos declined to participate at all. They sent proxies in their place: a conservative think tank called the Phoenix Center, freelance tech pundit George Ou, and one ISP: Lariat.net of Wyoming. It's a pity that ISPs aren't willing to participate in public debate about their own practices.

EFF has argued that the FCC should use its position of leadership to clarify that ISPs should, at the very least, provide adequate disclosure of any discriminatory network management practices that they deploy (we are also trying to get similar information by promoting independent testing of ISP networks with our Test Your ISP project). This kind of transparency is essential for a properly functioning marketplace: the public must be able to know when their software doesn't work because it's buggy, and when it doesn't work because of interference by an ISP. Without this information, users don't know which tech support line to raise hell with, whether they need to switch to new software, or whether they need to switch to a new ISP.

Transparency and responsiveness is also essential for application developers to understand the way that their applications will have to fit into ISPs' networks.

We were very pleased to see that requirements for disclosure and transparency seemed to command a near-consensus amongst the Commissioners and those testifying. The devil will be in the details, of course: will disclosures be informative enough for programmers to work with and for consumers to make good decisions?

One prevailing point of confusion in the discussion was the relationship between the lack of information about network traffic in general (eg, how much of Internet traffic is P2P? What kind of P2P?), the lack of information about Comcast's discriminatory network management practices (what percentage of BitTorrent seeds has Comcast been reseting? How has that varied at different times, and in different locations across the country?), and the lack of information about discrimination by other ISPs (Cox Communications, for instance, discloses that it uses "traffic prioritization" and "protocol filtering", but we don't know if its techniques are precisely the same as Comcast's, or whether it is planning to phase them out). These are all separate known unknowns and we know the FCC should look in different places if it wants to resolve them.

Another interesting question raised by Commissioner Tate was how an FCC disclosure obligation or principle would fit together with new software tools to test ISPs. We think the answer is that both are required: disclosures by ISPs and independent tests by the public are complimentary; neither of them will tell us everything we'd like to know about the network, and each of them will act as a cross-check for the other.

In the mean time, the threat of intervention by the FCC has caused Comcast to eat a great deal of humble pie. They're promising to work with BitTorrent Inc — we hope they'll also work with the wider Internet community — to find less discriminatory ways to manage their network.

In closing, we doubt that RST forgery will be the last "network management" practice to spark consternation and controversy. But we hope that in future, it won't take the best part of a year of wrangling and an FCC proceeding before transparency and common sense start to prevail.

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Software for Keeping ISPs Honest

Yesterday's announcement of a détente between Comcast and BitTorrent was great news. Unfortunately, the general problem of ISPs doing strange things to Internet traffic without telling their customers is likely to continue in the future. EFF and many other organizations are working on software to test ISPs for unusual (mis)behavior. In this detailed post, we have a round-up of the tools that are out there right now, and others that are in development...

[Read the entire post]

EFF to FCC: "Reasonable Network Management" Requires Transparency

In response to the FCC's inquiry into Comcast's interference with BitTorrent traffic, EFF filed comments yesterday urging the FCC to make it clear that ISPs must, at a minimum, adequately disclose their "network management" practices before they can hide behind the excuse of "reasonable network management."

The FCC has invited public comments regarding the Comcast BitTorrent blocking affair in response to two petitions: one filed by Vuze (formerly Azureus) and another filed by the Media Access Project, FreePress and Public Knowledge. (The recent public hearing in Boston, in which Comcast paid people to fill seats, was also part of this same proceeding.)

The central question in the proceeding is whether Comcast has violated the four neutrality principles set out in the FCC's Internet Policy Statement. It seems clear that Comcast's protocol-specific interference with BitTorrent traffic violates those neutrality principles. In response, Comcast (and other ISPs) have offered the excuse that it was all "reasonable network management" -- a catch-all exception to the FCC's neutrality principles.

In its comments to the FCC, EFF urges the agency to clarify that the "reasonable network management" exception to its neutrality principles should only apply where an ISP has adequately disclosed the existence and likely consequence to customers of its discriminatory practices. After all, if we believe that market forces are our first line of defense against unreasonable ISP behavior, those forces can only work if customers, competitors, innovators, and policy-makers know what the ISPs are up to. On that score, Comcast has obviously fallen short, issuing a series of denials, evasions, and half-truths for 10 months after its own customers caught them interfering with BitTorrent traffic. The FCC needs to send a message to Comcast and other ISPs that this is unacceptable.

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Total Election Awareness

Over the last several years, EFF has strongly opposed the use of closed, unverifiable voting technologies, bringing litigation to investigate faulty machines and challenge bad practices as well as backing legislation that would move us towards more trustworthy elections. For 2008, EFF is making a new contribution to help keep track of election issues, technology-related or otherwise.

Last week, EFF successfully tested a beta version of Total Election Awareness (or "TEA"), a web-based application designed to help election monitoring efforts collect and analyze election-related incidents in real time. The first field test took place on February 5th — "Super Tuesday". Working with the Election Protection Coalition, TEA helped volunteers staffing Election Protection call centers (866-OUR-VOTE) in Atlanta, Chicago, Los Angeles, and New York to record over 2,200 incidents and inquiries from voters from across the country. This week, TEA recorded the details of another 600 calls in the Virginia, Maryland, and Washington D.C. primaries.

The next phase in the project development is preparing the tool for use in the November general election. In addition to improving the quality of the data recorded as part of the Election Protection process, we're also planning to make the November data available to the public in real time. Moreover, TEA is being developed as a free open-source project so other election monitoring efforts, large or small, will be able to use the tool themselves once it's released.

Stay tuned to Deeplinks for future developments!

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President Tries to Scrap New Open Government Office

Just weeks after signing legislation that significantly updated the Freedom of Information Act (FOIA) for the first time in more than a decade, the President is attempting to single-handedly strike a major part of the new law.

Among other improvements to the FOIA, the OPEN Government Act created an ombudsman to settle problems between FOIA requesters and federal agencies, as well as keep tabs on how well the FOIA works in practice. Rather than put the new office in the Department of Justice, which has been in charge of the government's FOIA policy for more than 30 years and represents the government in FOIA lawsuits filed by requesters, Congress decided that it should be part of the National Archives and Records Administration to help maintain its independence.

It seemed that President Bush was behind this idea when he signed the OPEN Government Act into law on December 31. His proposed budget for 2009, however, includes a provision that would "repeal" the ombudsman's office and shift its funding to the Justice Department.

If the President's attempt to get rid the ombudsman is successful, it would be tremendously unfortunate for both the public and the government. This new office is meant to give requesters a way to resolve FOIA disputes without having to resort to litigation, which would be cheaper and less burdensome for people who have trouble getting documents from the government, and might reduce the number of FOIA lawsuits that the government has to defend against. The creation of the ombudsman's office is a good idea for improving the FOIA process, which doesn't work as well as it should. The President should see if it makes things better before deciding it's not worth the money.

EFF has joined a coalition of more than 40 organizations asking Congress to provide funds for the ombudsmen to work out of the National Archives as Congress intended. You can read our objections to the budget proposal here.

To learn more about EFF's Freedom of Information Act litigation, click here.

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Key Open Government Reform Legislation Becomes Law

In one of his last official acts of 2007, President Bush signed into law the first major overhaul of the Freedom of Information Act (FOIA) in more than a decade. The Open Government Act of 2007 makes much-needed changes to the FOIA process that will give Americans better access to information about their government at work, such as:

• Ensuring that freelance and alternative journalists are considered representatives of the media, making it less expensive for them to get information from the government.
• Providing for attorney fees when a requester's lawsuit prompts an agency to change its position on a request, even if a court doesn't order it.
• Creating a tracking system to help make sure that FOIA requests don't become hopelessly tangled in red tape.
• Establishing the Office of Government Information Services, which will be tasked with helping to resolve conflicts between agencies and requesters.
• Penalizing agencies that don't process FOIA requests on time.
• Making it clear that requesters can get government records maintained by private contractors, not just the agencies themselves.
• Imposing greater reporting requirements to let Congress and the public know more about how agencies handle requests.

The changes made by the OPEN Government Act are a hard-fought victory that will help EFF and other requesters make better use of the FOIA and keep the government accountable to the people.

In the past few months, EFF's FOIA requests have uncovered illegal government demands for phone customers' "communities of interest" and revealed details about the FBI's misuse of National Security Letters. Our work was also cited in a congressional call for an investigation of former Attorney General Alberto Gonzales. To learn more about EFF's FOIA efforts, visit our FOIA Litigation for Accountable Government (FLAG) Project page.

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