by: Brian Pascal (bhpascal [at] umich [dot] edu), Associate Editor, MTTLR
This incongruous situation, absurd in the real world, is all too real on the Internet. A few weeks ago, the Associated Press discovered that Comcast is playing the role of station attendant, targeting a specific type of internet traffic and delaying its delivery.1 The type of traffic targeted is that which is mediated by the BitTorrent protocol, a method originally designed for the efficient distribution of large files via the Internet while simultaneously distributing the costs of bandwidth and hosting among a multitude of users.2 While there exist numerous legitimate uses for BitTorrent, and while it was not specifically created to assist in copyright infringement, the very capabilities that make BitTorrent a powerful tool for creating a robust, self-sustaining network for the distribution of legitimate large files also make it widely used to enable copyright infringement, allowing for the rapid distribution of movies, television shows, and music. For these reasons, legal and illegal BitTorrent traffic accounts for a large percentage of the overall traffic on the Internet (though specific usage data has proven difficult to measure). 3
When the Associated Press published their findings, Comcast’s initial response was to flatly deny the allegations, stating that “Comcast does not block access to any applications, including BitTorrent.”4 Several days later, however, Comcast admitted that it was, in fact, delaying BitTorrent traffic, stating that “[d]uring periods of heavy peer-to-peer congestion, which can degrade the experience for all customers, we use several network management technologies that, when necessary, enable us to delay — not block — some peer-to-peer traffic. However, the peer-to-peer transaction will eventually be completed as requested.”5
This type of action, that of altering the flow of Internet traffic based on content, is merely the latest chapter in the ongoing debate over network neutrality. Tim Wu, a leading scholar in the field, states that “network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally.”6 Comcast’s delaying of BitTorrent traffic is a clear deviation from that ideal, especially considering that it does not even specifically target the illicit uses of BitTorrent, but rather the protocol as a whole. Further, the means by which Comcast accomplishes this is by “impersonating” one of the users connected to the network, sending a signal that is interpreted as a request to stop transmission by TCP/IP, internet communication protocol.7
While there are strong normative and economic arguments to be made in favor of network neutrality,8 there is another theory, less often raised, that may serve to answer many of these questions under a legal framework — the doctrine of common carriage. The idea of a “common carrier” dates back to the common law of the 1800’s (or perhaps earlier). Generally, “common carriers were 1) required to serve upon reasonable demand, any and all who sought out their services; 2) held to a high standard of care for the property entrusted to them; and 3) limited to incidental damages for breach of duty.”9 This was not limited strictly to railroad services and shipping conglomerates. “In 1901, following many state courts, the U.S. Supreme Court held that at common law — i.e., even without a specific statute — a telegraph company is a common carrier and owes a duty of non-discrimination.”10 This commonlaw theory was instantiated in the United States Code, requiring communications carriers “to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers,”11 and, moreover, to “ensure the ability of users and information providers to seamlessly and transparently transmit and receive information between and across telecommunications networks.”12
Read broadly, it seems that ISPs should be included in the set of telecommunications carriers regulated by these laws, and, moreover, to stand as a Congressional mandate of network neutrality; however, they are, generally speaking, not applied to internet connectivity.13 Further, current ISPs rely upon a host of economic and non-economic arguments to promote “network diversity,” arguing, for example, that the ideal of network neutrality is dependent upon a myth of “infinite bandwidth,” and that the application of a truly content-agnostic network is inefficient in practice.14 Additionally, since the ISPs claim ownership over their own networks, they argue that it is fully within their rights to regulate and optimize their available bandwidth as they see fit.15 Comcast’s recent throttling of BitTorrent connections is in keeping with this side of the argument. Given the economic concerns of of providing the best possible experience to its users, coupled with the very real fact that BitTorrent is responsible for a large percentage of its available bandwidth, Comcast made the decision to sacrifice the optimistic ideal of neutral network upon the altar of perceived practicality.
The debate over network neutrality is far from finished. Between the widespread, mainstream coverage of Comcast’s shaping of their network, and Barack Obama’s announcement of his intention to fight for network neutrality,16 the conversation has never been more prominent nor more relevant.
But conversations depend upon open channels of communication. Instead of fostering free and open communication, ISPs appear to hope for a return to the more centralized broadcast model, in which content providers are the main source and users are little more than passive receivers.17 In so doing, those in favor of network diversity short-circuit the very ideals originally embodied in the law of common carriage, the ideals that should, given the directness of the analogy, live on in modern Internet regulation. The alternative is a future in which speech not supported by big business is at risk for routing through Texas, and that situation, under any other circumstances, has never been allowed to stand.
1 Peter Svensson, Comcast Blocks Some Internet Traffic, Wash. Post, Oct. 19, 2007.
2 See, e.g., Wikipedia, BitTorrent (last visited Nov. 12, 2007).
4 Svensson, supra note 1.
5 Peter Svensson, Comcast Admits Delaying Some Traffic, USA Today, Oct. 23, 2007.
6 Tim Wu, Network Neutrality FAQ (last visited Nov. 12, 2007).
7 See, e.g., Susan Crawford, Comcast is Pretending to be You, Susan Crawford Blog (last visited Nov. 12, 2007).
8 See, e.g., Wu, supra note 6.
9 Eli M. Noam, Beyond Liberalization II: The Impending Doom of Common Carriage, 18 Telecomm. Pol’y 435. Sec. II (1994).
10 Cybertelecom, Common Carriers, (citing Noam, supra note 9).
11 47 U.S.C. § 251(a)(1) (2000).
12 47 U.S.C. § 256(a)(2) (2000).
13 See Noam, supra note 9.
14 See generally, Christopher S. Yoo, Beyond Network Neutrality, 19 Harv. J. Law & Tech. 2 (2005).
16 Barack Obama – U.S. Senator for Illinois, Network Neutrality, June 8, 2006.
17 Susan Crawford, The Radio and the Internet (working draft).