The Internet ecosystem: the potential for discrimination.

• Author: Grunwald, Dirk
• Position: Rough Consensus and Running Code: Integrating Engineering Principles into the Internet Policy Debates

1. THE PREMISE BEHIND NETWORK NEUTRALITY II. RISKS TO THE INTERNET ECOSYSTEM A. Access to the Web--the Browser B. Rich Internet Applications, Video, and the New Content Companies C. Naming and Information Discovery D. Content Distribution and Cloud Computing--the Invisible Ecosystem III. THE RISKS OF REGULATION IN THE INTERNET ECOSYSTEM A. Insensible Neutrality B. Fostering a Competitive Ecosystem C. Regulating Legal Content D. Curtailing Innovation in Network Management E. Technology on Internet Time IV. MAINTAINING A VIBRANT INTERNET ECOSYSTEM A. Measure and Report B. Maintain Competitive Applications, Content, and Services C. Maintain Competitive Networks with Transparency and Clarity D. Keep Ahead of the Technology V. REGULATION SHOULD BE A PROCESS, NOT A PRODUCT I. THE PREMISE BEHIND NETWORK NEUTRALITY

   The premise behind the current debate in network neutrality was articulated in an FCC policy statement adopted in August 2005 (1) that stated four goals for the Internet:

   1. "[C]onsumers are entitled to access the lawful ... content of their choice." (2)

   2. "[C]onsumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement." (3)

   3. "[C]onsumers are entitled to connect their choice of legal devices that do not harm the network." (4)

   4. "[C]onsumers are entitled to competition between network providers, application and service providers, and content providers." (5) Rules that have been proposed since would extend these four core principles by adding two additional rules: (6)

   1. A provider of broadband Internet access service must "treat lawful content, applications, and services in a nondiscriminatory manner." (7)

   2. A provider of broadband Internet access service must "disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking." (8)

   Broadly speaking, participants in the network neutrality debate use the same term to conflate two issues--accessing content of their choice and, more narrowly, enabling the development of a competitive environment for services, applications, and content providers by maintaining "neutral" access to the last link for consumers or the "public" Internet (the "access network").

   The two primary concerns have been that access network providers would provide preferential treatment to specific uses of the network and may go so far as to block certain kinds of applications.9 To support this concern, proponents of regulation point to a small number of documented cases where ISPs have blocked specific services (VOIP (10) and file sharing (11)). There is concern about a lack of transparency in network management and how that might diminish the opportunity for innovation in the Internet or unfairly limit competition. But the ability to limit access to Internet applications is not restricted to access networks. Such restrictions can be imposed by many components used to access Internet content, such as the browser and services or applications within the Internet.

   Likewise, there are many ways to enable preferential access. In a 2007 article, this Author, along with Douglas Sicker, discussed aspects of current Internet access network designs that can lead to higher barriers for innovation and new services or can allow subtle forms of preferential network access. (12) We specifically focused on asymmetric access links and content distribution networks (CDNs). Asymmetric access networks make it more difficult for consumers to "self-publish," and commercial content distribution networks (13) can effectively provide "preferential access" to content provisioned on a CDN located within an ISP's network without actually violating "neutral" access network policies.

   We argued that these barriers impose as much risk as preferential treatment of access networks, but that network neutrality regulation focused solely on access networks would be unlikely to address these barriers. (14) Instead, the proposed regulations may hamper network innovation at the access network, as well as the core of the network, while still leaving open the door for anticompetitive actions that the regulations are intended to forestall.

   This Article explores other parts of the Internet ecosystem and how they affect open and competitive networks. There is broad consensus that layers of the Internet ecosystem other than the access network may impact competition and innovation--the question remains as to whether new rules are needed. In the conclusion of a paper describing the economic history of price discrimination in telecommunications networks, (15) Andrew Odlyzko wrote:

   For telecommunications, given current trends in demand and in rate and sources of innovation, it appears to be better for society not to tilt towards the operators, and instead to stimulate innovation on the network by others by enforcing net neutrality. But this would likely open the way for other players, such as Google, that emerge from that open and competitive arena as big winners, to become choke points. So it would be wise to prepare to monitor what happens, and be ready to intervene by imposing neutrality rules on them when necessary. (16) Odlyzko's point was that what he termed "cloud computing" (17) would become a more important marketplace for innovation than services integrated into access networks; his implication mirrors that of this Article--focusing on those access networks may distract from anticompetitive behavior in those other markets.

   This Article is in agreement with Odlyzko's observation that other parts of the Internet ecosystem are equally powerful in determining the rich, competitive environment of the Internet and show this for past, current, and emerging parts of the Internet. At the same time, this Article argues that regulation and action---either that proposed for the access network or extending beyond those networks (through ambiguity or design)--should be applied only when clear harms are shown. The development of specific technologies coupled with the pace of technology development, the continued innovation of the Internet community, and the use of existing laws has served the Internet well.

   The FCC's Notice of Proposed Rulemaking (NPRM), released in October 2009, (18) attempts to ensure a competitive marketplace, but it does so through regulating one subset of providers and certain specific network characteristics such as traffic priorities (19) and managed services (having multiple services use a single physical transport). (20) This focus ignores the fact that the Internet evolves over time and is far from a finished work. In fact, the National Science Foundation (NSF), the national agency that has long funded Internet research, has launched multiple research programs to define the future Internet. (21) Extending the existing Internet is difficult because it has become essential to society, but there are clear reasons to improve on the current design. Would regulation add yet more friction to the process of improving the Internet? Are we doomed to the Internet of today?

   Rather than use words like "discrimination," network engineers prefer terms like "network management" and "prioritization." (22) One form of prioritization endemic to the Internet is "congestion control"; congestion occurs in a network when too many packets try to use the same resource (link or router). The Internet Protocol (23) handles congestion by simply discarding packets when resources are limited, but congestion requires that the transmitter slow down, or the network can enter a "congestion collapse" whereby no useful communication takes place. (24) The original Internet design principles emphasized "end-to-end" control (25) and assumed that the computers at each end of a transmission would cooperate to prevent congestion collapse. In 1986, the network experienced a series of congestion collapses that reduced useful throughput by factors of 10 to 1000. (26) New congestion control methods were introduced then and have continued to be developed. Different congestion control methods, implemented on devices or working in concert with network routers, affect how competing network flows use the networks to improve the overall efficiency of a complex, distributed, and decentralized system. Would this research and innovation be possible with the proposed FCC rules in place?

   Although the Internet is forty years old, the commercial Internet is only fifteen to twenty years old. New applications and an increased number of users change assumptions that network engineers have made and expose the network to new challenges with the concomitant need for new solutions. In an effort to maintain a rich Internet environment, the proposed regulations focus on access networks without considering how anticompetitive pressures can be applied in the remainder of the Internet. They also regulate a mechanism (traffic prioritization) that is used in congestion control, but at the same time is part of the basic Internet design. Likewise, although the FCC's NPRM addresses the distinction between the "managed" and "public" Internet, it does so in a limited way that may hamper innovation in "managed" networks or in the interface between private and public networks.

   This Article argues that there are better ways to maintain a vibrant Internet. These include: having clear standards and methods for measuring what is actually happening in the Internet, as well as methods for reporting or disseminating policy to consumers; using existing agencies and policies; encouraging innovation and competition for access networks; and developing "best practices" that can be clearly understood by network operators, regulators, and consumers.

2. RISKS TO THE INTERNET ECOSYSTEM

   The Internet is composed of many parts that make up the "experience" that end users now confront. Just as the phone...