22 comments

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  Steve R.

  7 months ago

  Adam, good article. My concern is the flip side, that is that there is virtually no call for the ISPs to act in an ethical manner or to invoke standard business practices that assure the consumer receives fair value . Basically the discussion is one sided, the flaws of government involvement are highlighted, but the short comings of private side are conveniently being glossed over.
  
  Richard makes a very good observation: "In general, arguments that service providers can't do this or that as a practical matter are founded on sand. Advances in technology make many things practical tomorrow that are utterly impossible today, and we can more or less expect that to happen." The entertainment industry, for example, has been demanding that ISP "filter" content to prevent what they assert is unauthorized content transfer. The technology now exists to do this and we have now seen entertainment industry demand that the ISPs protect their interests. We even have the entertainment industry pushing for legislation to require ISPs to act as their private law enforcement arm. From the free-market perspective, the ISP have no obligation to filter content to protect the interests of the entertainment industry. The following quote from John Perry Barlow highlights this process at work ""The greatest constraint on your future liberties may come not from government but from corporate legal departments laboring to protect by force what can no longer be protected by practical efficiency or general social consent.".
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  MikeRT

  7 months ago

  Your example here is one of the government passing legislation at another industry's behest. In general, ISPs have hitherto shown little desire to really police their users for copyright infringement because it's just not something that makes business sense for them to do. It's just not their problem, so why bother.
  
  Furthermore, I think the simplest reason why they wouldn't censor opinions they may disagree with is that it would get them negative publicity. More people are likely to leave them over that than come to them.
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  Steve R.

  7 months ago

  On the humerus side, just heard on the radio that Exxon, due to the falling price of oil, just laid off three congressmen!!!
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  Ryan Radia

  7 months ago

  As long as we maintain a safe harbor for providers, there will be no widespread adoption of content filtering by ISPs. AT&T knows it is fighting a losing battle, and the only people likely to be affected by any filtering effort are those unable to perform a Google search.
  
  Besides, ISPs that employ content filtering to the detriment of their subscribers will only push people toward competing providers that don't filter.
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  Richard Bennett

  7 months ago

  ISPs actually do have an incentive to filter certain types of pirated content, namely to free up network capacity.
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  Ryan Radia

  7 months ago

  Sure, but that's only because pirated content is a major hog of network resources. As network congestion becomes less attributable to illegal file sharing and more attributable to Hulu, Netflix, and YouTube, ISPs will have fewer reasons to target P2P and more reasons to simply implement across-the-board usage caps, per-byte billing, etc.
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  Richard Bennett

  7 months ago

  I doubt it. P2P is trouble because of two things: its bi-directionality and its consumption of transit resources. YouTube and Hulu aren't bi-directional, and YouTube at least enters ISP networks at peering points, so there's no extra charge for the larger ISPs for transit. This is the way your ISP would prefer you to get your video streams.
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  eee_eff

  7 months ago

  Steve:
  
  Great comment, to which I would add just a couple of points.
  
  First, to the extent that a corporation that may provide the "pipes" is separate from one that provides the content, there would be no incentive to filter. When the economic incentives are tied together, some strange things begin to happen. For example, NBC provided very little coverage of the Chernobyl accident, and it was no accident that NBC was then owned by General Electric, maker of nuclear power plants. So the incentive can exist, and when coupled with the fact that in many communities there is only one available high speed internet provider, the opportunity and the motive both exist.
  
  Second, there have in fact been many examples of suppression of free speech by large corporations, in particular AT&T, so there is evidence that when motive and opportunity both exist, abuses, do, in fact occur.
  
  Third, there is a reason why the FIRST amendment came FIRST. Because the freedom of speech was considered a paramount freedom. But to those at TLF it appears not to be very important, and any suppression of the right to express is seen as a trifling concern. Many of the comments defending Tim's position center around the line of thinking that maybe some abuses will occur but they won't be that bad and the market will eventually sort out this issue. But this forgets the very important point that free speech delayed is free speech denied. If, for example important information can't be distributed before an election the damage to society is done, and it is TOO LATE to turn back the clock.
  
  The First Amendment is important; don't abandon it.
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  Richard Bennett

  7 months ago

  In general, arguments that service providers can't do this or that as a practical matter are founded on sand. Advances in technology make many things practical tomorrow that are utterly impossible today, and we can more or less expect that to happen. Some net neutrality proponents have argued that protocol detection is impossible because they assume the pirates can use various forms of obfuscation that render their activities undetectable by current technology. But these arguments assume that there's one and only one way to identify a protocol on a wire. In fact, P2P protocols are detectable simply by characteristics that can never be obfuscated, such as the number of streams to and from a client account and the volume of data they carry over time. So arguments that are really on principle are best made when they don't make too many assumptions about the limits of practice.
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  Ryan Radia

  7 months ago

  With regards to P2P, of course high-bandwidth streams can be identified by ISPs as such, no matter the obfuscation, and Bittorrent's fairly unusual TCP characteristics make it pretty obvious regardless of the application layer. (Although perhaps an IPSec VPN tunnel to a "friendly" endpoint, with some random padding data added in for good measure, might make it extremely tough for an ISP to tell the difference between various P2P protocols)
  
  What Adam's post is addressing, I believe, is the question of whether ISPs will ever be able to detect and suppress speech. Net neutrality advocates get people worked up by claiming that new laws are needed to prevent ISP censorship, but the fact is that such censorship is basically impossible. There is no valid basis for arguing that ISPs will ever be able to distinguish between a pro-abortion data transmission from an anti-abortion one. The days of communicating in plain-text are numbered, and ISPs surely realize that if they can't even successfully fingerprint pirated videos, it's a waste of time and money to attempt to stifle unwanted speech.
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  Richard Bennett

  7 months ago

  I agree with Adam that the ISPs have no economic incentive to filter political speech, I'm just saying we shouldn't rule it out in technical grounds. Filtering illegal downloads is easy as pie today, and it's a harder problem than filtering speech would be if somebody set his mind to it.
  
  Here's a thought for free speech advocates: invent a really cool technique for suppressing free speech and patent it. Don't license the patent, and you're golden, democracy rules. All hail the patent system!
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  Steve R.

  7 months ago

  In the ideal situation where the ISP is just providing the "pipe" there is no economic incentive to filter. However, when telecoms (as one example) are part of the network flow, there are economic incentives to filter. FreeConference.com Sues AT&T For Blocked Phone Calls
  Then there is the ye olde intimidation tactic: Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy
  For the really conspiratorial people like me, what happens if the RIAA starts to pay the ISPs a bounty for each pirate caught? Would ISPs filter for a profit?
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  Richard Bennett

  7 months ago

  There were other issues in the FreeConference situation relating to interconnect fees, so it doesn't say anything about content-based suppression of speech. And similarly, piracy mitigation isn't a free speech issue. Illegal activities are not protected by law.
  
  The studios and the RIAA are entitled to protect their legal rights, that's not really in dispute.
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  Steve R.

  7 months ago

  Ok, they have a right to protect their legal rights, but there are limits to that right. Their quest to protect their so called rights does not entitle them through the ISP to inspect my packets. Furthermore this violates due process. By analogy, they believe that they have a right to break into my house at their whim and search it just on the arbitrary belief that they may find something.
  
  Or to use another analogy, you should not be able to force a third party who just happens to be standing on the street corner to "protect" your property. If the content industry can somehow coerce the "third" party ISP to "protect" their so-called property rights, the concept of net neutrality will be a sham.
  
  Furthermore, if it is OK to inspect packets for the benefit of one special interest group for acts that may considered illegal, it doesn't take much of an imagination to see it expanded to other acts considered illegal in order to "save the children". It's a slippery slope.
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  Richard Bennett

  7 months ago

  Slippery slopes are everywhere, so I wouldn't worry about them. These issues about probable cause only apply to the government, as I understand them, but IANAL. Assuming there were something to it, the fact that you're hogging the pipe would probably constitute probable cause in any case, and inspection of content without retention doesn't have privacy implications.
  
  And if it did, all it would take is a small act of Congress to nullify these objections.
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  Ryan Radia

  7 months ago

  Filtering some, or even most, illegal traffic can be done if ISPs simply block all P2P. But what if they switch to HTTP? Or FTP?
  
  Digital fingerprinting becomes next to useless when full payload encryption is applied to the data. It doesn't make it impossible to figure out the protocol (that's what end-to-end tunneling is for) but encryption makes legal P2P traffic indistinguishable from illegal P2P traffic. Pirates have plenty of methods of trading infringing files without using easily identifiable protocols like Bittorrent. The same goes for pretty much any content that an ISP might have an interest in filtering.
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  Richard Bennett

  7 months ago

  The first thing to understand about piracy mitigation is that the goal isn't 100% detection, it's simply a significant reduction in piracy. That being said, the goal can be accomplished - and is accomplished today for the most part - by snagging File Hashes on the piracy indexers such as Mininova and Pirate's Bay. Join a swarm that's downloading a popular title and you have a list of all your peers, all out in the open.
  
  There will always be methods of so completely hiding a file that nobody can detect it, and some of these will never be addressed. But that's OK, the search for perfection isn't essential.
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  Don Marti

  7 months ago

  When a length of fiber optic cable runs through land taken by eminent domain, then that property was taken "for public use." Its unwilling seller and the rest of the public are entitled to neutral access. If you're going to respect private property, respect private property.
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  Richard Bennett

  7 months ago

  Via e-mail, Disqus tells me Ryan has responded to a couple of my comments with his own comments on fingerprinting and piracy bandwidth hogs, but I don't see the comments when I look for them here. Disqus is the Sarah Palin of blog commenting systems, unfortunately. I'll respond when Disqus feels like it's safe for me to do so.
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  Steve R.

  7 months ago

  Same here. My response to you hasn't shown up.I guess Disqus doesn't want to get anyone upset.
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  Richard Bennett

  7 months ago

  Apparently I can reply to your comment via e-mail. We'll see if this works.
  
  (later) Indeed it does, with a few formatting weirdnesses is all.
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  Tim Lee

  7 months ago

  Thanks for the plug Adam. And I definitely agree that it's important to remember that the First Amendment is directed at the government, not private firms.
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