The Hidden Danger in Title II for Tech Companies

Marketing guru Seth Godin recently posted a blog supporting net neutrality as a way to keep internet companies from censoring content they don’t like. His piece brings up an interesting point that the tech community needs to think through before we go too far down the road of regulating the internet.

Godin asks this question – “What if the search engines or ISPs decide to ‘disappear’ content they don’t like?” (emphasis added)

The point begs a very interesting question – If, as Godin proposes, regulation of the internet is required to eliminate the threat of censorship, where would that regulation of the internet stop? Once it applies to ISPs, who else would then need to become subject to net neutrality regulations to ensure that the desired result for the public was accomplished?

First off, while it would be difficult to find more than a couple instances of ISPs removing content, it’s not a hypothetical with search engines and other web applications. They already “disappear” content on a regular basis that runs afoul of their terms of service or, in certain cases, when a government asks them to.

If stopping censorship is the rationale behind adopting regulation, why would the FCC not subject search engines and other applications to the same regulation as the ISPs?

The net neutrality crowd at this point will likely throw Godin under the bus and say – “well, we liked his argument but that’s not the real reason to regulate. We really want to stop the giant greedy corporations that have invested tens of billions of dollars in their networks and employ over 700,000 people from creating slow lanes on the internet and discriminating against companies they compete with. That’s really why we need Title II regulation.”

Okay. The problem is that just as ISPs and the services that ride on them both have the ability to censor content, they also both have the ability to manage traffic. ISP traffic management methods are well documented. Applications manage traffic by choosing, in real time, which of the 40+ internet backbone transit providers will carry traffic generated by their applications and websites.

Why does this matter? Well, what if a search engine or other application decided to route its content over a network that it knows is congested?

This, also, may not be hypothetical. It is now believed by some that the network slowdown that compromised NetFlix’s service back in February and March was actually engineered by NetFlix to embarrass large ISP’s like Comcast and Verizon during their transit negotiations. Cogent, a backbone transit provider used by NetFlix, has admitted that it limited NetFlix’s wholesale traffic because it was slowing down its retail customers’ (more profitable) data transfers. At issue is why NetFlix continued to use Cogent to transfer its content to those networks, even as it had to know that Cogent’s service quality was significantly degraded compared to the other transit providers it had relationships with and could have used.

NetFlix’s Open Connect architecture is part of the physical network, they are not just a software application. Even if NetFlix didn’t have its own network facilities, if the object is to provide a uniform experience (no “slow lanes”), why would the FCC stop with the ISPs and not regulate a company like NetFlix that controls much of how the network is used and experienced by the consumer?

And it’s not just NetFlix. Think of the other web and mobile applications that look and feel a lot like a “telecommunications service” to the consumer. Examples include: Snapchat, and other videoconferencing services like ooVoo, Tango and Fring; IM services such as WhatsApp, MasSMS and more; as well as consumer direct food delivery services like Chownow, Tapingo and Seamless.

If we have learned one thing as a society, it is that the tendency of regulation is to expand, not contract. Applications and services, especially ones that already have telecom-like features and/or the ability to manipulate the network to degrade the customer experience, would be a natural next step if Title II regulation of the internet is adopted for ISPs.

The technology community needs to take a long hard look at all of the possible ramifications of Title II regulation of the internet. My guess is that a different approach using a lighter touch will start to look better and better.

Written by: Stephen Loftin, GCA Executive Director