Data discrimination

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Data Discrimination is the selective filtering of information by a service provider over a network. This has been an issue in the recent debate over net neutrality. ^[1] Non-discrimination mandates that one class of customers may not be favored over another so the network that is built is the same and every network user has equal upload and download capabilities.^[2]

Net neutrality

The principle of equal treatment of traffic, called "Net Neutrality" by proponents, is not enshrined in law in the United States but is supported by some regulations. Most of the debate around the issue has centered on tentative plans, now postponed, by large Internet carriers to offer preferential treatment of traffic from certain content providers for a fee.^[3] Network neutrality is a set of rules that forbid network owners from discriminating against independent applications (instead of against competing ISPs, as with open access).^[2]

Internet censorship

The concept of freedom of information has emerged in response to state sponsored censorship, monitoring and surveillance of the Internet. Internet censorship includes the control or suppression of the publishing or accessing of information on the Internet. Data discrimination may also occur on a national level to censor of political, 'immoral' or religious material content.

For example, China^[4] and Saudi Arabia^[5] both filter content on the Internet, preventing access to certain types of websites. Singapore has network blocks on more than 100 sites.^[6] In Britain, telecommunication companies block access to websites that depict sexually explicit images of children. In the United Arab Emirates as of 2006, Skype was being blocked. In Norway, some ISPs use a voluntary filter to censor websites that the police (Kripos) believe to contain images of abuse of children.^[7] Germany also blocks foreign sites for copyright and other reasons.^[8] In the U.S., public institutions (e.g. libraries and schools), by law, block material that is related to the exploitation of children, and 'obscene and pornographic' material, unless they do not receive funding. The network filters also block sites and material relating to women’s health, gay and lesbian rights groups, and sexual education for teenagers.^[9][10]

Debate over Data Discrimination

Viewpoint of Pro-discrimination advocates

While the basic principle of data discrimination is censorship, those in favor of this practice claim that there are benefits. The ISPs are a business, and as such, “…correctly state that external, non-market driven constraints on their ability to price discriminate can adversely impact their incentive to invest in broadband infrastructure and their ability to recoup that investment.”^[1] There are times when it could make sense, in the eyes of the ISPs, to give preference to one type of content over another. For example, loading a plain text and image website is not nearly as strenuous as loading sites such as Hulu and YouTube. Frieden states that, “Some Internet Service Providers (ISPs) seek to diversify the Internet by prioritizing bitstreams and by offering different quality of service guarantees. To some observers, this strategy constitutes harmful discrimination that violates a tradition of network neutrality in the switching, routing and transmission of Internet traffic.”^[1] While the QoS argument is that network neutrality rules make allowances for network owners to practice some types of discrimination to protect the functioning of the network.^[2]

Harmfulness of Data Discrimination

Those that oppose data discrimination say that it hurts the growth of the Internet, as well as the economy that is rooted into the depths of the Internet model. “Instead of promoting competition, such picking of winners and losers will stifle the investment needed to perpetuate the Internet's phenomenal growth, hurting the economy.“^[11] If, for example, telecommunication network operators blocked data packets of Voice-over-IP services that might substitute their own telephone services, this would not only discriminate against specific firms, but also reduce competition and economic welfare. Technically, this would not be a problem. Although data packets are homogeneous with respect to switching and transmission treatment, type, source, and destination can be revealed and data packets be handled differently if a network operator prefers to do so.^[12] Another problem is that the type of data that is given preferential treatment is up to the discretion of the ISP. This allows them to move data as they see fit, whether it be through a political, moral, any other such kind of "lens". This goes against the first amendment, the freedom of speech because by stopping certain kinds of information from reaching the end user, they are censoring content. It is not the place of the ISP to censor content from the people.

The real threat to an open Internet is at the local network (the ends), where network owners can block information coming in from the inter-network, but it also is at the local network where the most harm can occur. Because of this, network neutrality rules allow some discrimination by the local network to protect itself, though it may not be based on content or type of application. For example, network owners want to protect their networks from being damaged. So, some discrimination is allowed to "prevent physical harm to the local Broadband Network caused by any network attachment or network usage." This means that local network operators may not control which types of applications users choose to employ, what type of devices users use to access the network, or which type of legal content users choose to convey or consume. The only allowable restrictions are on applications that cause harm to the local network.^[2]

Proponents of network neutrality concede that network security is crucial enough to warrant making exception to a network neutrality rule. Allowing network providers to deviate from neutrality only to the extent necessary to protect network trustworthiness is rooted in judicial and regulatory decisions and administrative rules that helped establish the principle of nondiscrimination as the core of network neutrality.^[13] Sen. Al Franken has spoken out on FCC rulings “calling net neutrality the 'free speech issue of our time,'” Franken (D-MN) expressed his displeasure with the FCC’s recent net neutrality rules. ‘These rules are not strong enough,' he said, pointing out that paid prioritization was not banned and that wireless networks are allowed to discriminate at will. The rules mark the ‘first time the FCC has ever allowed discrimination on the Internet’ and they ‘will create essentially two Internets.’^[14]

The FCC and Data Discrimination

In the United States, the Federal Communications Commission does not permit data discrimination except for "reasonable traffic management."^[15]

The Federal Communication Commission defines reasonable traffic management as follows:

A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.^[16]

It is considered unreasonable for internet service providers to manage traffic by blocking applications or assigning quality of service based on source, destination, or unreasonable application provider payment.^[17] Regardless, there are currently no laws prohibiting internet service providers from offering different service plans that may restrict consumers' access to selected material.^[18]In June 2007 the Federal Trade Commission (FTC) published Broadband Connectivity Competition Policy which suggested that it may be beneficial to consumers if broadband providers would pursue a variety of business arrangements, including data prioritization, exclusive deals, and vertical integration into online content and applications. The report also suggests that government should move cautiously in implementing any changes to current regulations.^[19]

FCC Appeals

• Verizon Communications filed an appeal against the FCC in the United States Court of Appeals for the DC Circuit on January 20, 2011. The FCC's rules aim to prevent Internet service providers from blocking certain websites or applications. Verizon's appeal claims that the FCC has overstepped its authority and that the rules violate the company's constitutional rights. The company says that the net neutrality rules modify the terms of existing licenses held by Verizon. Rather than launching a lawsuit that directly challenges the regulations, the company is appealing the rules as an illegal change to their existing licenses.^[20]
  • “It has been a very long and drawn out fight, and it has certainly distracted the FCC for the last year. It has distracted the carriers as well, who have spent a lot of time, effort and money in terms of publicly fighting about it and privately fighting about it," says Larry Downes an industry consultant and author..."It is very, very unlikely that AT&T will file suit," said Downes. "They've said publicly and repeatedly that they are comfortable with the net neutrality order and I take that as a pretty strong indication that they are not going to litigate it."^[21]

Evidence of Anti-competitiveness

During a hearing held by Rep. Greg Walden, one of the speakers put forth a question that needs to be addressed by the FCC, as well as other groups that are in support of Net Neutrality. The speaker said, "If the mere threat of Internet discrimination is such a concern and if the FCC has done no analysis to demonstrate why one company has more market power than another, why would discrimination by companies like Google or Skype be any more acceptable than discrimination by companies like AT&T and Comcast?"^[11] During the same hearing, a different member spoke up and quoted Section 230 of the Communications Act saying, "...preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by federal or state regulations." essentially saying that there should be laws in place so that the government knows how to handle its authority over the FCC and ISPs. He did not say that these laws are not laws meant for regulating what the FCC does, but how the FCC should act.^[11]

In 2005, a small North Carolina telecom company, Madison River Communications, blocked their DSL customers from using the Vonage VoIP service. Service was restored after the Federal Communications Commission (FCC) intervened and entered into a consent decree that had Madison River pay a fine of $15,000.^[22] In this case, the FCC investigated allegations that Madison River violated nondiscriminatory obligations contained in the Communications Act, but the redefinition of broadband as an information service dramatically reduces the authority of regulators to deter this kind of competitive misconduct.^[23]

As Anti-Piracy

• “Network-level filtering means your Internet service provider – Comcast, AT&T, EarthLink, or whoever you send that monthly check to – could soon start sniffing your digital packets, looking for material that infringes on someone’s copyright. “What we are already doing to address piracy hasn’t been working. There’s no secret there...""^[24] This may be one of the major reasons that ISPs want to be able to discriminate against certain data types. Ever since the dawn of peer-to-peer file sharing, both the MPAA and the RIAA have been hounding ISPs to divulge any and all information relating to file sharing. With the implementation of data discrimination, that file sharing data can be, and will be, thrown to the bottom of the pecking order. This will render any kind of sharing, even the kind that isn't deemed illegal, useless because the transfer speeds will be unusably slow.

Instances of data discrimination

Worldwide, the BitTorrent application is widely given reduced bandwidth or even in some cases blocked entirely.^[25] Worldwide, under heavy attack from spam e-mail, many e-mail servers no longer accept connections except from white-listed hosts. While few care about the rights of spammers, this means that legitimate hosts not on the list are often blocked.^[26]

Save The Internet, an advocacy organization led by Free Press, is documenting situations in which ISPs have engaged in data discrimination.

• In 2005, Canadian telephone giant Telus blocked access to voices-for-change.ca, a website supporting the company's labour union during a labour dispute, as well as over 600 other websites, for about sixteen hours after pictures were posted on the website of employees crossing the picket line.^[27]
• In April 2006, Time Warner's AOL (America On Line) blocked all e-mails that mentioned www.dearaol.com, an advocacy campaign opposing the company's pay-to-send e-mail scheme. An AOL spokesman called the issue an unintentional glitch.^[28]
• In February 2006, some of Cox Cable's customers were unable to access Craigslist because of a confluence of a software bug in the Authentium personal firewall distributed by Cox Cable to improve customers' security and the way that Craigslist had their servers misconfigured. Save the Internet said this was an intentional act on the part of Cox Cable to protect classified ad services offered by its partners. The issue was resolved by correction of the software as well as a change in the network configuration used by Craig's List. Craig's List founder Craig Newmark stated that he believed the blocking was unintentional.^[29]
• In August 2007, Comcast was found to be preventing or at least severely delaying uploads on BitTorrent.^[30] These claims were verified in October by the EFF^[31] and Associated Press.^[32]
• In September 2007, Verizon Wireless prevented a pro-choice organization from sending text messages to its members coordinating a public demonstration, despite the fact that the intended recipients had explicitly signed up to receive such messages.^[33]
• On February 4, 2010, Verizon Wireless blocked 4chan, an English language imageboard from being accessed by its customers. A few days later, on February 7, 2010, Verizon Wireless confirmed that 4chan had been "explicitly blocked", offering no explanation. The block was lifted a few days later.^[34]
• In a March 2009 Freedom House report on Internet and digital media censorship world-wide, Egypt scored a 45 (out of 100), slightly worse than Turkey but better than Russia. Cuba scored a 90, making it more Net-censored than even Iran, China and Tunisia. Cellphone service is too expensive for most Cubans.^[35]
• Comcast Corp. actively interferes with attempts by some of its high-speed Internet subscribers to share files online, a move that runs counter to the tradition of treating all types of Net traffic equally. The interference, which The Associated Press confirmed through nationwide tests, is the most drastic example yet of data discrimination by a U.S. Internet service provider. It involves company computers masquerading as those of its users. Comcast's interference appears to be an aggressive way of managing its network to keep file-sharing traffic from swallowing too much bandwidth and affecting the Internet speeds of other subscribers.^[3]
  • If widely applied by other ISPs, the technology Comcast is using would be a crippling blow to the BitTorrent, eDonkey and Gnutella file-sharing networks. While these are mainly known as sources of copyright music, software and movies, BitTorrent in particular is emerging as a legitimate tool for quickly disseminating legal content.^[3]

References