Comcast and the Slippery Slope

- thoughts on Broadband 'Net Neutrality', Comcast, the Courts, the FCC, and why everyone seems to be missing the point.

There has been much chatter in the news this past week regarding the recent D.C. Appeals Court decision in favor of Comcast, supporting the premise that the FCC lacks authority to require that broadband service providers give equal access and treatment to all Internet traffic passing through their networks. Everyone talking seems to think this lawsuit was about commercial issues such as unfairly requiring carriers to offer passage through their networks to just any traffic.

I beg to differ.

I believe that the core issue here was accountability and I applaud Comcast for helping force it into the open by obtaining a judgment that, in its essence, makes clear that Comcast and their peers can and should be held responsible for the things that pass over their networks. Yes, I understand that this was not the intent of their lawsuit. I acknowledge that the popular broadband service provider was focused squarely on their perceived right to decide how the resources they provide are used. I also understand that classifying such resources as common carrier services, as the FCC's position would, somewhat impacts the industry's financial bottom-line in a negative way. But what Comcast clearly did not recognize was that their argument supporting these financial concerns drops it squarely onto a very slippery slope with much broader impact and could open the entire US broadband industry to a slew of criminal and liability lawsuits.

Here is my reasoning. Essentially, Comcast (with some help from AT&T and Verizon) argued that they should be able to sell premium services on their expensive networks, and are allowed to manage the network systems involved to prevent certain applications from hogging their capacity. However, while claiming that they have the right to restrict traffic based on the application generating the data, they made clear that they have the ability and resources to monitor and restrict any traffic in very specific ways.

In my mind this begs a very important question: If broadband carriers have the resources to perform such monitoring and management of their networks, why are they willfully allowing illegal and unethical activity to pass over these networks?  As I see it, the argument which the D.C. court has just unanimously validated clearly affirms that many broadband carriers in the US are likely in violation of a multitude of federal, state, and local laws encompassing issues such as tax evasion, pornography, gambling, identity theft, and unlawful cyber intrusion. After all, doesn't it follow that if Comcast has the resources to identify BitTorrent traffic reliably enough to deny it access to backbone resources, that they are equally able to identify other traffic in real-time.

Consider tax evasion - everyone's favorite April subject. Since the widespread adoption of the Internet - state, local, and international government agencies have complained that they are loosing massive amounts of tax revenue through unreported interstate and international commerce. Couldn't backbone providers easily detect illegal commercial transaction traffic? If they knowingly allow such traffic to flow aren't they an accessory to tax evasion? Well, some would argue that this one is a little bit of a stretch, so...

Consider pornography. Many US state and local governments have laws classifying internet distribution of pornography as a form of illegal prostitution. Shouldn't broadband carriers now be held liable for violations of these laws if they allow such traffic to traverse network segments in legislated areas? Certainly, since they could easily identify the offending websites via DNS name and/or IP address, they are liable for aiding distribution to consumers in these localities. Not convinced?

Consider illegal gambling. This one should be a slam-dunk. With a few very specific exceptions, gambling is illegal in the US (online or otherwise). Broadband carriers do nothing to restrict access of US customers to online gambling sites. If, as their anti-net-neutrality arguments make clear, they are fully capable of policing traffic over their networks sufficiently to prevent access to illegal gambling sites; aren't they flagrantly aiding and abetting illegal internet gambling? And last but not least...

Consider identity theft and unlawful intrusion - more specifically, malware distribution. The practices of malware distribution and identity theft involve spam, intentionally infected websites, and various other block-able known points of origin. A vast amount of such harmful activity impacts the average user every day. If our broadband carriers are resourced enough to protect themselves from applications they feel hog precious resources - why aren't they applying these resources toward protecting us, their paying customers and users? Doesn't this behavior on their part amount to willful negligence that causes harm to us, their customers, and themselves as well? Botnets, installed by malicious code, hog the same resources as file-sharing applications. Worse, by not protecting their customers adequately, they facilitate the theft of resources from their customers' computers and foster an environment which, instead, enables the criminals.

If you have not guessed by now, I'm not at all convinced that broadband providers should be excluded from classification as Common Carriers, though the D.C. Court of Appeals clearly was. However, regardless of the ultimate outcome of the issue, presuming that the FCC will now appeal to a higher court, I am afraid that these service providers may have been willfully misleading law enforcement with regard to their ability to better police their resources in the public interest. Consider the Unlawful Internet Gambling Enforcement Act (UIGEA) which took effect January 19, 2009. Taking at face value the broadband industry assertion that blocking illegal internet gambling sites would constitute an excessive burden, lawmakers focused the UIGEA on credit card companies; electing to ignore the prospect of attacking the problem at its source.

Personally, I am glad to see that Comcast, with full industry support, has fired a shot into their industry's foot, exposing a significant aspect of broadband carrier hypocrisy. Unfortunately, unless their customers, law enforcement agencies, and the media hold them responsible for their actions (and inaction), the broadband industry will continue to blithely ignore their responsibility to paying customers and the general public.