Net Neutrality Vs. Title II – They Aren’t the Same

Since Title II passed I’ve seen a lot of articles that either indicate buyers remorse or have always been against Title II and are gloating that it’s going to be overturned. For example, Wired had an Op-Ed yesterday that used major points from Chairman Pai’s dissent against using Title II. Title II is clearly a divisive issue, as the guys over at KBMOD, where I also write, are completely divided over the supposed benefits of Title II. I sincerely hope that when we look back at this debate that we see this discussion as a confusing bit of history, because nothing happened. Where the Internet didn’t change and remained an open platform for everyone to easily and equally use.

Net Neutrality and Title II are not the same thing. Title II is an old law originally written in 1934 to regulate a single monopoly with the hopes of create more competition. It wasn’t successful but the legacy of Title II played an important role in the creation and development of the Internet. Title II was the policy regime that APRANET was developed. Whenever a scientist at MIT wanted to use a graphically powerful computer in Utah Title II was in full effect on that data system. Furthermore, Title II was the law of the land for all of dial up Internet. Which was actually a very good thing. The fact that there was Local-Loop unbundling meant that you could have an Internet service that was different than your phone company. It was also likely, given how low the costs were, that these ISPs didn’t have to pay many of the taxes that the Phone company did that you used to buy access to the Internet. We already know that Title II has and can foster a culture of innovation.

Net Neutrality is different than Title II because it was the architectural approach the initial designers took for creating the internet. There were a few key reasons for this, it was easier, required less computing power, and the majority of the early pioneers believed in what became the Open Source movement. In many cases it was the exception rather than the norm, early on, for scientists to patent their computer research. It’s likely because most of these researchers were Mathematicians and Physicists that came from a military background (WWI and WWII and all), so they weren’t used to patenting due to their educational background and the requirement for secrecy contributing to the war effort.

To provide preferential treatment to one packet of data over another required tools that simply would have prevented the data from arriving at its destination in a timely fashion in the 70’s. Remember this was during the time when a personal computer didn’t exist and computing used mainframes and terminals to do the work (interestingly we’re going back to that a bit with the cloud). This means that the routers would have had to have been mainframes themselves to decode the data and figure out what type of data it was before sending it to it’s next location. This was seen as a waste of computing power as well as an invasion of privacy. The point of the Packets was to help keep the data save and secure as much as to maximize capacity on lines connecting the computers.

One of the largest complaints about implementing Title II is that there’s not enough economic evidence to support it. I believe that to be true to some extent. It’s hard to forecast something that’s happening as it’s happening. Especially since the FCC was unlikely to get access, legally, to the Netflix-Comcast/Verizon deals to ensure equal access (or maybe preferred) to their lines. It was clearly shown by Netflix that Comcast/Verizon were intentionally causing issues they could easily resolve and they did immediately after they got paid. With Comcast/Verizon planning to foreclose the video streaming market in this fashion and violating the spirit of Net Neutrality, some sort of regulation was needed to prevent this foreclosure.

I would have rather not had any sort of regulation go into effect. However, I believe that the actions that Comcast and Verizon are taking are anticompetitive and anti-consumer. Time Warner Cable supposedly makes 97% profit on their broadband service, which isn’t a surprise whenever you have a local monopoly/duopoly for broadband.

Could there have been a better way? Yes, the FCC could have taken action that would have forced increased competition. Something like setting goals for every city in the US to have no fewer than 3 broadband providers and providing assistance to municipalities that wanted to develop their own to meet that goal. Ironically, the one provision not included in the Title II rule that would help with that is local-loop unbundling, which would reduce the cost of a new ISP entering the market as they wouldn’t have to build their own network, which has slowed Google Fiber down considerably.

Privacy and Public Places

Privacy is a tricky thing, there’s privacy of your home, expectations of privacy around mail, privacy related to digital devices, privacy in your car, and privacy in even more public places – each one of them we have different understood or assumed levels of privacy. These maybe different from person to person, but generally we assume in certain places that we’re pretty safe from being eavesdropped on. Furthermore, even though we often talk or talk on our phones in public we expect them to be relatively safe from being overheard, because most people simply don’t care about what we’re saying.

In the public there are some clear rules about what is free for police to inspect and what is not public. For example a police officer can listen to your conversations if they have the right equipment. It is possible for the police to photograph you as well whenever you’re walking around in public. Another place that is mostly a public place is actually your car. If anything is clearly visible on the seats through the windows it’s considered public. However, if something would be in your trunk or glove box the police officer cannot search it unless you give them permission, they have probable cause, or they have some sort of a warrant.

Recently the police and FBI have been using something called a “sting ray” which is effectively a middle man attack between your cell phone and the cell phone provider. The FBI believe, according to recent filings, that a stingray is something that they should be able to use in public without requiring a warrant. They argue that since the person on the cell phone is speaking in public they should have no expectation of privacy.

I think that this raises a lot of concerns. First, even if the sting ray is deployed in a “public” place there are definitely places that you can expect privacy. For instance if you live above a series of bars the bulk of the people that would be hit by the sting ray would likely be in a public place. Even areas that are mostly park still have areas that are private or might even be residential. For this to be even close to realistic the FBI would have to 100% certain that ever person possibly impacted this is in a public place.

Personally, I don’t think that this argument will fly. I believe that this is very similar in terms of technology used and methodology as GPS trackers on cars or more similarly is the GPS information from cell phones. Even if you are using a third party application or technology you still have the expectation of privacy. I believe that this should hold in this instance as well. You’re expecting your communication to be secure between your phone and the cell phone provider without anyone listening in.

I seriously hope that the FBI loses this, because I find the fact that using a technology like this to intercept my cell phone calls from going to the cell provider to be terrifying and if a similar technology was used by any one other than the authorities, they would be on charges for computer fraud and likely put in jail for a very very long time.

Driverless cars aren’t without ethical quandaries

While driving home the other day I was thinking about the new Google Driverless car stuff that I’ve seen. It’s an interesting looking vehicle, see it below. Apparently, one of the reasons why Google went fully autonomous was that people would be first hyper vigilant, then so lazy that they completely trusted the car in any and every situation.

Google’s fully automated driverless car

I believe it’s likely that the first round of driverless cars won’t be fully automated. Data will eventually show that the fully automated cars are perfectly safe, but we’re a paranoid lot when it comes to new technology. I also think that there are definitely risks with a fully autonomous car in regard to hacking and spoofing the system. I have a feeling that will become a game with hackers to try to trick the car into thinking that a direction is safe when it is actually not. To continually combat these risks Google will have to make it very easy to update the software, possibly while driving, as well as the hardware. I believe this is one of the many reasons why Google just announced their 180 internet satellites that they will be launching soon.

However, I think that the best of intentions will likely lead to some serious issues for Google and law makers in the next few years. For some of them an author at the Guardian wrote a few of them. That being said, I think that the first cars will not be fully automatic until enough data comes into show they are safe going highway speeds consistently. I think that this will lead to issues for Google.

One of the things that is missed in the Guardian article above is that if you’re an Android user, those very things could happen already. Your phone already tracks not just GPS but also nearby cell towers, so you could very easily subpoena either Google or your cell provider for records of your whereabouts. However, the interesting thing that Google talks about in regard to safety, is that drunk driving will be a think of the past.

As I mentioned before I think that there will be a manual mode and I think there will have to be one for a while because of definite hacker threats. You’d need to override. I also think that this would require a mechanical switch that literally overrides the system. The system would still run, but would not be able to override the human driver. Maybe I’m just paranoid, but I don’t think that anyone can create a truly secure vehicle like this and if one is compromised then all of them would be under the exact same risk.

Now, let’s say a guy goes out drinking. Google knows where he is. Google knows that he took pictures of his shots Instagraming “#drinktilyoublackout!”. Google also knows that he texted a few friends through Hangouts fully integrated texting capability. Furthermore, he tweets to @Google “Getting Black out drunk no #DD #DriverlessFTW”. This guy then gets into the car, switches it to manual override for whatever reason gets in an accident, who is at fault here? Clearly the guy that’s driving right? Well, if he had a fully automated car with no other option he’d not hurt anyone. Google knows everything he’s doing. Google knows everywhere you go already because of how their devices work. The difference is now that they can control where you’re going and how you get there.

Is Google responsible for building a car with a manual override that could save people’s lives in other instances? Is the State responsible for mandating that Google put in that switch? Should Google have built in safety measures that make the user go through a series of actions or prove the driver is capable of overriding the car?

I think that we need to hash out all of these before these cars are allowed on the road. I also think it’s going to be vitally important that we understand what happens with that data from all our cars, who can access it, and if we really have any privacy in a fully automated car like that. Simply by participating in our culture with a cell phone we’ve already eroded our privacy a great deal in both the public and private realm. Driverless cars will further impact that and will likely end up being a highly political issue over the next several years. Taxis, Lyft, and Uber will be out of business – the Car2Go model will beat them out any day of the week if the cars are autonomous. Direct to customers, like Tesla is pretty obvious. Lots of changes are going to happen through these cars.

We can’t just let this happen to us, we need to make decisions about how we want to include driverless cars in our lives. They aren’t inevitable and definitely not in their current incarnation.

The EU goes Net Neutral

If the EU had voted against strong Net Neutrality laws there would have been a serious problem between a few national governments and the supra-government of the EU. A few years ago the Netherlands became the second country in the world to fully support Net Neutral principles. Furthermore, the EU level Telecom and internet lady is Dutch, Neelie Kroes. She’s been very vocal supporting Net Neutral and “Internet Freedom” since I started following her a few years ago.

I’m not really surprised by this law passing. The EU has been under less influence of many companies than the US government. Additionally, net neutrality inherently has more privacy built into the system. It limits the requirements of deep packet inspection – because there’s no shaping based on the content of the packets, just the amount of packets. Ideally, this will mean that there is less capability in the network for deep packet inspection.

This could lead to some difficulties in the differences between US ISPs and EU ISPs. I’m interested in the ramifications of throttling across the different continents. Clearly someone getting content from a company in the EU won’t want it to be throttled in the way that Netflix has been. It could create some legal ambiguity and issues. I’m going to be watching how all of that resolves.

Is Net Neutrality regulation commie nonsense?

Network Economy

Regulation’s a bad thing, right? Personally, I think there are instances where regulation is an amazingly good thing that drives innovation. We also need to be cautious about who is saying regulation is good or bad. Back in the 90’s we’d hear that regulating in anyway to prevent acid rain would cripple business and kill our economy. This clearly didn’t happen, we have acid free rain for the most part, we have more productive manufacturing than ever. We also hear that regulating CEO pay by median rather than average is significantly more complicated to the point that a place stacked full of MBA’s can’t figure it out. Then there are regulations that pick winners like Solyndra and turns out to be a disaster. These cause higher taxes and are actual drains on the economy (personally I’m on the fence about experimenting with new technologies and having the government support them, but that’s me).

What about the FCC “regulating” net neutrality? I think that it’s important to look at how this all started. First, I’ll start with a bit of a history with the telecoms, then move to how the internet was developed, and move to comparisons between other monopolies.

AT&T has been described as a natural monopoly. This was partially helped by the US government because the government wanted coast to coast telephony and selected AT&T as the standard for that activity. This gave AT&T incredible market strength, but was also extremely fragile as it was continually under threat of being broken up for being a monopoly (which is was). To do everything they could to avoid this, the geniuses at Bell Labs continually designed ways to keep their costs down, improve quality, and make very thing better. They also had some government deals that helped them a lot (military contracts for telecom stuff, like the first satellite). The value of AT&T’s network grew every time a person joined the network.

The fact that one person joined Network A over Network B could further impact the growth of that network. Let’s say Person A is friends with 5 people and is already on Network A, it’s likely, if they are really good friends and A is known for making good decisions, that those five people will join A on Network A. The value increases by more than simply 5, because all five of those people can talk to each other as well as every other person they know on Network A. Now if Person A has more friends, but not as good of friends and they actually are better friends with Person A’s friends they will also likely join Network A. This sort of cascade effect will continue to happen. This is also known as Metcalfe’s law.

When AT&T was force to break up, all of that interoperability remained. Instead of one big monopoly there were regional ones instead. As we’ve seen over time, these same regional operators have slowly re-joined back into 2 Bells versus the non-Bells. AT&T being split is a type of regulation for sure, but it did spur some interesting competition for a time.

How the Internet was designed:

The internet was originally designed to operate in many different application layers. Essentially the bottom of the stack was Internet Protocol which was agnostic to the type of information being sent across it. At the time, the most efficient method was over Ethernet so there was not any requirement to be concerned over the application medium. Over time there would be some concern, but that was really addressed by the protocol.

What would happen is that the applications that required information to be sent on either end would translate the information to be used by the layer below it to send out, such as a web browser to the OS, to the network driver to IP, across the internet to the network driver to the OS to the web server application. Across this entire process the actual data being sent was unknown to any of the nodes in between the application layers. (If you’re interested in this check out Internet Architecture and Innovation).

Of course the companies providing the bandwidth for that did not want to find itself in a similar role as they had after the break up of AT&T where they were forced to become “dumb pipes” for whatever people wanted to send across their network. To prevent this they created capabilities like deep package inspection and other tools to identify what content was being shipped across their lines. This also was the beginning of violating “True” net neutrality.

Why were they dumb pipes? Because they were defined as a common carrier to increase competition across the land line providers and ISPs the telephone companies had no choice. This lead to the explosion of ISPs like AOL, Century Link, and so on. What has happened since? The broadband lines have been ruled that they are not “Common Carriers“. Meaning that the data across the line can be treated however the companies that own the lines want.

Why is this bad in a network economy?

In a network economy, being able to fully control anything and everything can be very bad for the consumer if there is no other option. Now, you could argue that there are options, but in most cases because of other monopoly rules there are few options for allowing a new ISP.

A perfect example where a network monopoly isn’t a big deal is in Smart Phones. The iOS App Store is a natural monopoly in a network. The more people using the iPhone the more valuable it became and more app developers developed apps. It never became a problem that Apple regulates the entire experience BECAUSE there were other networks you could shift to, such as Blackberry, webOS, Windows (whatever mobile version you want to include), and, of course, Android. All of these ecosystems offer very different options for devs. Additionally, within Android there are competing App stores which further benefits the consumer. If there were no other competitors to iOS and it’s App Store the constraints that Apple puts on their product would likely be viewed as very anti-competitive and a type of “foreclosure.”

Market foreclosure is using one monopoly to enable another monopoly. Now, regardless of if you think that this should have happened or not, it did. Microsoft was hit for using it’s Window’s OS to foreclose on the internet browser market and was looking to do the same with their music player. What resulted was that MS was required to offer other browsers when a new Windows OS was launched and helped to reduce the market share of IE.

How does this apply here? Comcast is already trying to do the same with Netflix in the streaming video business. Comcast owns the content (Universal, NBC, etc), the connection (Comcast Cable ISP), the rules (data caps), and if they want to charge to access their network or not. Eliminating the rules of net neutrality tilt the table in the direction of Comcast to a degree that Netflix may never recover. If Netflix, at one point 2/3 of all internet traffic, had to pay for every bit they streamed to allow for an enjoyable streaming experience they would be bankrupt in very short order.

I get that Comcast’s of the world don’t want to be dumb pipes, they own the content and that’s king. However, not every ISP owns content (Verizon/AT&T) so they aren’t at such an advantage to companies like Netflix. However that’s where AT&T’s data plan comes in. Which would essentially level the table compared to Comcast. We, as end users, wouldn’t see any benefit out of this. It’s not that our subscription fees would lower or we’ll magically get faster internet. This is simply rent seeking behavior and bad for the economy overall. Only true new competition can lead to that. Changing these rules have zero impact on that competition.

What it does do though is negatively impact the creation of new businesses that want to stream video or provide a novel product that requires high bandwidth and equal rights to streaming. Removing the protections on net neutrality dramatically increases the cost of streaming that otherwise could go into building that startup’s infrastructure. Think of the problems at Twitch.TV with their growth. My subscription fees pay for the growth of the network that I subscribe to regardless if it’s something like Twitch or Comcast. Anything else will go to shareholders and CEOs.

Could we develop other options like a Mesh network? It’s possible, but for that to work the option would have to be a public/private venture. Most citizens aren’t going to help create that and likely don’t have the technology savvy to do so. To further complicate this issue many ISPs are actually pushing to make it illegal for cities to create their own ISP.

In many cases regulation is bad for business. However, in cases like net neutrality it’s returning the net to it’s roots and enabling much stronger competition based on the merits of the company providing the service, not the arbitrary whim of network owner.

Failure of DMCA and TPP is going to be worse

It should come as no surprise to many of my readers that I’m not really a big fan of DMCA. I believe that this law hinders innovation in the arts and sciences. I you are interested in a very nuanced and well articulated argument against Copyright, I suggest you download Lawrence Lessig‘s book Code 2.0 – it’s a law book, but it’s free and interesting. However, I have written about this topic before if you’re like a bit of a synopsis.

The DMCA is a law that requires companies to help copyright holders manage and protect their copyrighted material. This results in something called a Take Down Notice, where the company that receives the take down notice must remove the offending material. In many cases the copyright holders are requiring companies like Google to create tools to allow them to automatically search for offending material.

Growing number of Take Down requests

Growing number of Take Down requests accessed 1/5/2014

For a growing company like Twitch.TV which streams live video game broadcasts and services several hundred thousand viewers at once, may cripple them in the future. According to a recent George Mason University study, the DMCA take down notice process has been a complete failure. The law was never intended to function in the manner that it has been.

The take down notice was designed as a stop gap measure and compromise between copyright holders and the new technologists on the web. The DMCA was passed in 1998, most of the internet that we know and love didn’t exist then. It was likely that only a few people had even started using Google when the law was passed, YouTube was nothing more than a pipe dream, Napster and sites like it were the major driving force for this law.

Over the past few years we’ve had several attempts to expand on the DMCA and make matters significantly more restrictive on the Internet. For example we had the SOPA/PIPA, CISPA laws that the internet killed with a blackout. The blackout is an example of what Rebecca MacKinnon argued in her book “Consent of the Networked” where law makers need to look at the interconnectedness of the world and how these laws reach beyond our boarders and impact the broader world.

Unfortunately, these types of laws aren’t dead and DMCA isn’t going away despite what GMU recommends. Currently TPP is working it’s way through the “Fast Track Process” (fast track essentially allows the President to enter into trade agreements powers not authorized by the Constitution) and if it is successful there are copyright provisions that are very damaging for both Copyright Law and Patents. The copyright provisions are stronger than DMCA, similar to SOPA, and would force all signers to follow the rule of the trade agreement over their own established laws, including the US. If you are interested in reading TPP here’s the full agreement for download at Wikileaks.

What can we do to prevent TPP from making our copyright lives worse? Well, it appears there’s limited things we can do. Of course you can contact your representatives, however, Darrel Issa was already refused to see the agreement. However, more interest from the general population can only be a good thing. We’re going to have elections this year in the US, so it’s a good idea to get people thinking about this trade agreement now and stop it before it’s ratified.

Some thoughts on gun issues

I posted the following as a comment to my brother’s comment about gun control. He’s a boarder patrol agent. Basically he commented about how allowing guns (in the right hands) can save lives. He also argued that if you take guns away from most people only criminals will have them. As most of you know I love to shoot guns. I’ve shot all sorts of guns from pistols to an AR15. I think it’s fun and a good way to enjoy some time with your friends. That being said, here’s my comment to him.

“Alright, I’ve been hearing a lot about how gun control won’t fix the problem. You know I like shooting guns and do believe that we should be able to own guns. Now, I think that there needs to be some level of gun control/additional checking before gun purchases are made but I’m not exactly sure what that is. Secondly, simply saying criminals won’t follow the law isn’t a suitable answer either because there’s no completion of the thought. If criminals won’t follow the law, why are they criminals in the first place? What do we need to do to eliminate their supposed need for the gun to commit said dubious act?

I believe that to truly eliminate (or greatly reduce gun violence) we need to address the root cause, gun control alone won’t work. We have to address the reasons for the criminality. Those include, poverty, inequality, drug addiction, sale of drugs, unemployment, being a convicted felon and so on. All of these causes have significant interaction effects. You can’t separate sale of drugs from drug addiction and drug usage is higher in impoverished areas. So, this indicates to me that we need to address the root cause issue behind poverty and drugs. The extralegal crimes related to drugs include things like murder over turf wars and the sort of activities you’re involved with as a boarder patrol agent, smuggling, etc… We as a society have direct control over what is a legal and illegal drug. We have control over this – it’s a matter of do what we consider the right thing to do about drugs.

The other obvious area we need to address is mental health, which has a different root cause than the others. Many people can’t afford the mental health they need because we as a society don’t value mental health very well and many insurance companies think it’s a waste of time.

In my mind I think that if we want to address the true root cause behind gun violence we need to address poverty, drugs, and mental health. Unless you or anyone else for that matter, is willing to seriously consider fixing many of these issues, then gun control is one of the few options we have to address it. It’s a failed option from the start because it’s a band aid. In my opinion all gun advocates need to pull together and push for reform on those social issues I outlined to keep guns ownership legal as you think it should be. Otherwise we are doomed to repeat this sort of cycle.”

Yes, this is something of a rant, but I think we need to really consider what we value as a culture and how we decide to address an issue like gun control. The events at Sandy Hook and other locations in the past 2 years around the world are horrible.