Over 190 Engineers & Tech Experts Tell The FCC It's Dead Wrong On Net Neutrality

from the that's-not-how-any-of-this-works dept

There's now 11 million comments on the FCC's plan to kill net neutrality, a record for the agency and a significantly higher output than the 4 million comments the FCC received when crafting the current rules. And while many of these comments are fraudulent bot-crafted support for the FCC's plan, the limited analysis we've seen so far suggests the vast majority of those organizations, companies and individuals prefer keeping the existing rules intact. And most people generally understand that removing regulatory oversight in the absence of organic market competition doesn't end well for anybody not-named Comcast.

One of the more notable recent filings (pdf) from this tidal wave of opposition comes from a collection of engineers, technologists, professors, current and former IETF and ICANN staffers, and numerous network architects and system engineers. Collectively, these experts argue that the FCC is not only making a mistake in killing net neutrality protections, it doesn't appear to understand how the internet actually works:

"Based on certain questions the FCC asks in the Notice of Proposed Rulemaking (NPRM), we are concerned that the FCC (or at least Chairman Pai and the authors of the NPRM) appears to lack a fundamental understanding of what the Internet's technology promises to provide, how the Internet actually works, which entities in the Internet ecosystem provide which services, and what the similarities and differences are between the Internet and other telecommunications systems the FCC regulates as telecommunications services.

This shouldn't be particularly surprising to you if you've watched FCC boss Ajit Pai wage a facts-optional assault on net neutrality, ranging from claims that the rules actively encouraged dictators in Iran and North Korea, to claims that ISPs are utterly innocent of anti-competitive behavior, but Netflix was violating net neutrality simply by running a content delivery network (CDN).

But the engineers single out numerous technical mistakes in the FCC's Notice for Proposed Rulemaking (NPRM), including incorrect assessments and conflation of the differences between ISPs and edge providers (Netflix, content companies), incorrect claims in the NPRM about how the transition from IPv4 to IPv6 functions, how firewalls work, and more. But the engineers and architects also warn, as countless others have before them, that not having meaningful rules in place will result in an "balkanized" internet that will be nothing like the one that drove decades of innovation:

"If ISPs could engage in this sort of blocking, throttling, and interference (which would no doubt occur in the absence of the light-touch, bright-line rules in the Open Internet Order), it would transform the Internet from a permission-less environment (in which anyone can develop a new app or protocol and deploy it confident that the Internet treats all traffic equally) into one in which developers would first need to seek approval from or pay fees to ISPs before deploying their latest groundbreaking technology. Developers and engineers would no longer be able to depend on the core assumption that the Internet will treat all data equally. The sort of rapid innovation the Internet has fueled for the past two decades would come to a sudden and disastrous halt.

Well, not that sudden. It seems likely that if the rules are killed, large ISPs like Comcast will try to remain on their best behavior for a short while to give the impression that axing the rules was a good idea. But with no meaningful regulatory oversight (keep in mind the goal here isn't just killing net neutrality, but nearly all oversight of ISPs), and no meaningful competition, they're simply not going to be able to help themselves. If the ability to act anti-competitively without repercussion is presented on a golden platter, they will take full advantage in their unyielding quest for improved quarterly earnings.

Of course this isn't the first time Ajit Pai and the FCC have been informed that they're wrong on this subject, and are gutting meaningful, popular and important consumer protections solely to the benefit of a handful of massive (and growing) telecom and media conglomerates. They just don't care. And while Pai and pals will still likely ignore this cacophony of opposition and vote to kill the rules anyway, with all of the recent examples of shady behavior at the agency on this subject, you'd like to think that something vaguely resembling accountability will wander in their direction... eventually.

Filed Under: experts, fcc, net neutrality, open internet, technologists

Comcast Admits Broadband Usage Caps Are A Cash Grab, Not An Engineering Necessity

from the whoops-a-daisy dept

For years the broadband industry tried to claim that they were imposing usage caps because of network congestion. In reality they've long lusted after usage caps for two simple reasons: they allow ISPs to charge more money for the same product, and they help cushion traditional TV revenues from the ongoing assault from Internet video. Instead of admitting that, big ISPs have tried to argue that caps are about "fairness," or that they're essential lest the Internet collapse from uncontrolled congestion (remember the debunked Exaflood?).

Over the years, data has shown that caps aren't really an effective way to target network congestion anyway, can hinder innovation, hurt competitors, and usually only wind up confusing consumers, many of whom aren't even sure what a gigabyte is. Eventually, even cable lobbyists had to admit broadband caps weren't really about congestion, even though they still cling to the false narrative that layering steep rate hikes and overage fees on top of already-expensive flat-rate pricing is somehow about "fairness."

Comcast is of course slowly but surely expanding usage caps into its least competitive markets. More recently the company has tried to deny it even has caps, instead insisting these limits are "data thresholds" or "flexible data consumption plans." But when asked last week why Comcast's caps in these markets remain so low in proportion to rising Comcast speeds (and prices), Comcast engineer and vice president of Internet services Jason Livingood candidly admitted on Twitter that the decision to impose caps was a business one, not one dictated by network engineering:Jason's not the first engineer to admit that caps aren't an engineering issue and therefore don't have anything to do with congestion. In fact if you followed the broadband industry's bunk Exaflood claims over the last decade, you probably noticed that ISP lobbyists say one thing (largely to scare legislators or the press into supporting bad policy), while actual engineers say something starkly different.

Repeatedly we've been told by ISP lobbyists and lawyers that if ISPs don't get "X" (no net neutrality rules, deregulation, more subsidies, the right to impose arbitrary new tolls, whatever), the Internet will choke on itself and grind to a halt. In contrast, the actual people building and maintaining these networks have stated time and time again that nearly all congestion issues can be resolved with modest upgrades and intelligent engineering. The congestion bogeyman is a useful idiot, but he's constructed largely of bullshit and brainless ballast.

Livingood will likely receive a scolding for wandering off script. Comcast, unsurprisingly, doesn't much want to talk about the comment further:

"We've asked Comcast officials if there are any technology benefits from imposing the caps or technology reasons for the specific limits chosen but haven't heard back yet. Livingood's statement probably won't come as any surprise to critics of data caps who argue that the limits raise prices and prevent people from making full use of the Internet without actually preventing congestion."

That's worth remembering the next time Comcast tries to insist that its attempt to charge more for the same service is based on engineering necessity. The problem? Our shiny new net neutrality rules don't really cover or restrict usage caps, even in instances when they're clearly being used to simply take advantage of less competitive markets. While Tom Wheeler did give Verizon a wrist slap last year for using the congestion bogeyman and throttling to simply make an extra buck, the FCC has generally been quiet on the implementation (and abuse) of usage caps specifically and high broadband prices in general.

There are some indications that the FCC is watching usage caps carefully, and says it will tackle complaints about them on a "case by case basis." But what that means from an agency that has traditionally treated caps as "creative" pricing isn't clear. It's another example of how our net neutrality rules were good, but serious competition in the U.S. broadband sector would have been better.

Filed Under: broadband, business models, data caps, jason livingood, technologists
Companies: comcast

Technologists To NSA Review Group: Don't Forget About The Interests Of Non-US Persons

from the because-that-matters-too dept

We've been arguing about why the tech industry should be furious and a hell of a lot more vocal about the NSA's spying. One of the big issues is that it's leading to tremendous trust issues with anyone using US-based internet services. In an age where so many internet companies are looking at a global audience, these revelations put them at a significant disadvantage. And, unfortunately, in most of the discussions about all of this spying, the focus has been mainly on whether or not the actions by the NSA have been targeted at US persons. This is important -- because the nature of FISA is that it's supposed to limit NSA activities on US persons -- and there's basically no limit towards what it can do when it comes to non-US persons. That's the nature of the law (and the fact that non-US persons aren't actually under the jurisdiction of the US Constitution in the first place). But that's the legal side of things, not the practical realities. We shouldn't just assume that the issue of spying on non-US persons can be ignored as "perfectly legal." For companies, it can be a complete disaster if non-US persons won't use their services.

Thus, it's good to see that when a group of prominent US technologists, academics and activists sent a letter to the NSA Review Group, that (beyond some other key points) includes a discussion of how the impact on non-US persons should not be ignored:

Part of the Review Group's charge is to evaluate the extent to which the NSA surveillance programs respect "our commitment to privacy and civil liberties." In an increasingly global information environment, these commitments undoubtedly extend to non-U.S. persons. The United Nation's Human Rights Council has resolved that, "the same rights that people have offline must also be protected online." If U.S. providers of services must ignore the rights of non-U.S. persons due to domestic surveillance obligations, the free flow of information that Internet activities depend upon will stagnate. On the contrary, if jurisdictions accept -- as the United States does at the UN -- that all users have some rights to privacy regardless of a user's location, this sets a necessary condition for people of the world to feel comfortable engaging in cross-border Internet activities, upon which the promise of a global connected society rests.

While I doubt any review, or even any legislative attempt to roll back the NSA's efforts will address this, it's going to become an increasingly important issue. At the very least, it seems like the tech industry should be addressing this head on, rather than letting the NSA and the intelligence community set the frame for the debate.

Filed Under: non-us persons, nsa, nsa review group, nsa surveillance, technologists

When All You Have Is A Patent Hammer, Every Software Task Looks Like A Nail

from the software-patents dept

If I'm right that, as I argued on Friday, there's a cultural gap between the patent bar and the technology industry on the subject of software patents, an interesting question is how we got them in the first place. After all, it wasn't that long ago that software was widely believed to be unpatentable, and major technology firms were hardly clamoring for patent protection. Peter Mennell, a Berkeley law professor who spoke at last Wednesday's Brookings patent conference had an interesting perspective on how this came about. He argues that the impetus for software patents came from patent attorneys within major software firms who spread the "gospel of patenting" within their companies. Not surprisingly, CEOs tend to delegate patent issues to their patent lawyers, and of course patent lawyers will tend to have more pro-patent views than their bosses. And so despite the fact that few technology executives were enthusiastic about patenting, the patent lawyers who worked for them pushed their firms in that direction. And of course, once some software firms started acquiring significant numbers of patents, it sparked the arms race that we've talked about here at Techdirt.

To be clear, I don't think that firms' patent attorneys were deliberately flouting their bosses' orders or working against their companies' interests. Rather, I think that patent lawyers genuinely believed (and still believe) that software patents would be good for their own firms and the broader software industry. This is similar to a phenomenon I noticed when I was researching eminent domain abuse: even lawyers who made their living defending property owners against abuses of the eminent domain system didn't think it should be illegal to take someone's property for private profit. Rather, they tended to think that the solution was to add additional layers of review to filter out the worst abuses. Obviously there's an element of self-interest here. Scaling back the number of eminent domain cases or software patents means fewer jobs for eminent domain or patent lawyers, respectively. But I think the far more important explanation is that when you have a hammer, everything looks like a nail. When you're an expert on the minutia of a particular body of law, you're naturally going to think that the solution to any given problem is to fine-tune that body of law. They tend not to think about reforms that would involve getting the lawyers out of the picture altogether.

I think the good news (if you can call it that) is that the patent system is getting so dysfunctional that it's starting to generate interest from corporate CEOs, most of whom are not patent attorneys. A Hill staffer, who spoke on the same panel as I, mentioned that he's seen an increasing trickle of tech companies coming to Capitol Hill to lobby for patent reform. As it becomes more obvious that software patents do little to promote innovation and are mostly a wealth transfer from the software industry to the patent bar, I think we'll see more tech industry CEOs paying attention to the patent problem. And most of them will be less committed to software patents than their patent lawyers are.

Filed Under: lawyers, patents, technologists

The Cultural Gulf Between Lawyers And Technologists On Patent Law

from the patent-bar-solipsism dept

On Wednesday I attended the Brookings Institution's conference on "The Limits of Abstract Patents in an Intangible Economy." The conference was organized by software patent skeptics, so that perspective has been well represented. But I was struck by the dramatic differences between the views of lawyers on the one hand (who made up the majority of the panelists and audience members) and the handful of technologists on the other. The first panel focused on the economics of abstract patents, and included a mix of technologists, economist, and lawyers. All of the panelists spoke about the serious problems being caused by patents in the software industry and argued for dramatic restrictions on software and business method patents. The tone of the second panel, which focused on legal issues, was rather different. All of the panelists were lawyers, and although they acknowledged that the patent system had problems, and that these problems are especially serious in the software industry, their focus was on abstruse details of patent law. None of them supported explicit restrictions on software patents, and few seemed to feel any urgency about the need to rein in patenting in the software industry. I think this contrast is reflected in the broader software patent debate—patent attorneys and law professors who write about patent law are overwhelmingly in favor of patents on software, and prefer to argue about how to fine-tune patent law to get fewer "bad" software patents without invalidating the "good" ones. In contrast, a lot of computer programmers simply wish the patent system would leave them alone.

There are a couple of ways you can view this split. On the one hand, it's possible that the economists and technologists on the first panel are naive and don't understand the complexities of patent law. Maybe broad restrictions on patenting of software or other abstract inventions would have unintended consequences in other parts of patent law that only one schooled in the minutia of patent law can understand. On the other hand, the perspectives found on the second panel could be a reflection of the solipsism of the patent bar. Patent attorneys seem to have an unshakable faith that there's no sector of the economy that couldn't be improved by more patenting. I suspect that one reason for these different attitudes has to do with the role the two groups play in the software industry. Patent attorneys only interact with those parts of the software industry that participate in the patent system. When software engineers write useful software without seeking patents on it—a vastly more common occurrence—patent attorneys will, by definition, not be there. Therefore, patent lawyers are inevitably going to over-estimate the importance of patents to the software industry. In contrast, the average programmer deals with the patent system infrequently. For a lot of entrepreneurs, patents are basically a nuisance—they have to get some for defensive purposes, but they're not an important part of their business plans. For employees at larger firms, patents are basically irrelevant to their day-to-day jobs. No programmer starts a programming project by consulting the patent database.

As a consequence, the two communities have radically different views of how well the patent system is working. The lawyers certainly acknowledge that there's a problem, but they seem to find it incomprehensible that there could be a major American industry that's better off without patent protections. Techies understand that patents are not an important part of the software industry, and so they're much more likely to say that their industry would be better off without them.

Filed Under: lawyers, patents, technologists

How Come There Aren't More Technologists On The Board Setting Voting Tech Standards?

from the questions,-questions,-questions dept

Ed Felten raises a rather important question concerning the lack of knowledgeable computer scientists or other voting technology experts on the Election Assistance Commission (EAC) Board of Advisors. As Felten notes, the EAC is in charge of setting voting technology standards, and four slots (out of 39) on the board are specifically allocated for "members representing professionals in the field of science and technology." Already, only 4 out of 39 seats seems rather low, considering how important the technology choices are -- but it's even worse when the people filling those slots aren't actually technologists. Yes, Felten points out that three of the four slots are held by folks who are:

accomplished people who have something to offer on the board. But as far as I can tell they are not "professionals in the field of science and technology," so their appropriate positions on the board would be somewhere in the other thirty-five seats.

So, basically, as it stands, the group in charge of setting voting tech standards appears to have only one technologist on board, and that person, Barbara Simons, was only recently appointed.

Filed Under: e-voting, eac, election assistance commission, technologists, voting