Transcript - Personal.psu.edu

Internet Packet Switching and Its Impact on the
Network Neutrality Debate and the Balance of Power
Between IP Creators and Consumers
A Presentation at the
2007 IP Scholars Conference
DePaul University, School of Law
Chicago, Illinois
August 9-10, 2007
Rob Frieden, Pioneers Chair and Professor of Telecommunications
Penn State University
email: [email protected]; web site: http://www.personal.psu.edu/faculty/r/m/rmf5
blog site: http://telefrieden.blogspot.com/
Main Points of the Paper

Improvements in traffic management technology make it
efficient and economical for Internet Service Providers
(“ISPs”) to operate non-neutral networks offering “better than
best efforts” traffic routing and variable quality of service.

ISPs oppose any limitation on their options for tiering and
diversifying services that can accrue financial, operational and
consumer benefits, but also achieve anticompetitive goals.

Net neutrality advocates believe that the Internet has
contributed to national productivity, economic opportunity and
innovation in light of “best efforts,” end-to-end connectivity.
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Main Points of the Paper

Traffic management using “packet sniffing” also provides ISPs
with the likely ability to respond to Digital Right Management
instructions from content providers by blocking copyright
infringing traffic rather than delivering it with copy protection
intact.

The Network Neutrality debate should include consideration
whether active traffic management eliminates the safe harbor
exemption from secondary liability for copyright infringement
provided by §512 of the Digital Millennium Copyright Act.

When ISPs elect to operate non-neutral networks through
cheap and effective traffic management technology, they
challenge the presumption that ISPs can only operate as
neutral conduits.
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Packet Sniffing Explained

ISPs use packet switching to subdivide traffic for routing over any available
network.

Each packet contains a header that provides routers with needed information about
the source and destination of traffic using addressing and management protocols
such as TCP/IP. Payloads in packets contain content.

Improvements in router technology make it possible for ISPs to secure more
information from headers for purposes of tiering and prioritizing traffic based on
the nature of the content, e.g., streaming content needing instantaneous (“real
time”) delivery and high quality of service versus store and forward content such as
email not requiring immediate processing particularly during network congestion.

Routers also can interrogate (“sniff”) headers for instructions on Digital Rights
Management, possibly including a go/no go determination whether the intended
recipient has the requisite “rights” to receive a specific stream of packets.
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TCP Packet Header
4500
4b Ver
XXXX
XXXX
4b
H
dL
n
T
o
S
XXXX
Destination IP
Address
XXXX
XXXX
X
X
X
X
Length in
Bytes
XX
XX
So
urc
e
Por
t
XX
XX
XXXX
IP
ID
0
XXXX
XXXX
DF
T
T
L
XXXX
Destination Port
M 13bit
F Fra
g.
Off
set
XXXX
Protocol
XXXX
Sequence Number
XXXX
source: Michael McDonnell and Winterstorm Solutions, Inc.
available at: http://winterstorm.ca/download/packets.pdf.
XXXX
XXXX
Header
Checksum
XXXX
Source IP
Address
XXXX
Ack Number
An Easier Analogy
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How does this threat to Internet freedom affect you?
Small businesses—The little guy will be left in the "slow lane" with inferior Internet service, unable to compete.
Innovators with the next big idea—Startups and entrepreneurs will be muscled out of the marketplace by big corporations that pay Internet providers for the top
spots on the Web.
Bloggers—Costs will skyrocket to post and share video and audio clips—silencing citizen journalists and putting more power in the hands of a few corporate-owned
media outlets.
Google users—Another search engine could pay dominant Internet providers like AT&T to guarantee another search engine opens faster than Google on your
computer.
Ipod listeners—A company like Comcast could slow access to iTunes, steering you to a higher-priced music service it owns.
Online shoppers—Companies could pay Internet providers to guarantee their online sales process faster than competitors with lower prices—distorting your choices as
a consumer.
Telecommuters—When Internet companies like AT&T favor their own services, you won't be able to choose more affordable providers for online video,
teleconferencing, Internet phone calls, and software that connects your home computer to your office.
Parents and retirees—Your choices as a consumer could be controlled by your Internet provider, steering you to their preferred services for online banking, health
care information, sending photos, planning vacations, etc.
Political groups—Political organizing could be slowed by a handful of dominant Internet providers who ask advocacy groups to pay "protection money" for their Web
sites and online features to work correctly.
Nonprofits—A charity's website could open at snail-like speeds, and online contributions could grind to a halt if nonprofits don't pay Internet providers for access to
"the fast lane."
What They've Got Planned
The threat to an open internet isn't just speculation -- we've seen what happens when the Internet's gatekeepers get too much control. These companies, even, have
said as much about their plans to discriminate online.
Ed Whitacre of AT&T told BusinessWeek in late 2005:
Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So
there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using. Why should they be allowed to use my pipes?
It's Already Happening
Such corporate control of the Web would reduce your choices and stifle the spread of innovative and independent ideas that we've come to expect online. It would
throw the digital revolution into reverse. Internet gatekeepers are already discriminating against Web sites and services they don't like:




In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.
In 2005, Canada's telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a
contentious labor dispute.
Shaw, a major Canadian cable, internet, and telephone service company, intentionally downgrades the "quality and reliability" of competing Internet-phone
services that their customers might choose -- driving customers to their own phone services not through better services, but by rigging the marketplace.
In April, Time Warner's AOL blocked all emails that mentioned www.dearaol.com -- an advocacy campaign opposing the company's pay-to-send e-mail scheme.
This is just the beginning. Cable and telco giants want to eliminate the Internet's open road in favor of a tollway that protects their status quo while stifling
new ideas and innovation. If they get their way, they'll shut down the free flow of information and dictate how you use the Internet.
How Might ISPs Lose the §512 Safe
Harbor Exemption?



§512 of the DMCA balances ISPs’ obligations not to induce
or contribute to copyright infringement with the national
interest in promoting Internet commerce.
The DMCA establishes 4 safe harbor exemptions when
“online service providers” operate as a neutral, transitory
conduit for content, temporarily cache content, store content at
the direction of a user and provide search tools for linking to
content created by others.
ISPs lose an exemption by not responding to requests to take
down infringing content and arguably when they know about
infringement and have the right and ability to control such
conduct.
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Recalculating the Cost of Deep
Packet Inspection

ISPs characterize network neutrality as creating disincentives to invest in next
generation infrastructure and the (re)imposition of “confiscatory” common carrier
regulation.

Ironically ISPs have financially benefited from the presumption that they operate as
neutral conduits.

When an ISP decides to use packet sniffing to differentiate service it cannot readily
ignore the DRM instructions also contained in the header.

Arguably ISPs can act on DRM flags using ISP routers as opposed to sending the
traffic onward to its final destination where end user equipment might process the
flag if lawfully required to do so (see ALA v. FCC, 406 F.3d 689 (D.C. Cir. 2005).

The potential loss of the DMCA Sec. 512 safe harbor may change the cost/benefit
analysis in non-neutral network operation.
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Conclusions

ISPs do not have an affirmative duty to monitor their traffic
streams to detect IP infringement.

However technological innovations in routers and packet
inspection create opportunities for ISPs to generate more
revenue by operating non-neutral networks.

When making the affirmative decision to use packet sniffing
for service tiering, ISPs no longer remain passive conduits.
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Conclusions (cont.)

Having decided not operate as non-neutral conduits, ISPs cannot readily
ignore DRM formatting standards that could insert header information
about whether ISPs should continue to route traffic in light of possible
piracy.

Deep packet inspection may provide some degree of contemporaneous
DRM that ISPs may not ignore if they want to retain safe harbor exemption
from secondary liability.

If ISPs comply with DRM instructions creating a go/no go decision
regarding traffic routing, software and hardware will have preempted end
users from accessing content on fair use grounds.
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