ACLU incompetence and misinformation on net neutrality

I received an email from the ACLU yesterday, informing me that they've jumped in on the net neutrality debate. Unfortunately, they badly misrepresent the facts:

FREE THE NET: WHY YOU SHOULD CARE ABOUT NET NEUTRALITY

The keys to the Internet have always been safely in public hands - until last year, when the FCC suddenly repealed longstanding Internet principles of "neutrality" and non-discrimination.

The ACLU is going to make the erroneous claim that I've debunked repeatedly on my blog (see the Net Neutrality Index)--that the common carriage requirements on telcos constitute "net neutrality." They will ignore the fact that cable companies--the main providers of consumer broadband Internet access in the U.S.--have never been common carriers and have never been bound by these requirements.

With the blessing of the Supreme Court, a handful of profit-driven telecoms and cable companies now could effectively shut down the 21st Century marketplace of ideas by screening Internet e-mail traffic, blocking what they deem to be undesirable content, or pricing users out of the marketplace.

The ACLU is going to argue that we need to create a new bureaucratic regulatory apparatus, giving sweeping new powers to the FCC to interfere with freedom of Internet providers to enter into voluntary contracts with each other and manage their own networks, and specifically prohibiting differential pricing on tiered levels of service and the ability for providers to enter into arrangements with content providers to subsidize consumer bandwidth.

Historically, Net Neutrality protections filled the free speech gap. Since those protections were removed last year, nothing prevents network providers from discriminating against Internet users and application and service providers in terms of content, quality of access, and choice of equipment.

This is doubly false--the common carriage requirements applied only to the last-mile consumer network connections, not to the ability of ISPs to filter; and it is false that "nothing prevents" ISPs from taking actions which would cause them to lose customers.

If you're like many people using the Internet, you don't think about whether your Internet Service Provider is intentionally slowing down or speeding up your access to Yahoo! versus Google. Without Net Neutrality, your ISP could do just that.

Imagine if your phone company was allowed to own restaurants and then provided good service and clear signals to customers who called Dominos and static and frequent busy signals for those calling Pizza Hut.

It sounds outrageous, but it would be entirely possible if the telephone system wasn't regulated under the "common carrier" framework. The telecoms and cable companies that provide Internet network services, including AT&T, BellSouth, Comcast, Qwest, Sprint, Time-Warner/AOL, and Verizon, have spent over $100 million lobbying Congress and the FCC to eliminate established Net Neutrality protections.

Remember, cable companies have never been common carriers, yet this hasn't been a problem. Why create new regulations and give more power to a government agency that has a history of not only working on behalf of the big incumbents (rather than promoting competition, which is what is needed) but of engaging in actions designed to cause discrimination against certain forms of content through censorship? It makes no sense.

The assault on Internet freedom will only get worse. The FCC imposed Net Neutrality protections in merger agreements for certain network providers such as SBC/AT&T and Verizon/MCI, but those protections expire in 2007. And in July 2006, the FCC declined to include any Net Neutrality protections in Comcast and Time-Warner's acquisition of Adelphia Cable. The pattern of the FCC opposing Net Neutrality is expected to continue, as network providers continue to consolidate into an even smaller pool of Internet gatekeepers.

Without the vigorous non-discrimination principles in place before 2005, a few corporate conglomerates will control everything that you can say or do on the Internet. Net Neutrality is needed, and it is needed now.

The above argument is a mish-mash of fear-mongering about things that haven't been an issue, misrepresentation of what regulations have been in place, wild unsubstantiated claims ("a few corporate conglomerates will control everything that you can say or do on the Internet"?), and a failure to look at the actual substantive issues in the network neutrality debate.

Their website contains further misinformation:

Massive innovation on the Internet since its creation is in part the result of pre-2005 Net Neutrality protections. Starting nearly forty years ago, the Federal Communications Commission (FCC) concluded that under Title II of the Communications Act, telephone companies and network owners were prohibited from interfering with or discriminating against "telecommunications services" offering computer network access. The availability of common carrier telephone networks to independent equipment manufacturers and Internet Service Providers (ISPs) led to the Internet's birth. Entrepreneurs freely developed pioneering services and products resulting in a technological revolution driving our Nation's economic growth in the last decade.

Again, Title II has never applied to cable companies (or to ISPs that aren't telcos).

All of those protections were suddenly lost last year after the Supreme Court's decision in NCTA v. Brand X. Since 2002, the FCC attempted to reverse decades of applying Title II's nondiscrimination principles to net providers by reclassifying cable modem services as unregulated "information services."

ISPs and cable companies have never been Title II common carriers.

Federal courts initially rejected the FCC's efforts to strip long-standing Net Neutrality protections. In mid-2005, the Supreme Court abruptly reversed course in Brand X by concluding that the FCC had that discretion, notwithstanding well-established consumer protections.

Following that ruling, network owners began taking steps to stifle innovation and freedom on the Internet.

No examples are provided. Actual cases of discrimination are very few and far between, and have been quickly resolved.

They have stated their intent to establish tollbooths on the Information Superhighway by restricting fast lanes to those willing and able to pay high premiums.

It has always been the case that you have to pay more for more bandwidth and to put your content closer to your users, and that will not change with network neutrality regulations. This description fails to present the point of tiered services, which are necessary to deploy new kinds of services on the network (such as those dependent on near-real-time packet delivery) without allowing them to be disrupted by services which don't have such dependencies. By prohibiting tiered services, you prohibit the development and innovation that they can bring, and will doom us to VoIP telephony that is inferior to old-fashioned telephone service.

Some network owners, such as Time Warner's AOL and BellSouth, have already blocked user content.

The AOL case was an inadvertent blocking of email from a particular domain that was quickly corrected; I don't know what BellSouth instance is referred to. Probably most, if not all ISPs and content providers have blocked access to some user content at some point, due to that content being illegal (e.g., copyright infringement, child porn).

Internet discrimination will only increase after the 2007 expiration of Net Neutrality restrictions in merger agreements for other network owners such as SBC/AT&T and Verizon/MCI.

Why? Any provider that blocks content that its customers want to access puts itself at a competitive disadvantage.

S. 2917, the Snowe-Dorgan "Internet Freedom Preservation Act," restores longstanding Net Neutrality protections missing from S. 2686.

In its current form, S. 2686, the Communications, Consumer's Choice, and Broadband Deployment Act of 2006, permits Net discrimination to continue unabated. The bill provides no protection for Internet users and entrepreneurs. Instead, it merely includes a toothless requirement that the FCC study the Internet market for five years and file annual reports to Congress on the activities of network owners.

This is not true--it contains the FCC "four freedoms" including nondiscrimination, and provides for fines for providers who discriminate. What it doesn't do that the Snowe-Dorgan bill does is prohibit tiered classes of service.

In sharp contrast, S. 2917, the Internet Freedom Preservation Act offered by Senators Snowe and Dorgan, restores Network Neutrality protections in place before June 2005.

This is inaccurate--it does not reverse Brand X (which would amount to a new requirement--that has never previously been in effect--for cable companies to allow any ISP to sell Internet service through their networks). It creates new restrictions on broadband Internet that have never previously existed, affecting non-telco ISPs as well as cable providers.

It requires that any content, application, or service offered through the Internet be provided on a basis that is "reasonable and non-discriminatory" and equivalent to the access, speed, quality of service, and bandwidth of services offered by network owners. It further prohibits network providers from blocking or degrading lawful Internet content. Finally, it leaves the choice for attaching legal devices to networks squarely in the hands of consumers, where it rightfully belongs.

If it only prohibited providers from blocking or degrading lawful content, I'd have no problem with it--but it goes far beyond that.

It is disappointing to see the ACLU get this issue so wrong.