While a class action lawsuit is definitely one way to get Comcast to behave, another perhaps more productive way to do so is to have politicians step in and regulate.
On Tuesday, I discussed the issue of Comcast's anti-BitTorrent "network management" with Rep. Rick Boucher, D-Va., who is a strong supporter of consumer rights and has led the battle to undo the damage caused by the Digital Millennium Copyright Act, or DMCA.
He was named Politician of the Year for 2006 by Library Journal, largely due to his efforts to protect the fair-use doctrine and expand Internet technologies to rural areas.
"Comcast has made a major mistake in attempting to hinder peer-to-peer file sharing as an aspect of its network management," Boucher said. "The inability of customers to (share files) significantly diminishes their ability to utilize the Internet for one of its most important applications, which is user-to-user content." He also noted that "file sharing is already being used for a wide variety of perfectly lawful and appropriate applications."
Net neutrality nightmare ad
(Credit: Rikomatic / Flickr)Discussing the realities of limited resources that the company faces, Boucher said, "Comcast obviously needs to engage in some aspect of network management. The company has limited bandwidth, and there are times when there is more demand for service than the infrastructure can support." However, the congressman stressed that "(the) management needs to occur in a more evenhanded way" and that "(Comcast) should not engage in a blanket disqualification of any category of lawful applications."
Until last month, the opponents of Net neutrality were doing just great. The issue, which had become one of national importance in 2006, had shrunk to a mere footnote in the annals of tech policy history.
CNET News.com's Declan McCullagh wrote about the death of Net neutrality last month, stating that "(the issue) went from being the political equivalent of a first-run Broadway show, with accompanying street protests and high-profile votes in Congress, to a third-rate performance with no budget and slumping attendance."
Luckily for fans of a free Internet, the telecommunications companies are extremely shortsighted. Thanks to a number of their boneheaded moves, Net neutrality has gone from being all but dead to a major news story--all in just a matter of weeks.
Respect BitTorrent
(Credit: Hetemeel.com)The first company to breathe life back into was Verizon Wireless, which decided in late September to block a SMS text message campaign by a pro-choice group.
Within one day (and after having its censorship techniques compared to those of the Chinese government in a New York Times article), Verizon quickly flip-flopped.
While Verizon should be commended for realizing that it needed to do the right thing, and quickly, the damage was already done. Net neutrality was back on the tech policy radar.
In mid-August, user reports began to surface alleging that Comcast was filtering the BitTorrent connections of its broadband cable customers.
While the story got a bit of press in some tech news outlets, it was ignored by the national media, primarily due to the flat-out denials issued by Comcast.
Fast-forward one month. This past Friday, the Associated Press and the Electronic Frontier Foundation both released investigative reports, documenting the fact that Comcast is actively engaged in anti-BitTorrent behavior.
In spite of Comcast's best efforts to yet again spin the story, the truth seems to have come out, and major news outlets have picked it up: Comcast is actively sending out false data onto its network, which impersonates its customers' computers and deceitfully convinces them to terminate BitTorrent connections. Not only does the company have a major PR disaster on its hands, but it has in a matter of days become the poster child for Net neutrality.
Comcast's name is surely to come up in any future discussion of Net neutrality - which has gone from a theoretical "what if companies did this kind of thing" debate to something more akin to "do you want every Internet company to start acting like Comcast?"
In my blog post on the subject this past Tuesday, I explored some of the potential legal risks that Comcast faces. I spoke to the Electronic Frontier Foundation's Fred von Lohmann, who revealed that "(the EFF has) already been contacted by attorneys, who are considering legal action against Comcast."
I asked Boucher what he would do if Comcast stuck to its guns and kept discriminating against BitTorrent. In particular, I asked him if he would propose legislation compelling the company to treat all traffic fairly.
Unfortunately for fans of Net neutrality, the congressman said he was not ready to go down this path and instead stressed market-based methods of fixing the problems. Instead of tinkering with packets, the congressman said that in the short term, Comcast should "simply tier their offerings and engage in a pricing structure that allocates more bandwidth to those who pay more, and less to those who pay less."
However, he said "the long-term answer is to deploy more capacity. That is what municipal broadband and other telecom companies are doing. Ultimately, the cable companies will have to deploy fiber to the house."
Columbia University cyberlaw professor Tim Wu recently pointed to a historical analogy regarding Verizon's SMS fiasco. He told The New York Times that in the 19th century, the telegraph company Western Union engaged in discrimination based on the political views of people who sought to send telegrams.
"One of the eventual reactions was the common-carrier rule," Wu said, which required telegraph and then phone companies to accept communications from all speakers on all topics.
Someone who believes in a market-based solution to this problem is Jim Harper, director of information policy studies at the Cato Institute. In a phone interview on Tuesday, Harper noted that one of the main problems is Comcast's lack of transparency--something that can be seen through the fact that no one yet knows, exactly, what Comcast is doing. He said "Comcast seems to lack the capacity to communicate terribly well. They should fix that."
Harper believes that competition is the key to fixing the problem and that if customers truly care about the issue, they will choose another Internet service provider that is more BitTorrent-friendly. He did, however, note that without transparency, "consumers cannot make smart choices."
He also rejected calls for Net neutrality regulation, stating that he believes that the problem can be fixed by promoting competition. While acknowledging that the state of the market is far from competitive for many rural consumers, he noted that customers in bigger markets often have the choice between multiple phone, cable and wireless companies.
Harper said that instead of "dividing the current pie through regulation, it is far better to grow the pie" by encouraging new companies to offer service. One example of this, he said, was allocations of additional spectrum to broadband, such as the upcoming 700MHz auction.
Finally, Harper was somewhat skeptical of the importance of this issue to most consumers. He noted that Comcast is not blocking BitTorrent downloads but rather only the sharing of files--something that is not viable to most users. "If customers don't care enough to vote with their feet" he asked, "then how important is it, anyway?"
The blogosphere is abuzz over an Associated Press investigative article this past Friday on the subject of Comcast's BitTorrent filtering. Briefly, there were a number of articles in early September which alleged that Comcast was using some fairly sneaky techniques to throttle BitTorrent traffic on its network. Comcast, of course, denied any such behavior. It took a month and a half, but both a mainstream media news organization as well as the Electronic Frontier Foundation have tested and confirmed the previously reported claims. It turns out that Comcast is not only throttling BitTorrent, but Gnutella and, strangely, Lotus Notes are also suffering.
If it ain't the truth....
(Credit: technochick / flickr)Comcast's PR people gave me the following statement on Monday: "Comcast does not block access to any Web sites or online applications, including peer-to-peer services like BitTorrent...We have a responsibility to provide all of our customers with a good Internet experience and we use the latest technologies to manage our network so that they can continue to enjoy these applications." I was also able to interview a Comcast Internet executive who would only speak on background. He bobbed and weaved, sticking to his talking points, yet a few things were clear: he would not deny that the company was sending out TCP RST packets, but stated that if it were being done, it was at a "low level" where average users would not see it.
A Comcast engineer who spoke to the Tech Liberation Front's Tim Lee confirmed this, stating that "most users wouldn't even be able to detect the traffic-shaping activities they use without special equipment and training." On the subject of why the filtering is done networkwide and not just to individual bandwidth hogs: "Comcast (doesn't) throttle on a user-by-user basis rather than a protocol-by-protocol basis, (as the company is) concerned with the privacy implications of that approach." Thats right folks, Comcast will sell network wiretaps to the feds for $1,000 a pop, but won't calculate a user's total bandwidth per month for "privacy reasons."
When your ISP receives a spam e-mail, and deletes it without delivering the message to your in-box, it is blocking access to your in-box. (This is a good thing.) When you install a firewall on your home computer and someone else tries to connect to you from another network, your firewall software "blocks access" to that other party. The packets attempting to initiate a connection to your machine will either be silently dropped onto the floor, or in some cases, a rejection message will be sent back to the session initiator telling them that their connection attempt was refused.
Comcast LolCat
(Credit: Comcast and LolCat Buildr)If Comcast deployed networkwide firewall rules that would drop any BitTorrent packets that came in and out of its network, Comcast would be "blocking access." However, it is not doing this. Primarily, because if it did so, the BitTorrent downloads of its customers would fail, and thousands of users would complain. Instead, Comcast is attempting to only target the sharing or uploading portions of BitTorrent, which are not nearly so noticeable for end users. Comcast will still see a significant drop in network traffic by targeting uploads, but is far less likely to suffer the wrath of its users.
So what is Comcast doing? It is letting BitTorrent traffic flow across its network, and thus is not technically "blocking" anything. Instead, it is forging TCP reset packets that are misleadingingly labeled as being sent by one of the two ends of the BitTorrent connection. That is, Comcast is masquerading as its customers, and sending out data with false sender information. When the BitTorrent clients receive the false reset packets, they themselves terminate the connection, as they think the other host has told them to go away. Thus, through sneaky techniques and network-level false statements, Comcast is able to trick users' software into terminating their own transfers.
Interestingly enough, were Comcast applying this same technique to e-mail, and falsifying the header information of e-mail messages, it would soon find itself violating the Can-Spam Act. That law states that "Whoever...materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages...shall be punished...with a fine...or imprisonment for not more than one year."
As for the idea that Comcast is using the "latest technologies" to manage its network--hogwash. The concept of forging TCP reset packets is at least 10 years old, if not older. Purdue professor Gene Spafford and a number of his graduate students developed a "synkill" system to defeat SYN flood attacks that used the very same technique, back in 1996.
What about the argument that Comcast has the right to "manage (its) network so that (all customers) can continue to enjoy (permitted) applications?" The tactics that Comcast is using are 1. Probably a violation of its own terms of service, and 2. are being applied blindly across the whole network, instead of targeting those "heavy users" who use a disproportionate amount of the company's bandwidth.
Comcast's own "terms of use" state that Comcast reserves "the right to refuse to upload, post, publish, transmit or store any information or materials, in whole or in part, that, in (its) sole discretion, is unacceptable, undesirable or in violation of (the) agreement." Thus, if Comcast wished to deploy networkwide firewall rules blocking all BitTorrent traffic (that is, such packets would be either dropped on the floor or rejected by the network's routers), Comcast would be perfectly within its rights as outlined in the agreement. Comcast would probably lose a large number of customers, but it would at least be acting legally and following its own published rules. However, Comcast is not doing that. Nowhere in its terms of service has the company stated that it reserves the right to impersonate its customers, and to send false and misleading data out onto the network originating from or addressed to its customers.
In addition to the BitTorrent filtering technique being discussed, Comcast uses other methods to keep the amount of data flowing over its network to a minimum. Customers who use more than their "fair share" of bandwidth will eventually be terminated. How much is too much? Comcast won't tell you.
While this latter method of network management is not so popular with the Slashdot crowd, it at least makes some sense, since it is aimed at those users who are using the most of Comcast's seemingly scarce resources. Comcast's BitTorrent filtering, on the other hand, is being blindly applied to the entire network. Users who download 10 gigabytes of data per day, and little old grandmothers who wish to share a 4.5-megabyte copy of the King James Bible (as the AP did in their test) will both equally be filtered. This is not a technique aimed at abusive overuse by a handful of users, but is an all-out war against particular networking protocols.
I discussed this issue with Fred von Lohmann, a lawyer with the Electronic Frontier Foundation. Von Lohmann stated that "based on (our) own testing, as well as what has been reported, it seems clear that Comcast's techniques are bad for its customers and bad for innovation generally. The fact that Comcast's efforts are reportedly interfering with BitTorrent, Gnutella and Lotus Notes communications makes it clear that they are not narrowly targeted at particular users or protocols."
Regarding the effectiveness of Comcast's techniques, von Lohmann said that: "It's as though they are throwing a spanner in the works of the Internet, hoping that this will somehow reduce bandwidth usage overall.
As I mentioned in an article last month, Comcast's tactics may very well be violating the law. Many states make it illegal for an individual to impersonate another individual. New York, a state notorious for its aggressive pro-consumer office of the Attorney General, makes it a crime for someone to "(impersonate) another and (do) an act in such assumed character with intent to obtain a benefit or to injure or defraud another." (See: NY Sec. 190.25: Criminal impersonation in the second degree). I do not believe that it would be too difficult to prove that Comcast obtains a benefit by impersonating others to eliminate or reduce BitTorrent traffic. Less torrent data flowing over its network will lead to an overall reduction in its bandwidth bill, and thus a huge cost savings.
With regard to Comcast's legal liability, von Lohmann said that he could not comment as he had not yet had a chance to review the New York anti criminal impersonation laws. He did, however, state that "(The EFF has) already been contacted by attorneys who are considering legal action against Comcast." In the meantime, the EFF will "continue to perform tests in hopes of better understanding how this works and how it might effect Comcast subscribers and other Internet users."
While the EFF is holding back for now, it seems clear that other lawyers are circling in the water. They can smell blood. Not only is Comcast actively impersonating its customers on the Internet, but it has continued to deny it for the past two months. Should the court's approve a class action lawsuit, Comcast could be looking at a world of pain--and rightly so.
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