Net neutrality may not resolve Comcast vs. BitTorrent

By Anne Broache

Story last modified Fri Nov 30 06:04:23 PST 2007

Comcast's recent efforts to throttle file transfers that use the BitTorrent protocol have led to a renewed call for Congress to enact stiff Net neutrality laws.

Pro-regulatory groups including Public Knowledge have circulated press releases [1] saying the episode demonstrates the "need for Net neutrality legislation." A Comcast-related post on DailyKos was titled [2] "Why we need Net neutrality." Comcast, BitTorrent, and the phrase "need Net neutrality" appear in roughly 10,000 Web pages indexed by Google.

But even some supporters of new laws--which would enact antidiscrimination regulations aimed at broadband providers--are now reluctantly conceding that the proposals that have been circulating in Congress for more than a year may not do much to stop Comcast. (The company, a cable operator and broadband provider, has been sabotaging some peer-to-peer file
transfers, which dramatically slows them down, although the file tends to be delivered eventually.)

Carole Handler [3], a partner at the law firm Foley & Lardner in Los Angeles who has written about Net neutrality and is now in favor of such regulations, says "the language is such that there is definitely some wiggle room in both bills." Handler was referring to bills that have been considered, but not approved, by both the Senate and the House of Representatives.

Harold Feld, senior vice president for the Media Access Project, which lobbies for Net neutrality laws, is also skeptical about whether Rep. Ed Markey's legislation [4] would do much. If Comcast announced, "'We are absolutely going to prohibit peer-to-peer on our network or even manage our network so when we reach some unspecified capacity restraint, we're going to start messing with everybody's BitTorrent uploads, but it'll be totally random...' that is arguably permissible under the Markey bill," Feld said.

One reason for this is the wording of the language that the House of Representatives considered. Lawyers think of it as the network management exception: it allows a broadband provider to implement "reasonable and nondiscriminatory measures" in order to manage its network, as long as the company doesn't discriminate "between content, applications, or services offered by the provider and unaffiliated providers."

According to Comcast, reasonable network management is all it's doing. "Comcast does not, has not, and will not block any Web sites or online applications, including peer-to-peer services, and no one has demonstrated otherwise," spokeswoman Sena Fitzmaurice told CNET News.com. "We engage in reasonable network management to provide all of our customers with a good Internet experience, and we do so consistently with FCC policy."

Fitzmaurice was referring to the Federal Communications Commission's 2005 broadband policy statement, which describes expectations that broadband providers will allow their users to view sites, run applications, and connect devices to the network as they wish. Crucially, it also contains an exception for "reasonable network management."

To make matters more complicated, most of the gray areas can be found in the earlier Markey legislation. The Senate counterpart, called the Internet Freedom Preservation Act [5] and reintroduced in January by Sens. Byron Dorgan (D-N.D.) and Olympia Snowe (R-Maine), is more specific. It doesn't contain broad immunity for network management, a legal shield that broadband operators argue is necessary.

It's not clear whether that potential murkiness will be resolved in a new version of the legislation, which Markey is expected to introduce during the next few weeks. An aide, who declined to be identified since the bill isn't yet final, told CNET News.com that the language--including the exception for network management--will probably not be significantly different.

When asked whether Comcast's conduct toward BitTorrent would be prohibited under the original bill, the aide said the clearest answer is "maybe." In any case, the bill's authors want to leave it up to an "expert agency," presumably the FCC, to decide whether a company's conduct in a particular situation was both "reasonable" and "nondiscriminatory," the aide said.

Until then, whether Comcast would be reined in by the two existing proposals remains, literally, an academic question. University of Pennsylvania Law School Professor Christopher Woo [6] is one of the most vocal academic critics of extensive new Net neutrality regulations, which would typically be enforced by the FCC. Woo says that Comcast's conduct is "in a gray area," and it's hard to say exactly how either existing proposal would treat it. A "natural reading" of both bills, he added, is that Comcast's network management techniques would not pass muster because they're "discriminating on the basis of the application"--in this case, BitTorrent.

Another academic is more emphatic. Columbia Law School Professor Tim Wu [7], a proponent of Net neutrality regulations, said it's clear that neither of the proposals would allow the sort of activity Comcast is engaged in. "What Comcast is doing is 'application discrimination'--they are choosing one application and treating it worse than others," he said. "Nothing in any of the Net neutrality bills allows this."

CNET News.com's Declan McCullagh contributed to this report