Review of Telecommunications Policy in Transition

Image courtesy of the MIT Press

This first: the edited collection is a decade old. Given the rate that communications technologies and information policies change, this means that several of the articles are…outmoded. Don’t turn here for the latest, greatest, and most powerful analyses of contemporary communications policy. A book published in 2001 is good for anchoring subsequent reading into telecom policy, but less helpful for guiding present day policy analyses.

Having said that: there are some genuine gems in this book, including one of the most forward thinking essays around network neutrality of the past decade by Blumenthal and Clark. Before getting to their piece, I want to touch on O’Donnell’s contribution, “Broadband Architectures, ISP Business Plans, and Open Access”. He reviews architectures and ISP service portfolios to demonstrate that open access is both technically and economically feasible, though acknowledges that implementation is not a trivial task. In the chapter he argues that the FCC should encourage deployment of open access ready networks to reduce the costs of future implementation; I think it’s pretty safe to say that that ship sailed by and open connection is (largely) a dead issue in the US today. That said, he has an excellent overview of the differences between ADSL and Cable networks, and identifies the pain points of interconnection in each architecture.

Generally, O’Donnell sees interconnection as less of a hardware problem and more of a network management issue. In discussing the need and value of open access, O’Donnell does a good job at noting the dangers of throttling (at a time well ahead of ISP’s contemporary throttling regimes), writing

differential caching and routing need not be blatant to be effective in steering customers to preferred content. The subtle manipulation of the technical performance of the network can condition users unconsciously to avoid certain “slower” web sites. A few extra milliseconds’ delay strategically inserted here and there, for example, can effectively shepard users from one web site to another (p53).

Arguably not only websites are affected by such ‘steering’ efforts, but protocols and application-types as well; his position on steering users is well reflected in contemporary network neutrality and Internet Governance texts, such as van Schewick’s Internet Architecture and Innovation. In the face of such discriminatory actions by ISPs, what is the solution? For O’Donnell, the solution is to have an objective monitoring regime that both monitors content discrimination and alerts customers of subpar network performance. In today’s landscape we can find these suggestions put into practice (e.g. tools available through M-Lab and the FCC’s recent call for applications to ID net neutrality violations), though it is questionable how widespread and effective they really are/will be.

If you need a justification to buy this book (and, given that it’s a decade old policy book, you likely do) it’s found in Blumenthal and Clark’s “Rethinking the Design of the Internet: The End-to-End Arguments Vs. The Brave New World.” The authors carefully examine how the End-to-End principle is violated by ISPs at the time of the chapter’s writing and the potential implications of such violations. This chapter reads like a well rationalized argument for legally guaranteed network neutrality. The authors worry that ISPs will weaken their commitments to invest in infrastructure for general Internet once they deploy their own content delivery networks. This is, obviously, a key issue in today’s discussions of vertical integration, throttling of over-the-top content streams, and provisioning bandwidth to access third-party content.

When third parties actively inspect content in transit the E2E argument is logically invalid – E2E precludes such interference by the network core. As a result, faced with this situation, the authors suggest that having a debate about the situation requires that either E2E be abandoned, that the third party involvement be rejected in its entirety because it undermines E2E, or that a next generation principle be developed that retains as much of E2E as possible. We regularly see different bodies continuing to weigh this triumvirate of choices today, and Zittrain’s ‘generativity principle’ (a rule that asks that any modifications to the Internet’s design or to the behaviour of ISPs be made when they will do the least harm to generative possibilities, discussed in The Future of the Internet–And How to Stop It) clearly fits within the third option given by Blumenthal and Clark. Rather than turning to derivative versions of this tripartite division, come to this essay instead.

Further, the authors worry that whereas in the 80s and early 90s the core of the network interfered with applications for their benefit, this is less the case today. As a result, injecting middleware ‘intelligence’ is potentially problematic, and even hostile, to users’ data traffic. While much of the chapter reads like a love letter to network neutrality advocates, it comes with some words of caution. First: there is a warning that the law is just not prepared to ‘catch up’ to the technical speed of the ‘net. As a result, legal/regulatory responses will be delayed and code will race ahead. To ‘catch up’ the legal system itself needs to be reformatted in some sense. It’s unclear whether this modification to the legal system has happened, and perhaps even less clear whether the courts and regulators can competently keep pace with telecom developments. Code, it seems, still races ahead of law though it is admittedly ‘pulled back’ by regulatory structures and legal judgements from time to time. The threat of regulation and legal action may actually be more powerful than actual deployments of regulatory capacity and legal might. Second: while E2E empowers connectivity, it should also impose a responsibility. Where the unrestrained actions of ends cause harm to the network and/or its users, the individual(s) responsible for those ends ought to be held accountable. This is a contentious point, one that resonates with tech heads and less with consumers who treat the ‘net as another consumer good.

The final essay that I would highly recommend of the collection (though most are truly excellent) is Greenstein’s “Copyright in the Age of Distributed Applications.” Greenstein recognizes that many of the vicarious copyright infringement findings in the US are based on case law where absentee landlords had a physical capacity to oversee the infringing action(s). Such is not always the case with distributed (P2P) applications. Where the capacity to supervise is infeasible or ineffective in stifling infringing acts it seems unreasonable to apply old case law. A new framework is required, one that would emerge if the following questions guided vicarious infringement judgements:

  1. What is the nature of each potential non-infringing use?
  2. What is the likelihood that any consumer would acquire and use the product for such non-infringing uses?
  3. What is the role of the technology in facilitating the infringing uses?
  4. What is the role of the technology in facilitating non-infringing-uses?
  5. What is the likelihood that, if the technology is or is not deemed to be infringing, non-infringing uses will proliferate.

One can imagine that, were this set of criteria adopted, case law around P2P in the United States and WIPO signatory nations might be very different…

In addition to these three papers, Rob Frieden’s discussion of peering relationships is truly excellent, and the early discussion of wireline vs wireless deployment in the US and Japan by Moto Murase gives a good (and early) comparison of those nations’ policies. With her work you can nicely anchor a temporal comparison of both nations’ deployment strategies and their respective effects. Both papers are excellent and valuable to the contemporary telecom policy scholar, policy wonk, or layperson interested in telecom policy.

It might be hard to justify the cost of a decade-old communications policy text, but this collection has aged quite well. If network neutrality, peering, copyright, or comparative deployment policies are in your line of interest then this is a wonderful book to add to your collection!

B. M. Compaine and S. Greenstein (eds.). (2001). Telecommunications Policy in Transition: The Internet and Beyond. Cambridge, Mass.: The MIT Press.

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