Internet Packet Switching and Its Impact on the Network Neutrality Debate and the Balance of Power

Between IP Creators and Consumers

Rob Frieden, Pioneers Chair and Professor of TelecommunicationsPenn State University

email: rmf5@psu.edu; web site: http://www.personal.psu.edu/faculty/r/m/rmf5blog site: http://telefrieden.blogspot.com/

A Presentation at the A Presentation at the 2007 IP Scholars Conference 2007 IP Scholars Conference

DePaul University, School of LawDePaul University, School of LawChicago, Illinois Chicago, Illinois August 9-10, 2007August 9-10, 2007

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Main Points of the PaperMain Points of the Paper

Improvements in traffic management technology make it Improvements in traffic management technology make it efficient and economical for Internet Service Providers efficient and economical for Internet Service Providers (“ISPs”) to operate non-neutral networks offering “better than (“ISPs”) to operate non-neutral networks offering “better than best efforts” traffic routing and variable quality of service. best efforts” traffic routing and variable quality of service.

ISPs oppose any limitation on their options for tiering and ISPs oppose any limitation on their options for tiering and diversifying services that can accrue financial, operational and diversifying services that can accrue financial, operational and consumer benefits, but also achieve anticompetitive goals.consumer benefits, but also achieve anticompetitive goals.

Net neutrality advocates believe that the Internet has Net neutrality advocates believe that the Internet has contributed to national productivity, economic opportunity and contributed to national productivity, economic opportunity and innovation in light of “best efforts,” end-to-end connectivity.innovation in light of “best efforts,” end-to-end connectivity.

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Main Points of the PaperMain Points of the Paper

Traffic management using “packet sniffing” also provides Traffic management using “packet sniffing” also provides ISPs with the likely ability to respond to Digital Right ISPs with the likely ability to respond to Digital Right Management instructions from content providers by blocking Management instructions from content providers by blocking copyright infringing traffic rather than delivering it with copy copyright infringing traffic rather than delivering it with copy protection intact. protection intact.

The Network Neutrality debate should include consideration The Network Neutrality debate should include consideration whether active traffic management eliminates the safe harbor whether active traffic management eliminates the safe harbor exemption from secondary liability for copyright infringement exemption from secondary liability for copyright infringement provided by provided by §§512 of the Digital Millennium Copyright Act. 512 of the Digital Millennium Copyright Act.

When ISPs elect to operate non-neutral networks through When ISPs elect to operate non-neutral networks through cheap and effective traffic management technology, they cheap and effective traffic management technology, they challenge the presumption that ISPs can only operate as challenge the presumption that ISPs can only operate as neutral conduits.neutral conduits.

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Packet Sniffing ExplainedPacket Sniffing Explained

ISPs use packet switching to subdivide traffic for routing over any available ISPs use packet switching to subdivide traffic for routing over any available network. network.

Each packet contains a header that provides routers with needed information about Each packet contains a header that provides routers with needed information about the source and destination of traffic using addressing and management protocols the source and destination of traffic using addressing and management protocols such as TCP/IP. Payloads in packets contain content. such as TCP/IP. Payloads in packets contain content.

Improvements in router technology make it possible for ISPs to secure more Improvements in router technology make it possible for ISPs to secure more information from headers for purposes of tiering and prioritizing traffic based on information from headers for purposes of tiering and prioritizing traffic based on the nature of the content, e.g., streaming content needing instantaneous (“real 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 time”) delivery and high quality of service versus store and forward content such as email not requiring immediate processing particularly during network congestion.email not requiring immediate processing particularly during network congestion.

Routers also can interrogate (“sniff”) headers for instructions on Digital Rights Routers also can interrogate (“sniff”) headers for instructions on Digital Rights Management, possibly including a go/no go determination whether the intended Management, possibly including a go/no go determination whether the intended recipient has the requisite “rights” to receive a specific stream of packets. recipient has the requisite “rights” to receive a specific stream of packets.

TCP Packet Header  

4500 XXXX

XXXX

XXXX XXXX XXXX XXXX XXXX  

4b Ver

4b H dL n

ToS

Length in Bytes

IP ID

0 D F M F

13-bit Frag. Offset

TTL

Protocol

Header Checksum

Source IP

Address

XXXX XXXX XXXX

XXXX XXXX XXXX XXXX XXXX  

Destination IP Address

Source Port

Destination Port

Sequence Number Ack Number

 

XXXX XXXX XXXX

XXXX  

source: Michael McDonnell and Winterstorm Solutions, Inc.available at: http://winterstorm.ca/download/packets.pdf.

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An Easier AnalogyAn Easier Analogy

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.

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How Might ISPs Lose the How Might ISPs Lose the §§512 Safe 512 Safe Harbor Exemption?Harbor Exemption?

§512 of the DMCA balances ISPs’ obligations not to induce §512 of the DMCA balances ISPs’ obligations not to induce or contribute to copyright infringement with the national or contribute to copyright infringement with the national interest in promoting Internet commerce.interest in promoting Internet commerce.

The DMCA establishes 4 safe harbor exemptions when The DMCA establishes 4 safe harbor exemptions when “online service pr“online service providers” operate as a neutral, transitory oviders” operate as a neutral, transitory conduit for content, temporarily cache content, store content at conduit for content, temporarily cache content, store content at the direction of a user and provide search tools for linking to the direction of a user and provide search tools for linking to content created by others.content created by others.

ISPs lose an exemption by not responding to requests to take ISPs lose an exemption by not responding to requests to take down infringing content and arguably when they know about down infringing content and arguably when they know about infringement and have the right and ability to control such infringement and have the right and ability to control such conduct.conduct.

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Recalculating the Cost of Deep Packet Inspection

ISPs characterize network neutrality as creating disincentives to invest in next ISPs characterize network neutrality as creating disincentives to invest in next generation infrastructure and the (re)imposition of “confiscatory” common carrier generation infrastructure and the (re)imposition of “confiscatory” common carrier regulation.regulation.

Ironically ISPs have financially benefited from the presumption that they operate as Ironically ISPs have financially benefited from the presumption that they operate as neutral conduits.neutral conduits.

When an ISP decides to use packet sniffing to differentiate service it cannot readily When an ISP decides to use packet sniffing to differentiate service it cannot readily ignore the DRM instructions also contained in the header. ignore the DRM instructions also contained in the header.

Arguably ISPs can act on DRM flags using ISP routers as opposed to sending the 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 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). 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 The potential loss of the DMCA Sec. 512 safe harbor may change the cost/benefit analysis in non-neutral network operation.analysis in non-neutral network operation.

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ConclusionsConclusions

ISPs do not have an affirmative duty to monitor their traffic ISPs do not have an affirmative duty to monitor their traffic streams to detect IP infringement. streams to detect IP infringement.

However technological innovations in routers and packet However technological innovations in routers and packet inspection create opportunities for ISPs to generate more inspection create opportunities for ISPs to generate more revenue by operating non-neutral networks. revenue by operating non-neutral networks.

When making the affirmative decision to use packet sniffing When making the affirmative decision to use packet sniffing for service tiering, ISPs no longer remain passive conduits.for service tiering, ISPs no longer remain passive conduits.

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Conclusions (cont.)Conclusions (cont.)

Having decided not operate as non-neutral conduits, ISPs cannot readily Having decided not operate as non-neutral conduits, ISPs cannot readily ignore DRM formatting standards that could insert header information ignore DRM formatting standards that could insert header information about whether ISPs should continue to route traffic in light of possible about whether ISPs should continue to route traffic in light of possible piracy. piracy.

Deep packet inspection may provide some degree of contemporaneous Deep packet inspection may provide some degree of contemporaneous DRM that ISPs may not ignore if they want to retain safe harbor exemption DRM that ISPs may not ignore if they want to retain safe harbor exemption from secondary liability. from secondary liability.

If ISPs comply with DRM instructions creating a go/no go decision If ISPs comply with DRM instructions creating a go/no go decision regarding traffic routing, software and hardware will have preempted end regarding traffic routing, software and hardware will have preempted end users from accessing content on fair use grounds. users from accessing content on fair use grounds.