Sandvine Report Should Raise Doubt About Traffic Management Practices

Mark Goldberg points to a recent Sandvine broadband report on recent broadband traffic patterns. Goldberg points to the growth of real-time entertainment traffic, such as streaming, which is consistent with what the CRTC heard during the net neutrality hearings over the summer. Most notable, however, is yet another confirmation that P2P traffic is declining as a percentage of overall traffic. Sandvine reports that it dropped by 25 percent as a share of overall traffic. Moreover, in a table on peak-time bandwidth share, Sandvine reports that web browsing leads (34.4%), followed by real-time entertainment (29.1%), and then P2P (16.9%). Sandvine also reports that peak-time usage is narrowing. In 2008, peak-time ran from 6:00 to 11:00 pm. In 2009, Sandvine said it has narrowed to 7:00 to 10:00 pm.

This data is important in considering the test established by the CRTC for reasonable traffic management practices. First, practices that target P2P will be increasingly difficult to justify (many argue application-specific approaches are never justifiable), given its declining share of traffic the application represents. Second, far broader peak-time characterizations – Bell claims that its peak-time runs from 4:30 pm to 2:00 am – are unlikely to meet the CRTC's standard for any harm from traffic management practices being as little as reasonably possible.

Canadian Labour Congress Adopts New Copyright Policy

Earlier this year, I posted on a Canadian Labour Congress IP policy that was scheduled for approval by the CLC Council. The proposal represented a dramatic shift in approach that was exceptionally one-sided. The proposal did not pass, however, and the CLC formed a working group to develop a new policy. Sources advise that the new policy was approved late last month and the results much better reflect the diversity of interests within Canada's largest labour organization. In fact, the policy combines both copyright and net neutrality, adopting a broader approach to digital policy.

On copyright, the policy statement contains 14 recommendations including expanding fair dealing, limiting the application of statutory damages, eliminating crown copyright, and linking anti-circumvention legislation to actual infringement. The 14 recommendations:

to engage in open and genuine consultation with Canadians before drafting new copyright legislation;
in the drafting of any new copyright legislation, to balance the needs of Canadian users, creators and owners of copyrighted works in a manner that reflects and addresses Canadian concerns;
to introduce and pass amendments to the Canadian Copyright Act to conform with the World Intellectual Property Organization's (WIPO) Internet Treaties and to implement those treaties;
to expand the Fair Dealing provisions of the Copyright Act to achieve an appropriate balance between the rights of users, creators and owners of copyrighted works;
to direct enforcement measures at commercial copyright infringement, including the counterfeit and pirated goods that threaten the health, safety and jobs of Canadians;
to amend the Statutory Damages provisions of the Copyright Act to remove their application from those who copy a work with a reasonable belief that their actions are justified by Fair Dealing or other statutory rights;
to advocate for the establishment of an audio-visual performance rights treaty at the WIPO and establish such rights in domestic legislation to benefit performers and creators for use of their work;
to eliminate Crown Copyright so that government materials can be freely used by Canadians;
to introduce anti-circumvention provisions (measures that protect digital locks) in the Copyright Act that renders circumvention unlawful if such circumvention is for the purposes of copyright infringement;
to ensure that the use of digital locks or other such technological measures for the protection of copyrighted works in Canada will be consistent with the established principles and practices of current copyright legislation in relation to access for “fair dealing” purposes;
to amend the Copyright Act to protect the holders of moral rights either by recognizing such rights as non-waivable and inalienable personal rights, or by considering further limitations and conditions on such waivers;
to amend the current Canadian copyright ownership formulation in section 13(3) of the Copyright Act where the employer, not the author or creator, is deemed to be the first owner of the copyright so it is less onerous for a wider range of creative workers;
to update and expand the Canadian private copying regime to ensure that creators are appropriately compensated for uses of their work in all media while affording users the right to copy works they have obtained legally for personal use; and
to enact an effective legal framework in the Copyright Act governing internet service providers that ensures providers play a role in addressing copyright infringement on the internet and that allegations of copyright infringement are dealt with fairly.

This represents a dramatic shift for an organization representing three million Canadian workers that includes groups such as ACTRA. When I posted on this issue earlier this year, I suggested that people contact the CLC to express their concern with the proposed resolution. Given this new policy, it would similarly be appropriate to contact the CLC to express support for taking a closer look at the issue and working toward a more balanced policy approach.

uTorrent 2.0 To Eliminate The Need For ISP Throttling

BitTorrent Inc. is about to launch a completely improved implementation of the BitTorrent protocol that will benefit both users and ISPs. uTorrent 2.0, which is currently being tested by thousands of people, will eliminate the need for ISPs to throttle or stop BitTorrent traffic, and will optimize the download experience for its users.

Liberals Call for Better Internet and Wireless Competition, Net Neutrality

The Liberals have issued a noteworthy release calling for better competition and service for wireless and Internet services in Canada. The party says there is a real competition problem that calls for "concrete proposals to lower prices and improve cell phone and Internet service for urban and rural Canadians." The specific recommendations include:

clear guidelines to facilitate tower-sharing and roaming agreements for new entrants
re-instating the cellphone cost calculator to provide greater transparency
adopt clear net neutrality principles and regulations. The proposed neutrality principles include "all internet networks, including wireless networks, must treat all lawful content, applications and services in a non-discriminatory manner." The policy also calls for full disclosure of network management practices
new regulations for wholesale Internet services and encourage investment in Internet infrastructure

The release demonstrates the increasing political attention to digital economy issues and mounting concern over Canada's lagging performance. Given yesterday's CRTC decision involving Globalive, it would be useful for the party to state its position on foreign ownership restrictions for telecom providers as there is an urgent need to address the issue of injecting new competition into the Canadian marketplace.

CRTC Sends Message: Traffic Management Rules Apply To Wireless Too

CRTC Chair Konrad von Finckenstein delivered the keynote address at the International Institute of Communications conference in Montreal yesterday. The speech reviewed last week's traffic management/net neutrality decision. On the issue of wireless, he stated:

At some point down the road, we will need to review the regulatory measures that apply to wireless service providers and their use of ITMPs. Until then, we expect ISPs offering mobile broadband services to respect our framework.

During the Q&A, he was asked directly whether there would be a hearing for wireless traffic management issues. He responded by reiterating that the CRTC expects carriers to follow the same guidelines for wireless. If they do, no hearing. If they don't, they can expect a hearing where the CRTC will endeavour to establish clear legal requirements that there are similar traffic management requirements.

Net Neutrality: When is Network Management “Reasonable”?

Last week the FCC released its much-awaited Notice of Proposed Rulemaking (NPRM) on network neutrality. As expected, the NPRM affirms past FCC neutrality principles, and adds two more. Here’s the key language:

1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.

2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.

3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.

4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers.

5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

6. Subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.

That’s a lot of policy packed into (relatively) few words. I expect that my colleagues and I will have a lot to say about these seemingly simple rules over the coming weeks.

Today I want to focus on the all-purpose exception for “reasonable network management”. Unpacking this term might tell us a lot about how the proposed rule would operate.

Here’s what the NPRM says:

Reasonable network management consists of: (a) reasonable practices employed by a provider of broadband Internet access to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices.

The key word is “reasonable”, and in that respect the definition is nearly circular: in order to be “reasonable”, a network management practice must be (a) “reasonable” and directed toward certain specific ends, or (b) “reasonable”.

In the FCC’s defense, it does seek comments and suggestions on what the definition should be, and it does say that it intends to make case-by-case determinations in practice, as it did in the Comcast matter. Further, it rejects a “strict scrutiny” standard of the sort that David Robinson rightly criticized in a previous post.

“Reasonable” is hard to define because in real life every “network management” measure will have tradeoffs. For example, a measure intended to block copyright-infringing material would in practice make errors in both directions: it would block X% (less than 100%) of infringing material, while as a side-effect also blocking Y% (more than 0%) of non-infringing material. For what values of X and Y is such a measure “reasonable”? We don’t know.

Of course, declaring a vague standard rather than a bright-line rule can sometimes be good policy, especially where the facts on the ground are changing rapidly and it’s hard to predict what kind of details might turn out to be important in a dispute. Still, by choosing a case-by-case approach, the FCC is leaving us mostly in the dark about where it will draw the line between “reasonable” and “unreasonable”.

Net Neutrality in Canada Still a Work in Progress

The release last week of the Canadian Radio-television and Telecommunications Commission's report on Internet traffic management – known as the net neutrality decision – attracted national attention. Canadians, Internet service providers, and politicians debated whether the regulator had struck the right balance in addressing how ISPs manage Internet traffic. While some headlines seemed to suggest that the CRTC has given Canada's ISPs the green light to do as they please, my weekly technology law column (Toronto Star version, homepage version) argues the reality is that the decision establishes several notable requirements and restrictions, but leaves the door open for further action from the government.

First, the commission adopted a new test to determine reasonable traffic management practices. Where a consumer complains, ISPs will be required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible. The CRTC added that targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

Second, the commission rejected arguments that the market would ensure ISPs provide adequate disclosure on how they manage their networks. Instead, it mandated full disclosure of traffic management practices, including information on when they occur, which applications are affected, and their impact on Internet speeds.

Third, the CRTC banned the use of personal information obtained through deep-packet inspection for anything other than traffic management purposes. By also prohibiting the disclosure of such information, the commission ensured that inspecting user traffic cannot be parlayed into marketing opportunities.

These conditions ensure that traffic management is not a free-for-all. The days of ISPs arguing they can do whatever they please on their networks – as some intimated during the summer hearing – are over.

With the CRTC framework in place, it now falls to Industry Minister Tony Clement to become more engaged on the issue. Both the Liberals and NDP have expressed support for net neutrality and some groups have renewed their demands for new legislation.

Yet Clement can advance the issue in several meaningful ways without tabling a bill. Critics of the CRTC approach rightly note that the onus falls to consumers to compile evidence of traffic management practices that run afoul of the commission's test and file complaints.

When asked about the issue last week in the House of Commons, Clement stated that he is "watching those providers very closely and I do not want to see a situation where consumers are put at risk in terms of their access to the Internet." He can go several steps further by asking the CRTC to conduct regular compliance audits of ISP traffic management practices and by providing financial support to consumer groups who wish to conduct their own investigations.

The federal government also can play a significant role in establishing neutrality for wireless Internet access. The CRTC acknowledged that many of the same issues arise in the wireless context and that it expects wireless carriers to follow the same guidelines. Within the next two years, the federal government will conduct another spectrum auction as part of the digital television transition. Clement could incorporate net neutrality requirements directly into the bidding process, effectively mandating neutrality into new wireless services.

Finally, Clement should acknowledge that net neutrality concerns are largely a function of an uncompetitive marketplace that allows ISPs to leverage their positions without fear of losing customers. The best way to address net neutrality is therefore to give priority to increased competition in the Canadian Internet marketplace.

Multiple studies have concluded that Canadians pay higher prices for slower speeds as compared to many other countries. If Clement can solve that problem, he'll likely go a long way to addressing net neutrality in the process.

CRTC Sets Net Neutrality Framework But Leaves Guarantees More Complaints

The CRTC's net neutrality (aka traffic management) decision is out and though it does not go as far as some advocates might hope, it unquestionably advances the ball forward on several important fronts. When considering the decision, it is important to remember that 12 months ago, there was virtually no ISP disclosure of traffic management practices and even an unwillingness to acknowledge that there was an issue. Today's CRTC decision signifies that traffic management is not a free-for-all and the days of ISPs arguing that they can do whatever they please on their networks is over. That said, it also guarantees that traffic management practices such as throttling will continue and it is going to take more complaints to concretely address the issue.

The key elements of the decision on retail services:

1. A new framework for considering traffic management. Consumers can complain about traffic management practices or the Commission can bring an action on their own. Where there is a credible complaint, the ISP will be required to:

Describe the ITMP being employed, as well as the need for it and its purpose and effect, and identify whether or not the ITMP results in discrimination or preference.
If there is any degree of discrimination or preference:

demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;
establish that the ITMP results in discrimination or preference as little as reasonably possible;
demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and
explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP.

2. There are two key additional considerations. First, traffic management that degrades or prefers one application over another may warrant investigation under section 27(2) of the Act. Second, economic traffic management practices (ie. bit caps) are generally viewed as ok.

3. The Commission has stepped into the throttling issue. It has ruled that for time-sensitive Internet traffic (ie. real-time audio or video), where the throttling creates noticeable degredation, this "amounts to controlling the content and influencing the meaning and purpose of the telecommunications in question." The Commission will require prior approval for such activities. Even for non-sensitive traffic, the CRTC has ruled that it is possible to slow down to an extent that it amounts to blocking or controlling the content, therefore requiring prior approval.

4. The Commission has mandated new disclosure requirements. It is requiring ISPs to disclose their traffic management practices to customers, including:

why there are being introduced
who is affected
when it will occur
what Internet traffic is subject to the traffic management
how it will affect an Internet user's experience, including specific impact on speed

5. New privacy requirements

The Commission has established new privacy requirements on the use of information obtained from deep-packet inspection. It now mandates ISPs "not to use for other purposes personal information collected for the purposes of traffic management and not to disclose such information."

In addition to the retail side of the equation, the decision also addresses wholesale (ie. ISP to ISP). In a nutshell, where incumbents treat independents in the same manner as their retail customers, the same complaints-based approach applies. Where the approach is more restrictive, prior approval is required.

While this decision will undoubtedly leave many disappointed, a full prohibition on throttling was never in the cards. Many consumer groups and net neutrality advocates got some of what they asked for – a test that looks a lot like what they recommended, an acknowledgement of the problems with application-specific measures, new disclosure requirements, new privacy safeguards, and agreement that throttling can violate the law in certain circumstances. That isn't bad as an overall framework.

The big question is how to enforce these rules. The larger ISPs may well view the decision as a green light to continue doing what they are doing with a bit more communications. Indeed, by placing the onus squarely on consumers, the CRTC has virtually guaranteed continued throttling and a steady stream of cases. There is now more guidance and guidelines but it will take more than just this decision to provide Canadians with the neutral network so many crave.

CRTC Sets Net Neutrality Framework But Leaves Guarantees More Complaints

The key elements of the decision on retail services:

Describe the ITMP being employed, as well as the need for it and its purpose and effect, and identify whether or not the ITMP results in discrimination or preference.
If there is any degree of discrimination or preference:

demonstrate that the ITMP is designed to address the need and achieve the purpose and effect in question, and nothing else;
establish that the ITMP results in discrimination or preference as little as reasonably possible;
demonstrate that any harm to a secondary ISP, end-user, or any other person is as little as reasonably possible; and
explain why, in the case of a technical ITMP, network investment or economic approaches alone would not reasonably address the need and effectively achieve the same purpose as the ITMP.

4. The Commission has mandated new disclosure requirements. It is requiring ISPs to disclose their traffic management practices to customers, including:

why there are being introduced
who is affected
when it will occur
what Internet traffic is subject to the traffic management
how it will affect an Internet user's experience, including specific impact on speed

5. New privacy requirements

CRTC’s Net Neutrality Decision Coming This Week

The CRTC has announced that it will release its net neutrality decision this week.

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LibertyVoice

Freedom and internet

Sandvine Report Should Raise Doubt About Traffic Management Practices

Canadian Labour Congress Adopts New Copyright Policy

uTorrent 2.0 To Eliminate The Need For ISP Throttling

Liberals Call for Better Internet and Wireless Competition, Net Neutrality

CRTC Sends Message: Traffic Management Rules Apply To Wireless Too

Net Neutrality: When is Network Management “Reasonable”?

Net Neutrality in Canada Still a Work in Progress

CRTC Sets Net Neutrality Framework But Leaves Guarantees More Complaints

CRTC Sets Net Neutrality Framework But Leaves Guarantees More Complaints

CRTC’s Net Neutrality Decision Coming This Week

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