A Brief history of How the Net Neutrality Fight Started

In the middle of summer 2007, I was contacted by my big boss at TorrentFreak, Ernesto van de Sar, to investigate a report he’d had. According to some reports on forums like DSLreports, Comcast users were having issues keeping or making BitTorrent connections, especially seeding, and could I take a look at it?
So I did.

I reached out to my friends, and friends-of-friends, looking for Comcast customers (and non-Comcast customers), and started some research going. I was nearly a hermit for 2 weeks, as I talked people through setting up the data collection systems, and then processed the data. It did, however, pay off as it led to proof that there was indeed something screwy going on with Comcast connections. Not all connections, mind, but most, and spread all over the US, from Utah to New England.

Basically, Comcast was using a product from Sandvine to disrupt the use of BitTorrent. When it detects BitTorrent seeding, it would perform a man-in-the-middle attack, and send RST packets to both ends of the connection, terminating the connection, made to look like it came from the other end. Imagine a phone call, and the phone company decides to terminate it but makes it seem like the other side deliberately hung up on you.

We wrote the story, which was published on August 17, 2007, and the net went a bit crazy. We had hundreds of comments at TorrentFreak, and other forum and news sites that shared our story had their own horror stories by customers. Needless to say, Comcast (who have won ‘the Worst Company in America‘ award in 2010 and 2014, second place in 2008 and 2008, and third place in 2011 and 2013) denied it.

We’re not blocking access to any application, and we don’t throttle any traffic,” said Comcast spokesman Charlie Douglas to Light Reading.

They could deny all they wanted, we had significant, consistent proof, as well as information from anonymous sources inside Comcast.

By October, there had been corroboration on our story from the Associated Press and the Electronic Frontier Foundation, which further undermined the claims of Comcast that it wasn’t doing anything. Things were getting a bit hot under the collar at Comcast as a memo leaked to the Consumerist giving talking points which try to use word play to dodge around claims. A number of people were not impressed by this, including Congressman Rick Boucher, the Virginia Congressman being ranked as the 10th most powerful member of the House that year.

So it’s safe to say that things weren’t going too well for Comcast, and a class action lawsuit to close out the year didn’t make things any better. Yet while 2007 was bad, it was nothing compared to the problems that they were going to face in 2008

It started out quite well, with one of the members of the team that invented twisted wire (although he claims to be the sole inventor) penning op-eds defending Comcast and dismissing the need for net neutrality (a practice he continues to this day) but it rapidly went downhill as the FCC had opened an investigation into their activities which didn’t go well, despite Bennett’s best efforts to hyperbole the issue away.

Fortunately the other panellists at the February hearing underscored that these practices are really bad and troubling, from David Reed of the MIT media lab saying that Comcast shouldn’t call themselves an ISP, but ‘a company offering selective access to portions of the net only’, while Daniel Switzer called the Sandvine system a ‘hacker technique’. And luckily we know this because of videos that were made of the hearing since Comcast paid people – seat-warmers – to fill up the hearing and keep out concerned citizens. That’s not the behaviour of a company that thinks it was in the right. Public hearings like this exist to give commissioners a feel for the public view, often by the way the audience responds to testimony (you can sense when an audience disapproves or approves, which is why seat warmers were so important) which can give an indicate on how someone’s testimony.

The hearing was bad in another way. In their filings to the FCC prior to that hearing, Comcast claimed they only impacted protocols generating excessive burdens on the network, and then only during times of high network traffic.

Alas the Max Planck Institute had developed a tool to test for Sandvine, and in May of 2008, released data showing that they were not using it to deal with congestion, but using it 24/7, with at least half the tests showing Sandvine use at just about any hour of the day. Comcast was caught lying, AGAIN. And to prevent the likes of Comcast foiling the test by whitelisting (deliberately not applying the throttling) the servers used in the test, the EFF released their own tool.

With that in mind, the FCC released an order in August ordering Comcast to stop “discriminatory network management practices” by the end of the year.

And so ended this saga… or did it?

Comcast appealed to the Court of Appeals for DC, and the court ruled in Comcast V FCC that it didn’t have the power to make such an order as the situation stood at that time. So they rejected it but hinted that with some regulatory authority, it might be possible to implement that at a later date. So in April 2010, almost 3 years after this started, we were back where we started.

As a result to try and establish the authority to underpin this and any future orders based on the established ‘4 principles of the open internet that had been established in 2005:

  • Consumers deserve access to the lawful Internet content of their choice.
  • Consumers should be allowed to run applications and use services of their choice, subject to the needs of law enforcement.
  • Consumers should be able to connect their choice of legal devices that do not harm the network.
  • Consumers deserve to choose their network providers, application and service providers, and content providers of choice.

the FCC adopted the Open Internet Order. This basically established net neutrality and said that on fixed wire connections (thanks to lobbying, wireless[cellphone] connections are exempt) only minimally intrusive methods to deal with actual network congestion can be used. The order

Sounds great eh? ISPs didn’t think so, and Verizon sued. In 2014 the DC federal appeals court ruled in Verizon v FCC that much of the order couldn’t be applied to current ISPs, only to ‘common carriers’, which ISPs weren’t… anymore.

See back in 2002, the FCC decided that cable internet access was an ‘information service’ under Title I of the Communications Act. DSL-based services were classified with their telephonic underpinnings as a Title II provider though. So in August 2005, the FCC moved DSL (and dial-up) connections from Title II to Title I, to ‘give a level playing field’, an idea which had stated under FCC Chair Michael Powell, and was completed under Kevin Martin.

The authority required for net neutrality rests solely with Title II. So in 2015, following the Open Internet Order defeat chairman Tom Wheeler looked into reclassification of ISPs to Title II (which is back to Title II for DSL connections). We all know what happened – ISP’s lost their minds, John Oliver did a great piece about it, and the reclassification went ahead.

Republican commissioners were not happy, and refused to admit anything was needed, despite the fact that this whole situation came about because THE major ISP in the US, used hacker techniques to disrupt a perfectly legal use of the network. When I investigated it, they lied and said it didn’t happen. When the EFF and Associated Press verified by results, they eventually said ‘yeah, but only in special circumstances‘. When the Max Planck Institute showed it happened all the time, they said ‘yeah so?’ and sued to say they don’t have any requirement to treat things equally.

This is not the only action by an ISP that would violate Net Neutrality, but it is the core, and underlying cause. Free Press has a list of other violations as well, with other providers blocking other services.

In their opposition to the reclassification, people have claimed investment would die, and things would go to pot. Networks would become saturated, and it would be the end of the online universe.

None of that happened (obviously) but New FCC Commissioner Ajit Pai (who spoke strongly against the reclassification in 2015) is pushing for new rules to take things back to Title I, where there are fewer regulations and restrictions on ISPs. There’s no real reason why this would be needed, since none of the Title II horror stories has come true, yet the anti-consumer actions that can only be dealt with by classification under Title II (or preferably, by an Act of Congress, which is unlikely at present given its dysfunction) have happened and will return.

Besides which, In what way is the Internet an Information Service like Cable TV (a one-way service where a company controls and decides what information is available to service customers) than it is a communication service like the telephone (where anyone can communicate with anyone else, whatever they choose to communicate, at any time).

It’s not, and never has been, and so Title II is the obvious and proper choice. So now you have the background of how this all started, you too can make an educated and informed contribution to save the future of the internet. As with the ability to control what packets of data you get, ISPs would get the ability to choose what products and services its customers will use, by favouring certain services with things like Zero-Rating (where traffic for that service is not counted in any restrictions like data caps or speed restrictions) or by restricting other services as Comcast did with BitTorrent.

You have until July 17th to make a comment to the FCC, or August 16th for ‘reply comments’. If you want to make a comment, here’s a guide on how to make a meaningful one. If you want an idea of what to submit, here’s my submission from 2014,  which I’ll be including in my submission this time. But remember, while this started with Bittorrent, it’s not going to make the use of P2P easier.