Sunday, May 18, 2014

Net Neutrality - The Devil is in the Details

A few days ago the FCC voted to start the rule making process concerning net neutrality.  TechDirt reported: "NY Times And Washington Post Describe Yesterday's Net Neutrality Vote In Diametrically Opposite Ways". Of particular concern is the heading: "The Federal Communications Commission voted 3-2 on Thursday to move forward with a set of proposed rules aimed at guaranteeing an open Internet prohibiting high-speed Internet service providers from blocking or discriminating against legal content flowing through their pipes." (emphasis added) in the New York Times. So who gets to define the words "legal content" and the subsequent consequences?

Will the content producers be the ones defining what is legal and illegal? If so, it makes a mockery of the judicial process. Technically, if someone believes an action is illegal, they take it to court and present facts to obtain a judgment. I seriously doubt that the content industry wants to be contained by the relatively slow and cumbersome judicial process. Instead, they would probably wish to take immediate action with absurdly minimal proof against anyone they whimsically designate as an offender.

What about the rights of the supposed offender? If the content producers can unilaterally designate someone as an offender, what are their rights to refute those charges?  Will there be penalties imposed on those making false claims of illegal activity? If not; that would allow the content producers to accuse and take punitive action against anyone without the fear of consequences. This would be a violation of due process. Basically, justice by intimidation.

Will the content producers be able to read your content? To assess whether content is "legal" or not, would appear to imply that the content producers would have an opportunity to conduct warrantless wiretapping on content. Reading a persons' content stream to assess whether they are being legal or illegal would be a violation of due process. Technically, to have a wiretap put into place one needs substantial verifiable suspicion that a crime is being committed.

Making the ISP providers the "police" to protect the content producers. This is actually quite repulsive. The basic responsibility of the ISPs is to deliver content. Not to interfere with the delivery of that content. The content producers should not be able to demand that the ISPs read content to protect them (the content producers) and/or to take any adverse action against the supposed offender. For example, if you believe that an illegal action is being taken in a nearby house, you can't simply walk up to a random third person and demand that they be the ones to break into that house to find and arrest any suspected burglar. That is supposed to the responsibility of the police and the judicial system.

Who would pay for the ISP "police".  The answer unfortunately is quite obvious, the consumer through increased subscription fees.  Forcing the ISPs to act as "police" places a resource burden on them.  Consequently, it should be the content producers that should pay the ISPs "police" since the ISPs would be working for the direct and sole benefit of the content producers.

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