H.R. 5994

What a title, eh?  Well, that little title up there may impact how you use the Internet in the future..  H.R. 5994, known as the “Internet Freedom and Non-Discrimination Act of 2008,” is the latest attempt by the US Congress to get a handle on Internet access.  In short, this is another play in the Net Neutrality battle.  I’m no lawyer, but it seems that this is a pretty straightforward document.

H.R. 5994 is intended to be an extension of the Clayton Anti-Trust Act of 1914.  It is intended to “promote competition, to facilitate trade, and to ensure competitive and nondiscriminatory access to the Internet.”  The main theme, as I see it, is that providers can’t discriminate against content providers.  In other words, if they prioritize web traffic on the network, then all web traffic, regardless of origin, should be prioritized.

At first glance, this seems to be a positive thing, however there may be a few loopholes.  For instance, take a look the following from Section 28(a):

“(3)(A) to block, to impair, to discriminate against, or to interfere with the ability of any person to use a broadband network service to access, to use, to send, to receive, or to offer lawful content, applications or services over the Internet;”

From the looks of it, it sounds like you can’t prevent known “bad users” from getting an account, provided they are using the account for legal purposes.  As an example, you couldn’t prevent a known spammer from getting an account, provided, of course, that they obey the CAN-SPAM Act.

And what about blocklists?  Spam blocklists are almost a necessity for mail servers these days, otherwise you have to process every single mail that comes in.  3(A) specifically dictates that you can’t block lawful content…  Unfortunately, it’s not always possible to determine if the mail is lawful until it’s processed.  So this may turn into a loophole for spammers.

The act goes on with the following:

“(4) to prohibit a user from attaching or using a device on the provider’s network that does not physically damage or materially degrade other users’ utilization of the network;”

This one is kind of scary because it does not dictate the type of device, or put any limitations on the capabilities of the device, provided it “does not physically damage or materially degrade other users’ utilization of the network.”  So does that mean I can use any type of DSL or Cable modem that I choose?  Am I considered to be damaging the network if I use a device that doesn’t allow the provider local access?  Seems to me that quite a few providers wouldn’t be happy with this particular clause…

Here’s the real meat of the Net Neutrality argument, though.  Section 28(b) states this:

“(b) If a broadband network provider prioritizes or offers enhanced quality of service to data of a particular type, it must prioritize or offer enhanced quality of service to all data of that type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or enhanced quality of service.”

Wham!  Take that!  Basically, you can’t prioritize your own traffic at the expense of others.  So a local provider who offers a VoIP service can’t prioritize their own and not prioritize (or block) Skype, Vonage, or others.  But, there’s a problem here..  Does the service have to use established standards to be prioritized?  For instance, Skype uses a proprietary VoIP model.  So does that mean that providers do not have to prioritize it?

Providers do, however, get some rights as well.  For instance, Section 28 (c) specifically states:

    `(c) Nothing in this section shall be construed to prevent a broadband network provider from taking reasonable and nondiscriminatory measures–
    • `(1) to manage the functioning of its network, on a systemwide basis, provided that any such management function does not result in discrimination between content, applications, or services offered by the provider and unaffiliated provider;
    • `(2) to give priority to emergency communications;
    • `(3) to prevent a violation of a Federal or State law, or to comply with an order of a court to enforce such law;
    • `(4) to offer consumer protection services (such as parental controls), provided that a user may refuse or disable such services;
    • `(5) to offer special promotional pricing or other marketing initiatives; or
    • `(6) to prioritize or offer enhanced quality of service to all data of a particular type (regardless of the origin or ownership of such data) without imposing a surcharge or other consideration for such prioritization or quality of service.

So providers are allowed to protect the network, protect consumers, and still make a profit.  Of course, assuming this becomes law, only time will tell what the courts will allow a provider to consider “protection” to be…

It looks like this is, at the very least, a good start to tackling this issue.  That is, if you believe that the government should be involved with this.  At the same time, this doesn’t appear to be something most providers would be interested in.  From a consumer standpoint, I want to be able to get the content I want without being blocked because it comes from Google and not Yahoo, who the provider has an agreement with.  Since most consumers are in an area with only one or two providers, this can be a good thing, though.  It prevents a monopoly-type situation where the consumer has no choice but to take the less-than-desirable deal.

This is one of those areas where there may be no solution.  While I side with the providers in that they should be able to manage their network as they see fit, I can definitely see how something needs to be done to ensure that providers don’t take unfair advantage.  Should this become law, I think it will be a win for content providers rather than Internet providers and consumers.

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