Bell has been busted for Internet throttling. (CBC story here.) No news there. The news is that they’ve been told to back up their congestion claim with numbers. (CBC story here.) Expect some creative accounting of traffic dynamics – Bell’s going to bring out the Master Chefs on this one.
Here’s the scoop:
Bell says that ‘Net neutrality is impossible because rich-media content, especially full work downloads (movies, albums, etc.), takes up so much of the very precious and limited bandwidth available that they have to clamp down on those who don’t pay extra or everyone will suffer some kind of cataclysmic Internet pipeline collapse. Therefore, they are examining the traffic, using a privacy-threatening (and common carrier status-threatening) technique called “deep packet inspection”, and slowing down users’ connections when the result of their listening-in tells them that those users are using their Bell high speed Internet connections for rich-media.
There are a lot of problems with this.
- Bell sells bandwidth at wholesale to retailers, and then clamps down at the wholesale stage, making liars out of the retailers.
- Bell sells high speed Internet access promising rich-media. (Bell’s “Total Internet Performance” package, billed at $47.95 for 7 Mbps, advertises: “Download high quality music files, stream video, or play games.” -from Bell’s website) Then they throttle the connection for those who use it for its advertised purpose. For those who distinguish between the advertised rich-media accessibility and the P2P torrents that were throttled, it must be remembered that torrents are used for legal and legitimate downloads, not just piracy. The throttling was discovered when CBC released a video to its viewers using torrent technology. (CBC story here.)
- Bell inspects the content being downloaded by its clients. Bell tells us that the bandwidth is so limited that when people use it for the thing that was marketed to them, it clogs the line for everyone else.
This last claim is being used to justify the throttling.
Let’s extend the “traffic” analogy, and see where it falls apart:
Bell wants you to believe that the highway is built, and fixed, with a certain number of lanes, etc. You get a car – one which can go very fast if the highway is empty – because the highway is, well, a highway. But when there’s traffic, you have to slow down. And when one car tries to weave frantically, or tow a boat behind it, taking up more space, it further slows traffic for everyone else. Except that Bell sold you your access to the highway bragging about how easily you could tow a boat to your country house. Now they’re telling you not only that your boat takes up too much room and you have to drive in the slow lane, but that they have a right to look inside your trailer; and if you’re towing anything other than the boat, they can force you into the slow lane, add potholes and speedbumps to the lane, etc., and do whatever they want to make your highway feel like you took the service road. Of course, this is all to open the door to them charging extra for the right to travel in the ultrafast lane – a fast lane with less traffic (since most people don’t want to pay the extra) where you can tow that trailer at full speed. (The Bell website advertises a package at $87.95, promising 16 Mbps. Remember that there are no webservers – at least none I’ve seen – that deliver beyond 5 Mbps, or so, and that your download speed is equally dependent on the other end.)
They are forcing you into the lousy lane, after violating your privacy (and potentially jeopardizing their common carrier status), because they say that you take up too much room in the overcrowded regular lanes. But are those lanes really overcrowded, or do they just seem slow because you’ve actually been secretly in the slow lane for a very long time, without them telling you? You see, the Information Superhighway (denigrated though the term is, I think it is ironically appropriate here, especially considering the denigration) is NOT a highway.
Bandwidth is not made with concrete and property expropriation. There’s no opportunity cost in expanding bandwidth in terms of encroaching on other people’s electronic property as there is with adding lanes to a real highway.
As well, if forced into the slow lane on the real highway, you can tell (you have to move your car into it). If your lane becomes the slow lane, you can tell. The other lanes are moving faster. That’s not what’s happening here. Bell is moving you into the slow lane and making it look like everyone is moving slowly too. Now that it’s been revealed that Bell is only moving people into the slow lane who are trafficking in heavy trailers, which they discover through deep-packet eavesdropping, we know that the highway is moving really fast, they just want users with heavier payloads to pay more. This raises the following questions:
What gives Bell the right to look inside our trailers? Internet Service Providers are generally considered to be these common carrier things – this is what exempts telephone companies from liability for the content of telephone conversations. As long as they keep their noses out of our business, they aren’t liable for our business. If they want to stick their noses in, first of all, they risk liability for crimes and misdemeanours being perpetrated by that communication, unless they want to deal with those issues, and they’re not police. Neither they nor we want them to be law enforcement officers.
Secondly, the infringement of users’ privacy through this sort of inspection violates PIPEDA, as users’ information is being inspected and collected without consent to the inspection or to the collection or to the purposes of that collection, all of which are conditions for data collection under PIPEDA.
Bell’s answer to this question is necessity. It is not a viable defence, in a corporate scenario (which this is) to the violation of privacy. It also may not hold up. Bell claims that they have to throttle bandwidth or Internet access will be slow for everyone. Since it was only with the discovery that Bell was shuffling high-payload users into a slow lane that we found out that there were people moving along faster, it now recasts the entire argument as follows:
Bell originally marketed ultra-high speed access as a fast lane since everything was getting slow. Now we know that it was only slow for those upon whom slowness was being forced by Bell so that they could then justify the higher price of ultra-high speed (i.e. allegedly unthrottled) access. Bell claims this is necessary, as there is an imminent threat to everyone’s bandwidth. But unlike a concrete highway, bandwidth is not based on scarce real property. It is based on virtually limitless fibre-optic trunks and always-improving server technology. The physical space occupied by these bandwidth highways is minimal; the physical space required for expansion, if it is in fact necessary, is negligible. But is it even necessary?
Bell has been ordered to provide evidence of this imminent threat to bandwidth – to show that there really is a threat and this isn’t just a scheme cooked up to justify the higher prices of allegedly unthrottled ultra-high speed Internet. (CBC story – same as the second link above.)
Get ready for the delicacies of some Master Chefs, because the numbers Bell provides to the CRTC are probably going to be more creative than the since-debunked dishes CRIA tried to serve not too long ago about the impact of downloading on the music industry. (Michael Geist’s report.)
I’m not even going to suggest what the more nefarious goals might be of deep-packet inspection; it makes me ill to think about it.
Update: The numbers are out, and Ars Technica discusses the absence of any real evidence that throttling is necessary. (Ars Technica story.)
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