Net neutrality: Are ISPs already choking the online bandwidth of high traffic content providers?

Mark Leiser: I am a PhD Candidate in Cyber Law at the University of Strathclyde in Glasgow. I have written submissions for the Leveson Inquiry into the culture and ethics of the media and for the Scottish Parliament on the use of social media during trials. My PhD is supervised by Professor Andrew Murray at the London School of Economics and focuses on the effectiveness of cyber-regulation. My research and interests revolve around main areas of Internet law and policy including internet governance & regulation, democracy, social media, privacy, and intellectual property. My PhD research focuses on developing a system of modelling to measure the effectiveness and legitimacy of Internet Regulation. I write in a personal capacity.

Last week I wrote about potential doom for the internet as a result of a US court appeal on the issue of net neutrality. The ruling could allow companies such as Verizon and Comcast to monetise the movement of traffic across networks, a change that has serious implications for internet users, businesses and services.

Problems: A transcript of the conversation over slow internet speed

Now, a software engineer for cloud company iScan, Dave Raphael, has claimed that Verizon already appears to be throttling the speeds of customers’ connections to services like Netflix and Amazon web services. Raphael said he was first alerted to the problem on 26 January when the president of his company complained of "major slowdowns" while using iScan remotely. After some further testing, Raphael noticed some odd discrepancies between both Verizon broadband connections he had access to. Both his residential and his company's business plan went through the same Verizon routers, but his residential plan was getting unusably slow speeds to places like Amazon’s web services (AWS).

Initially, his discussion with a Verizon service representative appeared to confirm this, although it's uncertain whether such a ‘first-tier’ line of customer services agent would be privy to this type of high-level technical information.

Connections to AWS were limited to 40 kBps, Raphael said - about 240 times slower than the 75 Mbps fibre optic connection Raphael was paying for. Raphael discovered that even content hosted on AWS by others, including Netflix, was also slower.

However, Verizon has denied taking steps to degrade some parts of the Internet: "We treat all traffic equally, and that has not changed," a Verizon statement said. "Many factors can affect the speed of a customer’s experience for a specific site, including that site’s servers, the way the traffic is routed over the internet and other considerations. We are looking into this specific matter, but the company representative was mistaken. We’re going to redouble our representative education efforts on this topic."

Under the US Federal Communications Commission’s (FCC) net neutrality rules, broadband companies were previously forbidden from slowing down or blocking connections to content. That prohibition was struck by a Washington DC court last month, enabling companies to legally throttle services if they chose. Verizon suggested in their oral argument before the court last autumn that it was interested in different service and pricing models.

A complex case, it can be best described as changing the way Internet Service Providers (ISPs) can charge for traffic that travels across networks. Historically, the term net neutrality meant that providers had to treat traffic in a neutral manner; that mean not discriminating among the data packets that make up the traffic of the internet. As a result, the internet was a dumb network. However, companies like Verizon and Comcast were never considered to be public utilities and rules that the FCC had imposed in its Open Internet Order were deemed to be ultra vires.

Accordingly, a court ruled that “the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.” As a result, companies like Verizon and Comcast are now free to start imposing different pricing plans onto providers like Google and Netflix which, in order to function, require heavy traffic usage across the internet.

The decision could completely alter the internet landscape as we know it.

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