Mediacheck

Net Neutrality: A Failure to Enforce

Two years after CRTC's high profile hearings, the worst predictions have proven true.

By Michael Geist 12 Jul 2011 | TheTyee.ca

Michael Geist, whose column runs on The Tyee Tuesdays, holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.

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Net 'throttling': without enforcement, it continues.

Two years ago, the Canadian Radio-Television and Telecommunications Commission conducted a much-publicized hearing on net neutrality, which examined whether new rules were needed to govern how Internet providers managed their networks. While many Internet users remain unaware of the issue, behind the scenes Internet providers employ a variety of mechanisms to control the flow of traffic on their networks, with some restricting or throttling the speeds for some applications.

Those practices have proven highly contentious, with creator interests, technology companies, privacy rights organizations, and consumer groups all expressing fears that they may curtail innovation, invade user privacy, stifle competition, and create an uneven playing field for content distribution. Internet providers argue that such measures are essential to provide their subscribers with a good experience at an affordable price.

The commission unveiled its Internet traffic management practices in October 2009, establishing enforceable guidelines touted as the world's first net neutrality regulations.

Where a consumer complains, Internet providers are required to describe their practices, demonstrate their necessity, and establish that they discriminate as little as possible. Targeting specific applications or protocols may warrant investigation and slowing down time-sensitive traffic likely violates current Canadian law.

While there was a lot to like about the CRTC approach, the immediate concern was absence of an enforcement mechanism. Much of the responsibility for gathering evidence and launching complaints was left to individual Canadians who typically lack the expertise to do so. Nearly two years later, an investigation into the system reveals those concerns were well founded.

Although the CRTC has not publicly disclosed details on net neutrality complaints and the resulting investigations, I recently filed an Access to Information request to learn more about what has been taking place behind the scenes. A review of hundreds of pages of documents discloses that virtually all major Canadian ISPs have been the target of complaints, but there have been few, if any, consequences arising from the complaints process. In fact, the CRTC has frequently dismissed complaints as being outside of the scope of the policy, lacking in evidence, or sided with Internet provider practices.

Meet the throttlers

Rogers Communications has been the target of nearly half of all cases opened in response to net neutrality complaints. In recent months, there have been multiple complaints arising from bandwidth throttling of World of Warcraft, a popular multi-player online game. Rogers initially denied any wrongdoing, only to later acknowledge that there was a problem. The company promised to address the issue, though no consequences arose and it was not forced to publicly disclose the issue.

In November 2010, Bell Canada was hit with a complaint over throttling download speeds from Hotfile.com, an online locker service that lets users store and access music and other files from any computer. Bell admitted its deep-packet inspection technology was mistakenly treating downloads from the site as peer-to-peer activity and slowing connection speeds. Bell promised a fix, but only after asserting that it was compliant with the guidelines.

There has been only one complaint that led to a clear change in provider policy. In January 2010, ExaTEL, an Ontario-based Internet phone company, filed a complaint against Barrett Xplore, a satellite Internet provider. ExaTEL alleged that Barrett Xplore was degrading Internet telephony traffic, creating an unfair advantage for its own phone service.

The CRTC ruled that there was no undue preference, but that the throttling of time-sensitive traffic violated its guidelines. Faced with the prospect of changing its practices or seeking special approval from the CRTC, Barrett Xplore changed its throttling approach to ensure that Internet telephony was unaffected.

Barrett Xplore was also the source of the longest running complaint as the company took months to respond to CRTC requests to improve its disclosure practices. Only after the commission threatened to launch a public proceeding into the matter did Barrett Xplore respond.

Lack of investigation

On occasion, the CRTC is itself the source of the problem.

In March 2010, a complaint was filed against Cogeco, a cable provider with a traffic-shaping policy that continuously limited bandwidth for peer-to-peer applications on a 24/7 basis. Given the CRTC's requirement that traffic management limits be linked to actual network congestion, the Cogeco policy raised red flags. Even so, the CRTC demanded that the complainant provide more evidence before it would investigate.

In a December 2009 complaint against Bell over throttling access to the MediaMonkey.com website, the CRTC dismissed the complaint on the grounds the site did not appear in Bell's list of affected sites.

Yet even when the CRTC pursues a complaint, there is little actual investigation. Most activity is limited to exchanging correspondence or prodding Internet providers to respond. This typically leads to revised disclosures, rather than real changes.

After more than 30 investigations in nearly two years, it is clear improvements are needed. At a minimum, the CRTC should be publishing all public complaints and resolutions so that the issues obtain a public airing. Moreover, the system needs penalties for violations as well as pro-active audits to ensure Internet providers are compliant with their obligations. Without change, the CRTC's net neutrality rules offer little protection for Canadian Internet users.

CRTC's response:

"Our policy was praised for being fair and practical: allowing users to have as much freedom to explore the Internet while giving the ISP the flexibility to manage their networks to ensure that their customers receive an acceptable level of service.

"As to the issue of making the complaints and relevant correspondence public, we are looking at ways to be more transparent while respecting the privacy rights of the complainants.

"Under the current legislation, the Commission has limited tools to enforce its rules."

New tools, such as AMPs (administrative monetary penalties) allow the commission to be more effective in its enforcement activities, as we have demonstrated in the case of DNCL (the Do Not Call List) and the significant penalties that were recently imposed.  [Tyee]

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