My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the Rogers traffic shaping issue and the resulting impact on consumer rights, competition, and non-P2P applications. If you read my original posting and the many comments that followed, the column covers similar terrain. I therefore think it might be more useful to respond to an interesting posting from Matt Roberts on the Rogers issue. Roberts confirms the Rogers shaping (as does Mark Evans in a posting that refers to it as bandwidth management, a distinction without a difference in my view) but then takes me to task for wrapping it into the net neutrality debate.
The post raises an interesting and important question – is throttling/traffic shaping a net neutrality issue? I should note that regardless of the answer, I believe there is no question that there are problems with the current Rogers approach. The lack of transparency, the misleading service claims, and the inclusion of bandwidth caps that are rendered difficult to achieve all point to an issue that should attract the attention of regulatory agencies (and perhaps class action lawyers).
As for whether there is a net neutrality problem, that likely depends on your definition of net neutrality.
The Telecommmunications Policy Review Panel called for a net neutrality provision on the following terms:
"The Telecommunications Act should be amended to confirm the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of all public telecommunications networks providing access to the Internet. This amendment should
(a) authorize the CRTC to administer and enforce these consumer access rights,
(b) take into account any reasonable technical constraints and efficiency considerations related to providing such access, and
(c) be subject to legal constraints on such access, such as those established in criminal, copyright and broadcasting laws."
Does the Rogers action run afoul of this definition? Possibly – the traffic shaping certainly makes it difficult to access certain applications and content. The issue is whether the technical constraints are "reasonable". Given the impact on all encrypted data, the fact that consumers have paid for a set amount of monthly bandwidth, and the fact that the constraints render some applications all but unusable, I think that the constraints are arguably unreasonable.
Another possible definition is the one included in the AT&T/Bell South merger approval. That defined a neutral network as:
AT&T/BellSouth also commits that it will maintain a neutral network and neutral routing in its wireline broadband Internet access service. This commitment shall be satisfied by AT&T/BellSouth's agreement not to provide or to sell to Internet content, application, or service providers, including those affiliated with AT&T/BellSouth, any service that privileges, degrades or prioritizes any packet transmitted over AT&T/BellSouth's wirelines broadband Internet access service based on its source, ownership or destination.
Is Rogers selling a service that privileges, degrades or prioritizes any packet transmitted over its service based on its source, ownership or destination? Possibly – the traffic shaping is obviously degrading packets. The issue is whether it is based on source, ownership, or destination. I think it arguably is – the person who wants to access music online can choose between an unimpeded Rogers MusicStore or from degraded torrents (authorized or personal, non-commercial downloads). That looks like degrading based on source to me.
Finally, we could use Roberts' own definition – "what net neutrality should mean is two of the same services get treated within the network equally." Once again, I think there is reason for concern. Leaving aside the differential treatment of VoIP services with respect to bandwidth caps (Rogers own service does not count against the monthly cap, while third party services do), the current shaping practices points to the prospect of Rogers treating its own video (ie. video from its new batch of television stations) differently from video distributed via BitTorrent or Rogers treating a future business VPN service differently from those caught in traffic shaping crossfire.
Is Rogers doing that today? Given the lack of transparency surrounding the current service, it is hard to know. It is certainly clear that absent legislation to the contrary, the company will have the economic motivation and technical capability to do so in the months ahead. For these reasons, I don't see how you can avoid the net neutrality issue when assessing Rogers traffic shaping.