The Search for Net Neutrality

My weekly Law Bytes column (Toronto Star version, freely available version) examines the growing trend toward a two-tiered Internet, which upends the longstanding principle of network neutrality under which ISPs treat all data equally.

I argue that the network neutrality principle has served ISPs, Internet companies, and Internet users well.  It has enabled ISPs to plausibly argue that they function much like common carriers and that they should therefore be exempt from liability for the content that passes through their systems. 

Websites, e-commerce companies, and other innovators have also relied on network neutrality, secure in the knowledge that the network treats all companies, whether big or small, equally.  That approach enables those with the best products and services, not the deepest pockets, to emerge as the market winners.

Internet users have similarly benefited from the network neutrality principle.   They enjoy access to greater choice in goods, services, and content regardless of which ISP they use.  While ISPs may compete based on price, service, or speed, they have not significantly differentiated their services based on availability of Internet content or applications, which remains the same for all.

Notwithstanding its benefits, in recent months ISPs have begun to chip away at the principle.

Internet telephony provides a classic illustration of this trend.  As each major ISP races to offer their own Internet telephony services, some have begun to use their network position to unfairly disadvantage the competition.  For example, Canadian cable provider Shaw now offers a premium VoIP service that promises to prioritize Internet telephony traffic for a monthly fee.  The potential implications of such a service are obvious – the use of competing services will require a supplemental fee, while Shaw will be free to waive the charge for its own service.

While ISPs once avoided content intervention, earlier this summer, Telus blocked access to Voices For Change, a pro-union website.  The company has since indicated that it was a one-time event, though in the process it also blocked more than 600 additional websites hosted at the same IP address and cut off entire communities from the controversial content.

Most recently, customers of Rogers, Canada’s largest cable ISP, have speculated that the company has begun to block access to peer-to-peer services such as BitTorrent as well as the downloading of podcasts from services such as iTunes. While Rogers initially denied the charges, it now acknowledges that it uses "traffic shaping" to prioritize certain online activity. As a result, applications that Rogers deems to be a lower priority rity may cease to function effectively.

Moreover, blocking services, websites, and certain applications may not be the end game.  Some ISPs see the potential for greater revenue by charging websites or services for priority access to their customers.  In the U.S., BellSouth Chief Technology Officer executive William L. Smith, recently mused about the potential to charge a premium to websites for prioritization downloading, noting that Yahoo could pay to load faster than Google.  In fact, reports last week indicated that BellSouth and AT&T are now lobbying the U.S. Congress for the right to create a two-tiered Internet, where their own Internet services would be transmitted faster and more efficiently than those of their competitors.

These developments should send alarm bells to Internet companies, users, and regulators.  While prioritizing websites or applications may hold some economic promise, the lack of broadband competition and insufficient transparency surrounding these actions will rightly lead to growing calls for regulatory reform that grants legal protection for the principle of network neutrality.  


  1. Neil Macehiter says:

    Flushing the net down the tubes
    I agree whole-heartedly with your sentiments and echo the alarm bells you raise. Have you seen Doc Searls’ excellent article in a similar vein:

  2. Nathan Braun says:

    Founder of the dot love company

    I agree wholeheartedly!

    My new website/company also speaks in/directly (ie in an entirely different manner) to these concerns!


  3. Matt Livingstone says:

    Canadian Internet User
    When I first signed on for high speed cable (before Napster) it cost me $32.00 a month for unlimited access at 5MB down and 512K up.

    After Napster our ISP changed the plans to limit monthly traffic to 5GB for $35.00/month or unlimited (no cap) for $48.00.

    I do know for a fact that my ISP uses traffic shaping and is intentionally degrading the speeds for BitTorrent and similar applications.

    But without any sort of internet user protection legislation and absolutely no ISP regulation it seems the average internet user has no one to turn to for relief.

    I suggest that the Canadian government license ISPs much like they do radio stations, etc. and that all ISP must adhere to regulations with respect to privacy, transmission neutrality and Quality of Service.

    I rarely get the 5MB speeds my ISP continues to sell users and now that they are traffic shaping and starting to manipulate the pipe that I PAY FOR I think its time for some consumer protection regulations.

    The very foundation of the internet is neutrality and an open environment. Allowing the carriers to decide who gets what and how fast using a fee based system inorder to protect their own solutions is absolutely WRONG and should be stopped!

  4. Sal Scozzari says:

    Not simply common carriers?
    I’m waiting for the first verifiable evidence that any major ISP is actually looking at the packets travelling across their wires. Sooner or later, it will happen.

    And when it does, I will immediately get in touch with the RCMP to have the executives of said ISP arrested for transmitting child pornography.

  5. To do traffic shaping, the ISP doesn’t necessarily have to examine packet contents any deeper than is minimally necessary to route it.
    By simply examining the behaviour of the traffic, it can often be guessed what kind of traffic it is, without delving into the contents of the traffic. There are many companies that work in this area.

    Examination of a packet deeper than what is required to route it is not likely legal.

    There are some benefits to both users and ISPs if they are able to guess at packet contents, so that it can be routed most efficiently. But there are problems when the ISP wants to use these techniques to, for example, degrade certain traffic on its networks to benefit the ISP, and either harm its users, or attempt to socially re-engineer their behaviour. And there are conflicts of interest when it seeks to limit certain content so that it can more easily provide its competing content. That’s really bad 🙁 , and there ought to be laws against it.

  6. Yes!
    Why havent thise internet companies took more control of the security issues thaey have to face:

  7. TELUS Engineer
    A very interesting article. For the most part I think it is very true. I don’t know whether it was intentionally dumbed down for the general public, or if the author of this article (who holds a research chair in Internet Law) is fully unaware of the actually technology on which the Internet exists and operates.

    Packet Prioritization, Traffic Shaping and Sensorship are 3 completely different things, though the article makes them all out to be instruments of unfairness on the part of ISPs.

    Packet Prioritization is something built in fundamentally to IP technology. There are bit flags indicating the level of priority of each packet, so that real-time traffic (VoIP, Video) will be handled more quickly than connection oriented data (FTP, Podcasting). I am actually suprised that Shaw charges a premium for this service. It shows there technical wherewithal, that’s for sure.

    Traffic Shaping is actually necessary if you want the chef in the house to download their recipe without the teenager down the street monopolizing the co-ax in the neighbourhood. The mentioned case is Rogers, right? In all fairness, there does need to be a limitation to ensure QoS for other users. That limitation should not be zero, unless it is called upon by the government.

    Sensorship is a very interesting one. I am a TELUS manager, and I was crossing the picket line during the strike. The VFC web site showed information including faces and names of people like me who crossed the line. In and medium, that is privacy infringement. I appreciated the sensorship, and so would anybody on this side of the coin.

    What I am trying to get at is that I don’t appreciate the misrepresentation of how everything is one-sided and the already mysterious Internet was being made out to be an instrument of unfairness. What I do agree with, absolutely, is the need for regulation and increased transparency. In each of these cases, while the ISPs had the right to take the said actions, there should be government over how such actions are taken, and without question, that should primarily in the form of regulation.

    The CRTC is about 10 years behind where they should be. Truth be told, they need education and reformation. One example of their naivity is that they would impose regulation on VoIP if the carrier has ILEC (Incumbent Local Exchange Carrier) status, but not if they are merely an ISP. So, Bell and TELUS would be burdened with regulation while Shaw and Rogers enjoy a fully open voice market. This is only one example, and there are far more serious problems, mostly involving Internet. The CRTC needs to be empowered to regulate the single most significant communication channel within Canada, and beyond that, Internet law needs to be formed very quickly in Canada. I hope that Mr. Geist has a lot of developing law to keep track of, and even contribute to in the Canadian system.