Net Neutrality Isn’t Totally Lost: Here’s How the FCC Can Test for ISP Bad Behavior

Earlier this month, a court struck down the bulk of the FCC’s network neutrality rules, removing a significant restriction on the ability of companies like Verizon or AT&T to slow down or block your connection to any website for any reason.

But the FCC’s network neutrality rules were not entirely rejected. The agency retained the authority to require Internet service providers to disclose how they control traffic that travels over their networks. With only one arrow left in its quiver—the power to require transparency—the FCC is going to have to aim it very well.

In recent years we’ve seen dozens of Internet providers in the United States and around the world act in non-neutral ways. In 2007, for example, Comcast was caught interfering with its customers’ use of Bit Torrent and other peer-to-peer file sharing. We witnessed a major Canadian ISP slow down all encrypted file transfers and American ISPs inject ads onto other organizations’ websites and hijack search engine traffic to try to make money from affiliate marketing schemes. It often takes months for people to notice this misbehavior and years for it to be confirmed and documented properly—if ever.

As of now, it appears that the FCC has mostly analyzed ISP practices in response to consumer complaints. This is a poor model because even knowledgeable users will only spot ISP discrimination if it is especially blatant. What’s more, most Internet users will simply use another application or visit another website in lieu of the slower one. What consumers definitely don’t do is call the FCC when a website seems slow or some program isn’t working right.

Meaningful transparency of network operations is not the same as giving consumers a route to complain when there’s a problem. Meaningful transparency requires active testing for disruptions on networks so that the FCC and consumers can amass technical evidence of ISP throttling or content blocking. Transparency—when properly implemented—is a powerful tool. And when evidence is collected, it can be used in court, in campaigns, and to mount pressure on companies and elected officials alike. It’s not that the FCC should monitor Internet traffic, which could easily collapse into an excuse to spy on users, but rather the FCC should regularly test to see how ISPs block, interfere, or throttle traffic that passes over their network.

ISPs will likely push for dumbed-down transparency reporting that is easy for the public to understand. But public watchdogs and the FCC need data that details exactly how ISPs manage their networks with respect to different content, protocols, origins, and destinations. Those specific details will improve the FCC’s detection of ISP interference that inhibits competition and innovation or, violates our freedom of speech, for example.

What this means is that the FCC should require ISPs to answer specific questions in their transparency reporting about any differential treatment of network traffic. ISPs should not be allowed to escape with vague, hand-waving reassurances that they support the “open Internet.” The FCC should require them to disclose specifics about the asymmetrical and potentially discriminatory architectures of their networks and network management practices. Put differently, we need to know exactly which aspects of Internet traffic are being meddled with and by what criteria—whether it’s content in transit, the origin and destination of data, port numbers, or protocols (the languages in which computers communicate). We need details about any algorithms used for traffic shaping (when an ISP slows some or all connections), prioritization (when an ISP prioritizes some traffic over other traffic), ad injection, and packet forgery and modification.  

In light of the court’s ruling, a corporation like AT&T can theoretically charge website operators like Google, Wikipedia, Spotify, or Netflix large sums of money to install a server in AT&T’s facilities in order to provide their customers faster access. The problem is that new Internet companies that can’t afford high network-prioritization prices will be unable to compete with established companies that have paid for the fast lane. That could pose a serious threat to the innovative fabric of the Internet—so disclosure requirements should also include the amount ISPs charge for priority network speeds.

These concepts are not foreign to the FCC. In 2011, the agency held a contest for mobile app developers to design network measurement tools to collect information about ISP traffic discrimination. This was a great start, and the FCC should hold more competitions to encourage the development of innovative network testing software to detect non-neutral practices. But the commission should take it one step further: fund research to build open-source tools to enable proper network transparency.

Without these measures, there will be no way for customers to know if their Internet experience is being channeled to particular companies, and there will be no way for policymakers to know if ISPs are out of line.

Future Tense is a partnership of Slate, New America, and Arizona State University.