Re Verizon Wireless confirms it throttled Netflix streams as part of traffic optimization trial

["Dave Farber" <farber () gmail com>]

> Begin forwarded message:
>
> From: Brett Glass <brett () lariat net>
> Subject: Re: [IP] Re Verizon Wireless confirms it throttled Netflix streams as part of traffic optimization trial
> Date: July 22, 2017 at 2:51:18 PM EDT
> To: Fred Wilf <fred () wilftek com>, "David J. Farber" <dave () farber net>, Gordon Jacobson <gaj () portman com>
> Cc: ip <ip () listbox com>
>
> Everyone:
>
> Fred's explanation of 47 USC 230(c) is correct. However, in this case, the key provisions are in (b) and (f). 47 USC 
> 230(b) states that the policy of the United States is to leave the Net unregulated. This precludes "Chevron 
> deference" (the courts' practice of deferring to an agency when a statute is ambiguous) by clearly stating 
> Congressional intent. (In USTA v. FCC, two DC Circuit judges who had egregious conflicts of interest -- they were 
> potential SCOTUS nominees and thus had a vested interest in pleasing the White House -- ignored this, which is why 
> the case is being appealed to the Supreme Court. The deadline for the certitorari petition -- the request for the 
> court to review the case -- has just been extended to the end of September.)
>
> 47 USC 230(f) reinforces the policy statement in (b) by explicitly classifying Internet access in statute as a "data 
> service," which means that it cannot be reclassified as being subject to regulation under Title II of the statute -- 
> the portion originally crafted to regulate the Bell System monopoly. The conflicted judges again ignored this 
> explicit classification.
>
> Should the FCC's Title II regulations stand, the "major carriers" mentioned by Gordon are unlikely to see new 
> competition, and existing competitors (including my own ISP) will be unable to attract investors to expand their 
> operations. In fact, they may sell out or fold their tents due to increasingly burdensome regulation. This will do 
> severe harm to consumers. The FCC's regulation of the Net will also encourage other nations to regulate the Internet 
> in what they claim to be the "public interest," censoring it and blocking services as Turkey and Egypt have recently 
> done. 
>
> We can only hope that the Supreme Court will set things right via this case.
>
> --Brett Glass
>
> At 09:40 AM 7/22/2017, Fred Wilf wrote:
>  
> > Dave, Gordon, Brett, and All,
> >
> > Brett referenced the Communications Decency Act, 47 USC Sec. 230 ("CDA").
> >
> > > > > Brett quotes 47 USC 230(b) and (f), which he says makes "Regulation of the Net" clearly illegal.
> > >
> > > > > 47 USC 230(b) and (f) may be found at:
> > >
> > > > > Â https://www.law.cornell.edu/uscode/text/47/230
> > >
> > >  <https://www.law.cornell.edu/uscode/text/47/230>>> Would one of the IP list's Legal Eagle's like to explain how 
> > > one could draw that conclusion from its text?
> > ​The CDA is not about regulation of the net.  It's about treating ISPs, website owners and other online providers 
> > of third party content by giving them a safe harbor.
> >
> > The key provisions are in subsection (c):
> >
> > ​23(c)
> > (1)Treatment of publisher or speaker
> >
> > No provider or user of an interactive computer service shall be treated as the publisher or speaker of any 
> > information provided by another information content provider.
> >  <>​230(c)
> > (2)Civil liabilityNo provider or user of an interactive computer service shall be held liable on account of—
> >  <>​230(c)(2)
> > (A)
> > any action voluntarily taken in good faith to restrict access to or availability of material that the provider or 
> > user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, 
> > whether or not such material is constitutionally protected; or
> >  <>230(c)(2)(B)
> > any action taken to enable or make available to information content providers or others the technical means to 
> > restrict access to material described in paragraph (1).
> > ​
> >
> >
> > ​For those who may remember some decades ago, there were a number of lawsuits against ISPs and website owners 
> > alleging that they were liable for the defamatory comments of their users.  Prodigy lost a case against a notorious 
> > brokerage house when the broker claimed that anonymous user statements on the Prodigy online service defamed the 
> > broker.  Prodigy didn't help itself from a legal standpoint in that it claimed to have technology in place to 
> > monitor its content. The judge ruled that Prodigy was liable.  The parties later settled and asked the judge to 
> > withdraw his opinion.  To his credit, the judge refused to withdraw his opinion on the grounds that whether it was 
> > right or wrong, his opinion was one of the first opinions in this area of law.  
> > SeeÂhttps://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prodigy_Services_Co 
> > <https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prodigy_Services_Co> . Â 
> > andÂhttp://www.dmlp.org/threats/stratton-oakmont-v-prodigy <http://www.dmlp.org/threats/stratton-oakmont-v-prodigy> 
> > .  Of course, the anonymous comments were true; Stratton Oakmont was a bad place, as depicted "The Wolf of Wall 
> > Street".
> >
> > After the CDA was passed, it proved effective to provide a safe harbor for online services against all sorts of 
> > third party bad behavior. The approach of the CDA is similar to the safe harbor afforded publishers, who are 
> > potentially responsible for materials they create, but not responsible for third party materials they republish.
> >
> > A few cases to that effect:
> >
> > Zeran v. AOL. Â https://www.eff.org/files/zeran-v-aol.pdf <https://www.eff.org/files/zeran-v-aol.pdf>
> >
> > Blumenthal v. Drudge. Â https://epic.org/free_speech/blumenthal_v_drudge.html 
> > <https://epic.org/free_speech/blumenthal_v_drudge.html>
> >
> > Gentry v. eBay: Â https://www.eff.org/issues/cda230/cases/gentry-v-ebay-inc 
> > <https://www.eff.org/issues/cda230/cases/gentry-v-ebay-inc>
> >
> > One example where the CDA did not protect an online service is the Roommates.com case, where the online service 
> > categorized potential roommates as part of its search engine. Â 
> > http://caselaw.findlaw.com/us-9th-circuit/1592538.html <http://caselaw.findlaw.com/us-9th-circuit/1592538.html>
> >
> > The EFF maintains a web page regarding Section 230 at https://www.eff.org/issues/cda230 
> > <https://www.eff.org/issues/cda230> .
> >
> > ​Thank you,
> >
> > Fred​
> >
> > _____________________________________________
> > Frederic M. Wilf, Managing Partner
> > fred () wilftek com <mailto:fred () wilftek com>Â  | Â 215 205 0059
> >
> > ®
> > Technology and Intellectual Property Law
> > Â Â 
> > Wilftek LLC Â | Â wilftek.com <http://wilftek.com/>Â Â 
> > PO Box 71, Worcester, PA 19490-0071, USA
> > _____________________________________________
> >
> >
> >
> > On Sat, Jul 22, 2017 at 9:39 AM, Dave Farber <farber () gmail com <mailto:farber () gmail com>> wrote:
> >
> >
> >
> > Begin forwarded message:
> >
> > > From: Gordon Jacobson <gaj () portman com <mailto:gaj () portman com>>
> > > Date: July 22, 2017 at 9:35:03 AM EDT
> > > To: dave () farber net <mailto:dave () farber net>
> > > Subject: Re: [IP] Re Verizon Wireless confirms it throttled Netflix streams as part of traffic optimization trial
> > >
> > > I am really not a fan of the Government having any control or say over the Internet and at the same time, I am not 
> > > comfortable with the the major Carriers, Telcos and Cable Cos dominating any part of the marketplace for Internet 
> > > Services.
> > >
> > > That being said, absent Congress actually telling everyone to keep their bloody great paws off of the Internet (and 
> > > I really do not see that as likely to happen anytime soon), how else can we prevent total domination of the space 
> > > by a relative handful of monopolists?
> > >
> > > Brett (and providers like him) are NOT the target of the public's ire. The majors are the target, mainly because 
> > > they have the power and the lobbying clout to block the public interest - seemingly at will. 
> > >
> > > I am not saying they will or won't act against the public's interest, but if I am to judge by past actions (the 
> > > anti-competitive municipal and state legislation blocking local cities and towns across the country from building 
> > > their own municipal networks just as a simple example), I would not be making any wagers taking the side of the 
> > > likes of Verizon.
> > >
> > > Brett quotes 47 USC 230(b) and (f), which he says makes "Regulation of the Net" clearly illegal.
> > >
> > > 47 USC 230(b) and (f) may be found at:
> > >
> > > https://www.law.cornell.edu/uscode/text/47/230
> > >
> > >  <https://www.law.cornell.edu/uscode/text/47/230>
> > > Would one of the IP list's Legal Eagle's like to explain how one could draw that conclusion from its text?
> > >
> > > --Gordon Jacobson
> > >
> > >
> > > At 09:49 PM 7/21/2017, you wrote:
> > >
> > >
> > > > Begin forwarded message:
> > > >
> > > > > From: Brett Glass <brett () lariat net <mailto:brett () lariat net>>
> > > > > Date: July 21, 2017 at 10:42:19 PM EDT
> > > > > To: dave () farber net <mailto:dave () farber net>
> > > > > Subject: Re: [IP] Verizon Wireless confirms it throttled Netflix streams as part of traffic optimization trial
> > > > >
> > > > > Dave, and everyone:
> > > > >
> > > > > Even an HD video stream -- much less one that exceeds the resolution of a mobile phone -- does not take 10 Mbps. 
> > > > > Thus, the fact that a "speed test" -- a site which does not in fact test capacity but instead conducts a denial 
> > > > > of service attack and reports the throughput when the connection fails as the "speed" -- indicates 10 Mbps does 
> > > > > not indicate a problem. In fact, it may well indicate that Verizon is doing good management of its network, 
> > > > > protecting it against DoS attacks while generously allowing more video bandwidth than any legitimate user would 
> > > > > consume.
> > > > >
> > > > > Of late, corporate interests pushing for illegal, harmful, innovation-killing regulation of the Internet have 
> > > > > been seizing upon any attempt by ISPs to manage their networks' resources as an attack on consumers. Exactly the 
> > > > > opposite is the case.... In fact, when my users recently found their connections saturated and nearly crippled by 
> > > > > overly aggressive Microsoft Windows updates, some actually asked me to rein this traffic in (which I did for 
> > > > > them). While Microsoft or some other edge provider may find it to be in its interests to monopolize an Internet 
> > > > > user's connection, the user may (and, usually will!) disagree. It's the ISP's job to give the user the best 
> > > > > possible experience, and I strive to do this.
> > > > >
> > > > > It's time to curb the hateful "fake news" and anti-ISP rhetoric. ISPs like myself sweat, work evenings and 
> > > > > weekends, and even risk life and limb to provide Internet users with good service. Regulation of the Net -- which 
> > > > > is clearly illegal under 47 USC 230(b) and (f) -- harms network performance, raises bills, deters investment, 
> > > > > slows deployment, and limits consumer choice by making it impossible for new market entrants to raise capital. 
> > > > > It's time to debunk the many false claims about so-called "network neutrality" regulations, exposing them as 
> > > > > inconsistent with the founding principles of the Internet and harmful to all but the large corporations that 
> > > > > lobby for them.
> > > > >
> > > > > --Brett Glass
> > > > >
> > > > > At 03:39 PM 7/21/2017, you wrote:
> > > > > Â 
> > > > >
> > > > >
> > > > >
> > > > > > Begin forwarded message:
> > > > > >
> > > > > > > From: the keyboard of geoff goodfellow <geoff () iconia com <mailto:geoff () iconia com>>
> > > > > > > Date: July 21, 2017 at 4:59:53 PM EDT
> > > > > > > To: Dave Farber <dave () farber net <mailto:dave () farber net>>, Dewayne Hendricks <dewayne () warpspeed com 
> > > > > > > <mailto:dewayne () warpspeed com> >
> > > > > > > Cc: ip <ip () listbox com <mailto:ip () listbox com>>, "Peter G. Neumann" <neumann () csl sri com 
> > > > > > > <mailto:neumann () csl sri com>>
> > > > > > > Subject: Verizon Wireless confirms it throttled Netflix streams as part of traffic optimization trial
> > > > > > >
> > > > > > >
> > > > > > >
> > > > > > > Verizon Wireless has been throttling video feeds from Netflix over the course of this week, with the carrier 
> > > > > > > claiming it is part of a temporary trial of system to optimize traffic from video streaming services without 
> > > > > > > impacting quality, though customer reports seem to suggest it is a bandwidth cap on Netflix content. 
> > > > > > >
> > > > > > > On Thursday, Reddit users were complaining 
> > > > > > > <https://www.reddit.com/r/verizon/comments/6ogu9s/netflix_throttle_megathread/?sort=new> about speed issues 
> > > > > > > when using Verizon to watch video on Netflix and YouTube, reports 
> > > > > > > <http://www.howardforums.com/showthread.php/1898889-Verizon-Is-Throttling-Netflix?p=16879969#post16879969> Ars 
> > > > > > > Technica. Some users were finding that they were limited to speeds of around 10 megabits per second when using 
> > > > > > > Netflix's Fast.com <http://fast.com/> speed testing tool, despite other speed testing sites reporting the same 
> > > > > > > connections as offering speeds multiple times faster. 
> > > > > > >
> > > > > > > The phenomena was also noted on the HowardForums, with user GusHerb94 noting that YouTube was running at 1,250 
> > > > > > > kilobytes per second according to its "stats for nerds" feature, which is approximately the same as 10 megabits 
> > > > > > > per second. When the user connected to YouTube via a VPN, the speed "tripled" compared to not using the VPN. 
> > > > > > >
> > > > > > > Another user responded noting their 1440p video stream was "throttled at a constant 9.59Mbps," adding that the 
> > > > > > > speed was so low "it wasn't even able to keep up and buffered a few times." 
> > > > > > >
> > > > > > > Verizon advised in a statement "We've been doing network testing over the past few days to optimize the 
> > > > > > > performance of video applications on our network. The testing should be completed shortly. The customer video 
> > > > > > > experience was not affected." 
> > > > > > >
> > > > > > > It could be said that Verizon's testing goes against general net neutrality principles, which typically require 
> > > > > > > Internet providers to treat all traffic equally, regardless of source and content, though Title II does permit 
> > > > > > > some exceptions to allow Verizon to manage its network traffic. Capping the speed of one or more specific 
> > > > > > > services could be seen as giving an advantage to another that doesn't have the same restrictions...
> > > > > > >
> > > > > > > [SNIP]
> > > > > > >
> > > > > > > http://appleinsider.com/articles/17/07/21/verizon-wireless-confirms-it-throttled-netflix-streams-as-part-of-traffic-optimization-trial
> > > > > > >  
> > > > > > > <http://appleinsider.com/articles/17/07/21/verizon-wireless-confirms-it-throttled-netflix-streams-as-part-of-traffic-optimization-trial>
> > > > > > >  
> > > > > > >
> > > > > > > -- 
> > > > > > > Geoff.Goodfellow () iconia com <mailto:Geoff.Goodfellow () iconia com>
> > > > > > > living as The Truth is True
> > > > > > > http://geoff.livejournal.com <http://geoff.livejournal.com/> Â Â 
> > > > > >
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