June 19, 2018

New Jersey Takes Up Net Neutrality: A Summary, and My Experiences as a Witness

On Monday afternoon, I testified before the New Jersey State Assembly Committee on Science, Technology, and Innovation, which is chaired by Assemblyman Andrew Zwicker, who also happens to represent Princeton’s district.

On the committee agenda were three bills related to net neutrality.

Let’s quickly review the recent events. In December 2017, the Federal Communications Commission (FCC) recently rolled back the now-famous 2015 Open Internet Order, which required Internet service providers (ISPs) to abide by several so-called “bright line” rules, which can be summarized as (1) no blocking lawful Internet traffic; (2) no throttling or degrading the performance of lawful Internet traffic; (3) no paid prioritization of one type of traffic over another; (4) transparency about network management practices that may affect the forwarding of traffic.  In addition to these rules, the FCC order also re-classified Internet service as a “Title II” telecommunications service—placing it under the jurisdiction of the FCC’s rulemaking authority—overturning the previous “Title I” information services classification that ISPs previously enjoyed.

The distinction of Title I vs. Title II classification is nuanced and complicated, as I’ve previously discussed. Re-classification of ISPs as a Title II service certainly comes with a host of complicated regulatory strings attached.  It also places the ISPs in a different regulatory regime than the content providers (e.g., Google, Facebook, Amazon, Netflix).

The rollback of the Open Internet Order reverted not only the ISPs’ classification of Title II service, but also the four “bright line rules”. In response, many states have recently been considering and enacting their own net neutrality legislation, including Washington, Oregon, California, and now New Jersey. Generally speaking, these state laws are far less complicated than the original FCC order. They typically involve re-instating the FCC’s bright-line rules, but entirely avoid the question of Title II classification.

On Monday, the New Jersey State Assembly considered three bills relating to net neutrality. Essentially, all three bills amount to providing financial and other incentives to ISPs to abide by the bright line rules.  The bills require ISPs to follow the bright line rules as a condition for:

  1.  securing any contract with the state government (which can often be a significant revenue source);
  2. gaining access to utility poles (which is necessary for deploying infrastructure);
  3. municipal consent (which is required to occupy a city’s right-of-way).

I testified at the hearing, and I also submitted written testimony, which you can read here. This was my first experience testifying before a legislative committee; it was an interesting and rewarding experience.  Below, I’ll briefly summarize the hearing and my testimony (particularly in the context of the other testifying witnesses), as well as my experience as a testifying witness (complete with some lessons learned).

My Testimony

Before I wrote my testimony, I thought hard about what a computer scientist with my expertise could bring to the table as a testifying expert. I focused my testimony on three points:

  • No blocking and no throttling are technically simple to implement. One of the arguments that those opposed to the legislation are making is that different state laws on blocking and throttling could become exceedingly difficult to implement, particularly if each state has its own laws. In short, the argument is that state laws could create a complex regulatory “patchwork” that is burdensome to implement. If we were considering a version of the several-hundred-page FCC’s Open Internet Order in each state, I might tend to agree. But, the New Jersey laws are simple and concise: each law is only a couple of pages. The laws basically say “don’t block or throttle lawful content”. There are clear carve-outs for illegal traffic, attack traffic, and so forth. My comments essentially focused on the simplicity of implementation, and that we need not fear a patchwork of laws if the default is a simple rule that simply prevents blocking or throttling. In my oral testimony, I added (mostly for color) that the Internet, by the way, is already a patchwork of tens of thousands of independently operated networks across hundreds of countries, and that our protocols support carrying Internet traffic over a variety of physical media, from optical networks to wireless networks to carrier pigeon. I also took the opportunity to make the point that, by the way, ISPs are in a relative sense, pretty good actors in this space right now, in contrast to other content providers who have regularly blocked access to content either for anti-competitive reasons, or as a condition for doing business in certain countries.
  • Prioritization can be useful for certain types of traffic, but it is distinct from paid prioritization. Some ISPs have been making arguments recently that prohibiting paid prioritization would prohibit (among other things) the deployment of high-priority emergency services over the Internet. Of course, anyone who has taking an undergraduate networking course will have learned about prioritization (e.g., Weighted Fair Queueing), as well as how prioritization (and even shaping) can improve application performance, by ensuring that interactive, delay-sensitive applications such as gaming are not queued behind lower priority bulk transfers, such as a cloud backup. Yet, prioritization of certain classes of applications over others is a different matter from paid prioritization, whereby one customer might pay an ISP for higher prioritization over competing traffic. I discussed the differences at length.I also talked about how prioritization and paid prioritization could more generally: it’s not just about what a router does, but about who has access to what infrastructure. The bills address “prioritization” merely as a packet scheduling exercise—a router services one queue of packets at a faster rate than another queue. But, there are plenty of other ways that some content can be made to “go faster” than others; one such example is the deployment of content across a so-called Content Delivery Network (CDN)—a distributed network of content caches that are close to users. Some application or content providers may enjoy unfair advantage (“priority”) over others merely by virtue of the infrastructure it has access to. Today’s laws—neither the repealed FCC rules nor the state law—do not say anything about this type of prioritization, which could be applied in anti-competitive ways.Finally, I talked about how prioritization is a bit of a red herring as long as there is spare capacity. Again, in an undergraduate networking course, we talk about resource allocation concepts such as max-min fairness, where every sender gets the capacity they require as long as capacity exceeds total demand. Thus, it is also important to ensure that ISPs and application providers continue to add capacity, both in their networks and at the interconnects between their networks.
  • Transparency is important for consumers, but figuring out exactly what ISPs should expose, in a way that’s meaningful to consumers and not unduly burdensome, is technically challenging. Consumers have a right to know about the service that they are purchasing from their ISP, as well as whether (and how well) that service can support different applications. Disclosure of network management practices and performance certainly makes good sense on the surface, but here the devil is in the details. An ISP could be very specific in disclosure. It could say, for example, that it has deployed a token bucket filter of a certain size, fill rate, and drain rate and detail the places in its network where such mechanisms are deployed. This would constitute a disclosure of a network management practice, but it would be meaningless for consumers. On the other hand, other disclosures might be so vague as to be meaningless; a statement from the ISP that says they might throttle certain types of high volume traffic a times of high demand might not be meaningful in helping a consumer figure out how certain applications might perform. In this sense, paragraph 226 of the Restoring Internet Freedom Order, which talks about consumers’ needs to understand how the network is delivering service for the applications that they care about is spot on. There’s only one problem with that provision: Technically, ISPs would have a hard time doing this without direct access to the client or server side of an application. In short: Transparency is challenging. To be continued.

The Hearing and Vote

The hearing itself was a interesting. There were several testifying witnesses opposing the bills: Jon Leibowitz, from Davis Polk (retained by Internet Service Providers); and a representative from US Telecom. The arguments against the bills were primarily legal and business-oriented. Essentially, the legal argument against the bills is that the states should leave this problem to the federal government. The arguments are (roughly) as follows: (1) The Restoring Internet Freedom Order prevents state pre-emption; (2) The Federal Trade Commission has this well-in-hand, now that ISPs are back in Title I territory (and as former commissioner, Leibowitz would know well the types of authority that the FTC has to bring such cases, as well as many cases they have brought against Google, Facebook, and others); (3) The state laws will create a patchwork of laws and introduce regulatory uncertainty, making it difficult for the ISPs to operate efficiently, and creating uncertainty for future investment.

The arguments in opposition to the bill are orthogonal to the points I made in my own testimony. In particular, I disclaimed any legal expertise on pre-emption. I was, however, able to comment on whether I thought the second and third arguments held water from a technical perspective. While the second point about the FTC authority is mostly a legal question, I understood enough about the FTC act, and the circumstances under which they bring cases, to comment on whether technically the bills in question give consumers more power than they might otherwise have with just the FTC rules in place. My perspective was that they do, although this point is a really interesting case of the muddy distinction between technology and the law: To really dive into arguments around this point, it helps to know a bit about both technology and the law. I was able to comment on the “patchwork” assertion from a technical perspective, as I discussed above.

At the end of the hearing, there was a committee vote on all three bills. It was interesting to see both the voting process, and the commentary that each committee member made with their votes.  In the end, there were two abstentions, with the rest in favor. The members who abstained did so largely on the legal question concerning state pre-emption—perhaps foreshadowing the next round of legal battles.

Lessons Learned

Through this experience, I once again saw the value in having technologists at the table in these forums, where the laws that govern the future of the Internet are being written and decided on. I learned a couple of important lessons, which I’ve briefly summarized below.

My job was to bring technical clarity, not to advocate policy. As a witness, technically I am picking a side. And, in these settings, even when making technical points, one is typically doing so to serve one side of a policy or legal argument. Naturally, given my arguments, I registered for a witness in favor of the legislation.

However, and importantly: that doesn’t mean my job was to advocate policy.  As a technologist, my role as a witness is to explain to the lawmakers technical concepts that can help them make better sense of the various arguments from others in the room. Additionally, I steered clear of rendering legal opinions, and where my comments did rely on legal frameworks, I made it clear that I was not an expert in those matters, but was speaking on technical points within the context of the laws, as I understood them.  Finally, when figuring out how to frame my testimony, I consulted many people: the lawmakers, my colleagues at Princeton, and even the ISPs themselves. In all cases, I asked these stakeholders about the topics I might focus on, as opposed to asking what, specifically I should say. I thought hard about what a computer scientist could bring to the discussion, as well as ensuring that what I said was technically accurate and correct.

A simple technical explanation is of utmost importance. In such a committee hearing, advocates and lobbyists abound (on both sides); technologists are rare. I suspect I was the only technologist in the room. Additionally, most of the people in the room have jobs to make arguments that serve a particular stakeholder.  In doing so, they may muddy the waters, either accidentally or intentionally. To advance their arguments, some people may even say things that are blatantly false (thankfully that didn’t happen on Monday, but I’ve seen it happen in similar forums). Perhaps surprisingly, such discourse can fly by completely unnoticed, because the people in the room—especially the decision-makers—don’t have as deep of an understanding of the technology as the technologists.  Technologists need to be in the room, to shed light and to call foul—and, importantly, to do so using accessible language and examples that non-technical policy-makers can understand.