Paul Ohm, The Thin Line Between Reasonable Network Management and Illegal Wiretapping

Paul Ohm, The Thin Line Between Reasonable Network Management and Illegal Wiretapping

Comment by: Paul Ohm

PLSC 2008

Workshop draft abstract:

AT&T made headlines when it publicly discussed aggressive plans to monitor subscriber communications on an unprecedented scale and for novel purposes.  Comcast has examined packets on its network, in order to identify and throttle Bittorrent users.  Charter Communications informed thousands of its customers that it would track the websites they visited in order to serve them targeted ads.  These may be precursors to a storm of unprecedented, invasive Internet Service Provider (ISP) monitoring of the Internet.

Many consumer advocates have characterized these techniques as violations of network neutrality—the principle that providers should treat all network traffic the same.  Trumpeting these examples, these advocates have urged Congress to mandate network neutrality.
Until now, nobody has recognized that we already enjoy mandatory network neutrality.  Two forces—one technological, one legal—deliver this mandate.  First, up until the recent past, the best network monitoring devices could not keep up with the fastest network connections; inferior monitoring tools have prevented providers from engaging in aggressive network traffic discrimination.  These technological limitations have forced an implicit network neutrality mandate.

Second, legislatures have passed expansive wiretapping laws.  Under these provisions, so-called network management techniques like those described above may be illegal.  By limiting network management, the wiretapping laws mandate a sort of network neutrality.  Historically, however, few Internet Service Providers (ISPs) have had to defend themselves against wiretapping charges, but as the implicit, technological network neutrality mandate fades and as ISPs respond by expanding their monitoring programs, the wiretapping laws will soon emerge as significant constraints on ISP activities.

Network neutrality has been debated for years and nearly to death, but the recognition that we already have mandatory network neutrality inverts the debate.  ISPs are unable to do some things with their networks, unless and until they can convince Congress and state legislatures to change the wiretapping laws.  More importantly, focusing on the wiretap laws freshens the debate, which has always been mostly about innovation, by injecting questions of privacy, surveillance, and freedom.