The Comcast case was the first to ignite a broad discussion about Net Neutrality and the setup for FCC’s Open Internet Order which was released two years later.

The Open Internet Order prescribes that all traffic on the Internet should be treated equally, but allows ISPs to slow down or block traffic if it’s considered to be “reasonable network management.” For many Net Neutrality activists the rules didn’t go far enough, but it was something.

Today the Open Internet Order was decimated by the DC Circuit Court of Appeals, which ruled against the commission. The Court states that the FCC does not have the power to regulate how ISPs manage traffic on their networks.

“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.”

The Court didn’t throw out the entire Open Internet Order, and clarified that ISPs still have to disclose what kind of actions they take when “managing” traffic on their networks.

The ruling leaves the FCC with two options. It could appeal at the Supreme Court or it could ask Congress to give it the powers it wants and/or needs. For now, however, ISPs are free to discriminate between different traffic types, and block certain sites or content.

This could mean, for example, that certain types of traffic get priority over others, or that certain sites or services could be downgraded or blocked.

The reasoning of the D.C. Court of Appeals is similar to an order it issued in 2010. At the time it overruled the FCC’s decision to sanction Comcast for unfair treatment of BitTorrent users, arguing that the commission doesn’t have the authority to enforce net neutrality.

In a response to the bad news FCC Chairman Thomas Wheeler said that his organization is considering an appeal.

“We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans,” Wheeler noted.

Many Open Internet advocates are unhappy with today’s decision as well.

“We’re disappointed that the court came to this conclusion. Its ruling means that Internet users will be pitted against the biggest phone and cable companies — and in the absence of any oversight, these companies can now block and discriminate against their customers’ communications at will,” Free Press President and CEO Craig Aaron notes.

“The compromised Open Internet Order struck down today left much to be desired, but it was a step toward maintaining Internet users’ freedom to go where they wanted, when they wanted, and communicate freely online,” he adds.

For BitTorrent users specifically not much is expected to change in the short-term, not even for Comcast subscribers. The Internet provider told TorrentFreak that it will continue to comply with the FCC’s Open Internet Order for at least six more years.

“Comcast has consistently supported the Commission’s Open Internet Order as an appropriate balance of protection of consumer interests while not interfering with companies’ network management and engineering decisions,” a Comcast spokesperson said.

This promise to keep the Internet “neutral” was part of the NBCUniversal Transaction Order, which is valid until 2020.

“We remain comfortable with that commitment because we have not – and will not – block our customers’ ability to access lawful Internet content, applications, or services. Comcast’s customers want an open and vibrant Internet, and we are absolutely committed to deliver that experience,” the company added.

So no BitTorrent blocking for now from Comcast, although we have to note that throttling would still be an option as long as it’s part of standard network management procedure, or targeted at unauthorized transfers.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The suit comes after public interest groups, including Free Press, raised concerns over MetroPCS’ new 4G service plans that appear to allow subscribers unlimited access to certain applications like YouTube, but would block others including Netflix and Skype. MetroPCS has not yet responded to the groups’ allegations, indicating that it would do so by February 11.

Free Press Policy Counsel M. Chris Riley made the following statement:

“Instead of responding to the public outcry over its walled-garden practices by offering open Internet access services, MetroPCS has chosen to follow the lead of Verizon Wireless and sue the FCC to strike down the Commission’s weak, loophole-ridden rules. Like a thief caught red-handed, MetroPCS — rather than change its ways — is now trying to legalize stealing.

“What we’re seeing are the early signs of a full scale assault on the open Internet. MetroPCS hopes that by helping to vacate the rules in court, it will be able to continue with its anti-consumer, anti-competitive practices of blocking popular applications like Skype and Netflix unless its subscribers pay a steep ransom.”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Verizon is arguing that the F.C.C. exceeded its authority, and violated the company’s constitutional rights. Verizon filed its suit in the United States Court of Appeals for the District of Columbia Circuit, the same court that in April ruled that the F.C.C. had overstepped itself when it sanctioned Comcast in 2008 for blocking users of its broadband Internet service from BitTorrent, a file-sharing application.

More at the New York Times.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The whole Comcast debacle ignited a discussion about Net Neutrality and eventually led to the FCC’s national broadband plan which was released last month. Today, the Court of Appeals overruled FCC’s decision in the Comcast case, with three judges stating that the commission doesn’t have the authority to require ISPs to keep their network neutral.

After appealing FCC’s decision in favor of BitTorrent users, Comcast has finally got the verdict (pdf) it wanted. Although it seems unlikely that the ISP will pick up its old habit of preventing BitTorrent users to seed files, it could in theory do so.

The Court of Appeals ruling states that the FCC did not have the power to regulate ISPs network managing practices, which leaves the commission with two options. It could appeal at the Supreme Court, or it could ask Congress to give it the powers it wants and/or needs.

The latter option will pose potential problems for the likes of Comcast, with the FCC potentially asking not only for powers to deal with this particular case, but for greatly increased powers to regulate the entire sector.

For BitTorrent users on Comcast and other US Internet providers there are uncertain times ahead.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

All around the world, hundreds of larger and smaller ISPs are actively interfering with BitTorrent traffic, allegedly to keep their networks in good shape. Thus far, only Comcast has been punished for doing so.

In 2008 the FCC looked into Comcast’s BitTorrent blocking and concluded that the company’s network management practices were unfair because they specifically targeted BitTorrent, not any other protocols.

The FCC ordered Comcast to stop blocking BitTorrent transfers, and last year the communications commission decided to take up the task of ensuring that the Internet remains neutral. At least, that was the initial plan, the reality is less hopeful.

Although it was Comcast’s anti-BitTorrent measures that sparked the current Net Neutrality debate, the FCC’s current proposals are not going to stop ISPs from slowing down or even blocking BitTorrent traffic. In fact, if these rules are implemented, BitTorrent users will be worse off than three years ago.

In the 107 page proposal detailing the Net Neutrality regulation, the FCC says that all traffic on the Internet should be treated equally, but it allows ISPs to slow down or block traffic if it’s considered to be “reasonable network management”.

So the key issue is, what are reasonable network management practices and how may these affect BitTorrent traffic? Let’s take a look at what the FCC has to say about this.

Reasonable network management consists of reasonable practices employed by a provider of broadband Internet access service to [...] (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; [...] (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content.

In short, this means that ISPs have plenty of options to target BitTorrent traffic and keep the Net Neutral at the same time. Let’s take a closer look.

As the EFF has also pointed out, the latter two conditions (iii and iv) would make it perfectly reasonable to block BitTorrent traffic for the purpose of preventing piracy. The terminology is rather vague, but we expect that when the MPAA or RIAA produce a report stating that 95% of all BitTorrent traffic involves copyright violations, blocking BitTorrent may become perfectly reasonable.

And that’s just one of the many loopholes. There are also plenty of options for ISPs to target BitTorrent traffic without going for the piracy/copyright angle. In fact, congestion issues and quality-of-service concerns are even more viable and can be implemented to target BitTorrent traffic specifically, but indirectly.

Under the proposed plans, ISPs could simply manage their networks by slowing down connections that use “too many” TCP connections, one of the key characteristics of BitTorrent traffic. There are plenty of arbitrary rules that may look reasonable and neutral, but will specifically (not exclusively) hinder BitTorrent transfers to ease the strain on the network.

In fact, the Internet Engineering Task Force (IETF) which develops and promotes Internet standards is working on a proposal that might kill BitTorrent traffic if implemented. The proposed protocol will mark all packets which are expected to cause congestion as “negative packets,” which is likely to apply to and slow down most peer-to-peer traffic.

One way or another, the FCC’s Net Neutrality plan is no guarantee that BitTorrent will be able to download at full speeds. On the contrary, the plans might actually encourage ISPs to use Deep Packet Inspection technologies to check if the traffic of its subscribers is lawful, if it’s the last resort to slow down BitTorrent. We don’t want that to happen do we?

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Regardless, Comcast is not the only ISP that is throttling. As was revealed in the stats from Project Glasnost, Cox is also throttling heavily. So, while some are popping the champagne corks over this victory, others are still working hard to keep our ISP’s honest, and ensure that their customers are getting what they paid for.

The latest of these, is a project called Switzerland by the EFF. Still in very early alpha, it’s an attempt to not just detect sandvineing by an ISP, but other forms of throttling as well. Unlike Glasnost, which uses a central server and known torrent streams to detect activities from the ISP interfering, this will use a more decentralised method, where peers running Switzerland swap information about the packets they send to other Switzerland users, in encrypted data packets sent via a central server. In effect, it’s a checksum of torrent activity sent via a 3rd party. As Peter Eckersley, staff technologist for the EFF, and developer of Switzerland puts it “Alice and Bob are exchanging packets, they connect to a neutral server (Switzerland) to arbitrate between their different views of the packets”.

When asked why the EFF started this project, and why they believe a neutral network is important, he told TorrentFreak: “There were several reasons why we started the Test Your ISP project, and designed and built Switzerland. One reason was pragmatic: we were trying to run systematic tests of the interference that Comcast was deploying against P2P networks, and we decided that the only sensible way to do that was to build an automated sensor network. So we set about doing that.”

“The bigger picture, of course, is that without transparency the Internet won’t remain the amazing open and innovative thing that it has been,” Eckersley says. “And EFF’s mission is to make sure that the Internet stays open and innovative. We need to shine lights into the dark corners of the network, and make sure that ISPs aren’t setting themselves up in some control room and saying “protocol A okay, but protocol B doesn’t fit with our business plans, so let’s give it second-class treatment or stop it from working entirely.”

Some might worry that the client might open up people to being monitored by anti-p2p companies or other undesirables, using the system as another method of verification, but there is really no way around it. The simplest method to avoid that is, in Peters words, “avoid exchanging copyrighted files between Switzerland clients. The copyright risks are probably lower if you run your own Switzerland server, but it’s still going to keep logs.”

The question of what the FCC will do about these other ISPs and their traffic management is one to ponder. Our inquiries on this matter have been acknowledged, but not replied to at the time of publication.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Kevin Martin, FCC chairman told AP that Comcast’s BitTorrent throttling is “arbitrary”, and that the company had violated the principles of the Federal Communications Commission. Martin said that Comcast slows down BitTorrent users independent of the amount of traffic they use, and that the company failed to communicate their network management practices to their consumers.

Indeed, a recent study by the Max Planck Institute showed that the company had misinformed the FCC and their users. Comcast has always argued that BitTorrent upstream traffic was only blocked during periods of heavy network traffic, this turns out to be a lie, as the study showed that they blocked BitTorrent upstream traffic 24/7.

The FCC has announced that it will take appropriate action against Comcast, and the ISP will be ordered to stop interfering with BitTorrent traffic. Comcast has said before that it will invest in its network capacity and stop slowing down the traffic of their users, but these were all false promises.

Marvin Ammori, general counsel of Free Press who filed the complaint with the FCC is delighted with this outcome, and said in a response: “Nine months ago, Comcast was exposed for blocking free choice on the Internet. At every turn, Comcast has denied blocking, lied to the public and tried to avoid being held accountable. We have presented an open and shut case that Comcast broke the law.”

“The FCC now appears ready to take action on behalf of consumers. This is an historic test for whether the law will protect the open Internet. If the commission decisively rules against Comcast, it will be a remarkable victory for organized people over organized money,” Ammori added.

It is to be expected that – if the pipes are really congested – Comcast and other ISPs will have to step away from the all-you-can-eat plans they have been offering for years, now that people are actually using bandwidth they signed up for.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

“We at Vuze (Azureus) decided there was something important you can do to help elevate the debate,” says Jay Monahan, General Counsel at Azureus. “We created a simple software “plug-in” that works with your Vuze (Azureus) application to gather information about potential interference with your Internet traffic.”

The main purpose of the plugin is to gather factual data on which ISPs are throttling with BitTorrent, and to what extent. Already there is an ever growing list of bad ISPs available at the Azureus wiki, but the data from the plugin will make their case even stronger.

When the first ISPs started to throttle BitTorrent traffic, Azureus was one of the first BitTorrent clients to introduce a countermeasure, namely, protocol header encryption. However, this was only the beginning of an ongoing cat and mouse game between ISPs and BitTorrent client developers.

Unfortunately, BitTorrent encryption doesn’t work against the more aggressive, and ever evolving throttling applications. Even though there is a Comcast proof BitTorrent encryption in the making, it is always easier to use political means to stop ISPs from messing with our traffic in the first place. The plugin is listed at Azureus’ Sourceforge page if you want to help out.

For the paranoid BitTorrent users among us, Monahan guarantees that the data will be sent anonymously. “Be assured that sharing this data with us does not involve disclosure of any of your personally identifiable information. We will aggregate the data and may talk about it or disclose it publicly, but no data about any specific user will be disclosed as part of this effort.”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

According to Christian Solmecke, a lawyer defending file-sharers in Germany, the system typically operated like this: “Based on the data provided by Logistep and other P2P tracking enterprises, an offense is reported. The public prosecution service is obliged to investigate because a copyright infringement is a criminal offense in Germany.” This would then force an ISP to hand over the identity of an alleged file-sharer and they would be threatened to pay up – or else.

Not any more.

In what could be a landmark victory for file-sharers, the Federal Constitutional Court (FCC) in Germany has just issued a ruling. With it comes a new level of privacy to protect personal data and communications and, fortunately for file-sharers, this enhanced privacy is good news for them.

No longer will it be possible for media companies to force ISPs to give up the identities of its subscribers who they accuse of copyright infringement, which will undoubtedly be a huge relief to the ISPs too. After all, these are the ISPs biggest customers we’re talking about. For Germany at least, it seems like 3-strikes-and-you’re-out schemes, could’ve been ruled out.

In future, it will only be possible to get an identity behind an IP address if dealing with a ‘heavy’ crime, such as terrorism, murder, child pornography or kidnapping.

A German law student told TorrentFreak: “At the moment, I cant imagine any realistic way file-sharers can be caught. It’s possible lobby groups will try to make file-sharing count as a ‘heavy crime’, but I doubt they will have much luck. The German criminal justice judicial system is quite overextended, and the people are overworked. Public prosecutors and judges alike were quite pissed off that they had to invest time in the many file-sharing cases, which were obviously irrelevant in a criminal law sense. The public interest to put file sharers in prison is simply not there.”

This ruling will stand for 6 months, after that, the main decision will be made final. The common consensus among legal commentators is that the Federal Constitutional Court is extremely unlikely to change their decision on this matter.

The privacy issue is becoming a hot topic in the file-sharing world. Just this week, anti-piracy company Logistep was told that it had been acting illegally by spying on Italian file-sharers.

‘The European Right to Pirate in Private’ – who would’ve thought it?

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The second half of today’s hearing (pdf link) started with a number of network and technological experts telling us about the Internet, its history, and its makeup. Of main contention was the line between acceptable, and unacceptable traffic management.

Wise things were said, and the panelists made some good points about the unfairness of the traffic management tools that Comcast uses. There was emphasis on the TCP reset, which means that a few seconds after you connect to someone in a BitTorrent swarm, a peer reset message (RST flag) is sent by Comcast and the upload immediately stops.

Richard Bennett (co-inventor of the twisted-pair system for ethernet, and its protocol, 1BASE5) targeted those opposed to any sort of traffic management in his opening statement saying, “if we can’t control network management, we’ll have to shut down the internet”. David Clark, of the MIT computer science lab, opened by saying that ISPs can either see enemies, or they can see partners, and suggesting that right now, they see the former. He, like almost all the panelists, called the current usage of Sandvine technology ‘troubling’, and said that the user should pick the Quality of Service (QoS) level, not an ISP.

Daniel Weitzner, Director of the Massachusetts Institute of Technology Decentralized Information Group summed up bad traffic management with: “Maybe it’s a bit like the old adage about pornography ‘I know it when I see it’. In this case I know what Comcast is doing is in the camp of unreasonable. These are techniques that hackers would use to deny service to any application on the web, very similar in that regard. It might be interesting to hold a panel of security experts to talk about those kind of mechanisms, I’m certainly not one. But, forging data on the internet is probably outside of the realm of reasonable, and any standards body would deem it to be.”

However, one of the most succinct criticisms of Comcast’s actions came from Prof. David Reed, of MIT’s Media Lab, who suggested that any ISP that didn’t follow the standard solutions evolved over the last 30 years should not advertise themselves as an Internet provider, but instead as a company “offering selective access to portions of the net only”, a description many of Comcast’s customers will probably agree with.

The FCC questioner continued the panel discussion, and pointed out that one of the problems might be that there is no actual data on how busy the network was, something that, from his point of view, would be helpful in determining whether the TCP resets are a unreasonable form of network management or not.

One of the panelists (sorry, they all sound the same) immediately replied to this by pointing out that congestion was not important. He compared the TCP reset to a conversation between two people where a third party – who pretends to be one of the persons engaged in the conversation – says “Stop, this conversation is over”. He added: “I find it uncomfortable that someone in the middle is creating a message to you that appears to come from me, I have a lot of trouble with that.”

At the beginning of the hearing FCC chairman Kevin Martin said that they were willing to step in if needed. Let’s hope they will. Feel free to file a comment if you want to let the FCC know what you think of Comcast’s haxxor skills. A video of the hearing will be available within two days.

Stay tuned.

Update: Apparently Comcast has paid people to attend the hearing to keep concerned citizens out.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.