Clear and Complete Disclosure, Without Loopholes, Is the Only ‘Reasonable’ Way

This is the fourth in a series of posts by Chris Riley, Free Press Policy Counsel, to summarize the primary policy recommendations made in recent comments submitted to the Federal Communications Commission in its open Internet proceeding. Today’s topic: disclosure.

Consumers have a right to know what is going on with their Internet access service. The FCC under both Democratic and Republican leadership has long held disclosure to be among the most important values to an open Internet. The agency has proposed making network operators disclose their interference with subscriber Internet use.

As Free Press points out in our filing with the FCC’s NPRM on open Internet rules, we support mandatory disclosure wholeheartedly, although it cannot take the place of nondiscrimination and other open Internet rules. Also, the specific language proposed by the FCC has a number of loopholes that, in practice, could render disclosure meaningless and leave consumers subject to hidden and harmful network controls.

We’ve already seen the harms of secret Internet interference. For years, Comcast blocked the use of peer-to-peer services. Comcast used a DPI-based system that made its blocking look like an ordinary network action, so that subscribers couldn’t tell what was happening. It took months of expert analysis, and even then, the public (and the commission) could only determine the broad details and not specific triggers (which remained unknown until Comcast made its FCC-mandated disclosure).

The current state of voluntary disclosure of network interference is simply nonexistent. Comcast disclosed its “new system” when the FCC ordered it to, but the company has said that it can change its system any time it wants, without telling anyone. And no other provider has even given that much information.

Full disclosure

Internet subscribers pay a substantial amount of money for service every month, and in return, they are presented with vague and overbroad “terms of service” in which network operators say that they will block any Internet communications they disagree with, and disconnect users for behaving in any manner they find objectionable. In the FCC’s “truth in labeling” proceeding, we’ve asked the agency to fix this – to require network operators to provide consumers with meaningful and accurate information about the real restrictions and limitations on their service. But in addition to these changes, network operators should meet a higher standard of disclosure when they interfere with subscribers’ use of an open Internet access service.

As in the Comcast case, harm that is not obvious is still harm. Internet users may experience problems without knowing they are caused by network operator interference – especially when some other Internet uses work fine. With the ISPs quietly interfering behind the scenes, users will blame the application or Web site they’re using, rather than the real culprit, and may choose to stop visiting that site or using that application. Innovation will pay the ultimate price.

In response, the FCC has proposed a weak and ineffective standard. The FCC limited the required disclosures only to information that is “reasonably required” by Internet users “to enjoy the protections” of the open Internet rules. Furthermore, the FCC’s proposed disclosure standard is “subject to reasonable network management.” This standard is too vague to protect Internet users and to secure the open Internet.

Closing loopholes

The first loophole is the idea that disclosure could be “subject to reasonable network management” and that its purpose is “to enjoy the protections” of the open Internet rules. Both of these phrases imply that any network management practice that is “reasonable” need not be disclosed. If a network management practice is reasonable, then Internet users would be subject to it, so its disclosure would not come under the “protections” of the rules and may not be required under a “reasonable” exception. This would be an absurd result. It would require disclosure only where the disclosed activity is, in fact, illegal. The FCC must close this loophole by eliminating both of these qualifiers.

The second loophole, although not as severe, is the idea that ISPs need to disclose only information “reasonably required” by Internet users. This gives far too much discretion to network operators, which have incentives to restrict the awareness of users and competing content and application developers. Empowering network operators, which alone have information about network interference, to determine what of that information can and cannot be disclosed does not fix the asymmetries. The FCC seems concerned that disclosure obligations should be “minimally invasive” – but any network company with decent engineers will have detailed information at its fingertips on the network interference at issue, and likely will have plain language characterizations of the practices already written, for use in other business divisions such as customer support and management. It’s not invasive to require a company to turn over information it already possesses, or to make minor revisions to existing information to make it suitable for public dissemination.

The right solution

The FCC’s approach to disclosure seems misguided. It searches for a magic level of detail in disclosure that will satisfy all needs. Such an approach is utterly unworkable – any disclosure that a substantial population of Internet users will readily understand will fail to provide the details needed by a competing content or application provider (and by high-level users) to make the most effective use of the Internet access service. The right solution, as we propose, is a two-level disclosure.

The FCC should require a high-level disclosure of basic information about actual network interference that is prominent on Web sites and clearly available at the time of service inquiry and on bills.. The FCC should also require a more detailed level of disclosure to any interested third party – not merely a content or applications provider – containing detailed information on trigger thresholds and specific methods of interference. This information should be provided at the time an Internet user signs up for service, and should always be available and up-to-date on the Internet access provider’s Web site.

As part of its open Internet rules, the FCC should require clear, complete and detailed disclosure of all network interference, without any loopholes. Internet users deserve nothing less.

People + Policy

= Positive Change for the Public Good

people + policy = Positive Change for the Public Good