The net neutrality that never was: Bringing net neutrality up to speed

Lot of comments and writings has been made after the US Court of Appeals for the District of Columbia Circuit last week halted the FCC's "ban on traffic blocking and discrimination by Internet service providers because the FCC had not designated ISPs as common carriers" (*). Most of the writing has fallen into the camp that this more or less means that non-discrimination of Internet traffic and net neutrality for Internet traffic and parties is dead and that this signals the end of basic Internet traffic delivery freedoms. In the US. And seemingly most other places as well.

In the US, were most areas and cities are only served by one dominant service provider or telco, the situation in many ways are more dire than most other well-functioning markets, where there are multiple Internet access providers and access technologies to choose from, and one dominant access provider can't run amok in how basic access services are provisioned.  And, let's say, play favoritism with one's own services or content offerings.

That said, I think the basic Internet neutrality approach and arguments has been flawed from day one, or at least half of what net neutrality implicates.  To me, net neutrality could and does entail two things

1. Neutrality as to how network protocols, services, applications and devices are treated, i.e the same and without prejudice or helping hands of any sort
   
2. Neutrality as to how communicating parties are treated, i.e. basically how sender and receivers or peers in a networking session are treated, without prejudice and equally.  For instance
• Broadband Internet access customers treated the same for the same service or session
• Content providers, Internet service providers treated the same towards broadband subscribers and in IP backbone management

Number 2 is taken for granted by most parties I believe, whereas number 1 I think was and is a failed approach as most network protocols, Internet services and applications as well as end-user devices never was or is designed to be "neutral" or equal to one another, nor to they behave particularly "net neutral".

A couple of examples as to why "network protocols, Internet services and applications as well as end-user devices" are closer to the "all you can eat" camp or passive resources, than nicely behaved, neutral net citizens:

1. Some layer 5 tcp/ip protocols are better designed or designed for better performance than others (depending on how old they are, what they are designed or forced to support or utilize the underlying tcp/ip stack).  Some tcp/ip protocols are also better at utilizing or able to use sliding window mechanisms, giving them larger transmissions windows and better abilities for avoiding IP traffic congestion.  And there are of course performance and behaviour differences in how he basic tcp/ip stack is designed and implemented in differents operating systems and network elements.
   
2. Use of http for adaptive media streaming means streaming clients will quite aggressively seek to reach the highest encoded video rate achievable for their broadband connection and media device playback capability, meaning other network protocols and service deliveries as well as non-adaptive devices will suffer and be put to the back on the broadband connection.
   
3. There are few or none IP packets that traverses the Internet between a sender and a receiver or between two peers today that hasn't been modified in some way by one or more load-balancers, NATs, layer 3-5 traffic accelerators, a cache server or CDN service or had their DNS/IP header re-written or payload compressed in some way or modified depending on OS, browser, location or time of day, meaning that full-time network modification or alterations to Internet traffic is already a fact of life.  And was also some 6-7 years ago. MOst of these are very useful and necessary developments for IP and Internet traffic management, scaling and optimization as the basic tcp/ip protocol stack is old.  Http 1.1 is also getting geriatric. Meaning layer 3-5 protocol optimization, caching and application level load balancing are useful and necessary additions to basic, "neutral" IP networking.
   
4. Most Internet traffic and content today are served by a couple of Internet giants.  As measured in the ATLAS Internet Observatory 2009 Annual Report, "In 2009, 150 ASNs contribute 50% of all Internet traffic".  Would anyone be surprised if some 25-50 ASNs are behind closer to 75% of Internet traffic in 2014?  These Internet giants are using their own fiber backbones and cache/CDN/cloud infrastructures for service and content delivery towards end users, not the basic Internet itself, and Internet bypass for first-mile and middle-mile service delivery has been the default approach and get things done in large-scale settings for years.

These are some of the ways basic Internet network protocols and service delivery never was or isn't "neutral" from the outset, and with cloud-based networking and service delivery becoming the norm towards broadband users and customer in both the business and residential market, this "non-Internet" approach will only accelerate in the coming years.  

As noted above, many of the advance in layer 3-5 traffic optimization, acceleration and load balancing greatly helps in the delivery of services and content towards end users.  And I would like to see the user who takes his YouTube videos or mobile app usage without any traffic assistance at all and opts for a "neutral" non-QoS delivery (it's not even best-effort) over a optimized and accelerated service delivery.  

For net neutrality I think the main focus for policy development should center around 

• Treating everyone the same, including giving everyone the option of paying for optimized transport and Internet traffic management on Internet first-mile, middle-mile and/or last-mile sections
• Open and transparent information as to how first-mile, middle-mile and last-mile service providers (including CDN- and cloud operators) utilize Internet traffic management and optimization technologies for their networks, CDNs or clouds and what's available for 3rd parties to utilize for their service delivery through open APIs, SDN interfaces or manually.  In short, what's their internal and 3rd party QoS regime and policies.
• Don't limit IP network, Internet and IP traffic management developments by enforcing a net neutral straitjacket on Internet networking and service delivery that hasn't kept up with reality for the last 10 years or so.

In short: The net was never neutral, but users on the Internet needs to be treated neutrally.

Erik Jensen, 20.1.2014