The White House and the Federal Communications Commission have painted themselves into a very tight and very dangerous corner on Net Neutrality.  To date, a bi-partisan majority of Congress, labor leaders, consumer groups and, increasingly, some of the initial advocates of open Internet rules are all shouting that the agency has gone off the rails in its increasingly Ahab-like pursuit of an obscure and academic policy objective.

Now comes further evidence, none of it surprising, that all this effort has been a fool’s errand from the start.  Jacqui Cheng of Ars Technica is reporting today on a new study from Australia’s University of Ballarat that suggests only .3% of file sharing using the BitTorrent protocol is something other than the unauthorized distribution of copyrighted works.  Which is to say that 99.7% of the traffic they sampled is illegal.  The Australian study, as Cheng notes, supports similar conclusions of a Princeton University study published earlier this year

Remember how we got here

What does that have to do with Net Neutrality?

Let’s recall how we got into this mess.

When it became clear in 2007 that Comcast was throttling or blocking BitTorrent traffic without disclosing the practice to consumers, the FCC held hearings to determine if the company had violated the agency’s 2005 Internet policy statement.  The Framework for Broadband Access to the Internet included the principle that “consumers are entitled to access the lawful Internet content of their choice . . . [and] to run applications and use services of their choice,” and many argued that Comcast’s behavior violated that principle.

In the interim, Comcast changed its method of managing high-volume activities and achieved a peaceful resolution with BitTorrent.  Still, the FCC concluded that Comcast had violated the policy and issued a non-financial sanction against the cable provider in 2008.

Comcast challenged the order to the U.S. Court of Appeals for the D.C. Circuit, which hears all appeals of FCC adjudications.  Comcast argued that the FCC lacked authority to enforce its policy, and the D.C. Circuit agreed.

While the D.C. Circuit case was pending, however, the FCC in October of last year issued its Notice of Proposed Rulemaking for “Preserving the Open Internet.”  The goal of this NPRM, still pending, is to codify and enlarge the 2005 Internet policy statement and transform it into enforceable net neutrality rules.

Why change the policy into rules?  In explaining the “Need for Commission Action,” the NPRM noted that “Despite our efforts to date, some conduct is occurring in the marketplace that warrants closer attention and could call for additional action by the Commission, including instances in which some Internet access service providers have been blocking or degrading Internet traffic, and doing so without disclosing those practices to users.”  (¶50)  The NPRM added to the four principles laid out in the 2005 policy a new requirement that ISPs make their network management practices more transparent to consumers.

But the NPRM premised the FCC’s authority to issue net neutrality rules on the same jurisdiction it used to issue the sanctions against Comcast, so-called “ancillary jurisdiction” under Title I of the Communications Act.

Once the D.C. Circuit ruled in April of this year that “ancillary jurisdiction” was insufficient, the FCC’s ability to complete and defend the NPRM was called into doubt.  The FCC couldn’t sanction Comcast under the policy statement, and may not be able to enforce the proposed rules either.  There may be no legal authority, the agency believes, to prohibit Comcast’s interruption of BitTorrent transfers.

So the FCC is now pursuing perhaps the most extreme option for shoring up its authority, and that is the reclassification of broadband Internet access to be a Title II “telecommunications” service subject to a dizzying array of potential new rules and regulations at the federal, state, and local level.

It is that leap of madness that has splintered the net neutrality coalition, and united Congress in calling for the FCC to step back from the brink.

Back to BitTorrent

Back to the BitTorrent studies.  The Australian and Princeton research makes clear what everyone already knows.  Despite the technical merits of the BitTorrent protocol and the best efforts of the company that manages the protocol, the vast majority of users availing themselves of this technology are using it for activities that violate U.S. and foreign copyright laws.

Here’s the problem.  The FCC’s Internet policy statement, the proposed rules, and the effort to ensure authority to enforce those rules under Title II are all premised on the sensible limitation that consumers should have the right to access the “lawful Internet traffic” of their choice.  (See ¶ 1 of the Title II Notice of Inquiry, e.g.) (emphasis added)

They don’t apply at all to unlawful activities, whether of consumers or content providers.  Which is to say, they don’t apply to the vast majority of BitTorrent file transfers.

Not clear?  Let’s keep going.  According to the NOI, the FCC reads the Comcast decision as holding “the Commission lacked authority to prohibit practices of a major cable modem Internet service provider that involved secret interruption of lawful Internet transmissions, which the Commission found were unjustified and discriminatory and denied users the ability to access the Internet content and applications of their choice.” (emphasis added)

The proposed net neutrality rules are equally emphatic:  they apply only to lawful Internet activity.  (The NPRM refers to “lawful content” nearly 50 times.)

If there’s any doubt about the intent of the old policy, the proposed new rules, or Title II to protect illegal file sharing, the FCC dispels it over and over in the NPRM.  “The draft rules would not prohibit broadband Internet access service providers from taking reasonable action to prevent the transfer of unlawful content,” according to the Executive Summary of the NPRM, “such as the unlawful distribution of copyrighted works.” (emphasis added)

This is a fine how-do-you do.  Comcast limited its arguments in the D.C. Circuit to jurisdictional and procedural flaws in the FCC sanctions.  But assuming Comcast had made the argument, now supported by ample evidence, that it was not blocking any or nearly any “lawful content” in the first place, neither the old Internet policy nor the proposed Net Neutrality rules would actually apply to Comcast’s interference with BitTorrent transfers–the “practice” that started this catastrophe and which has led us to the verge of policy warfare.

Indeed, under the Digital Millennium Copyright Act and other copyright laws, it’s very likely that Comcast could be compelled by the Department of Justice or affected copyright holders to stop the vast majority of BitTorrent transfers, on pain of large civil or even criminal penalties.  Which is yet another reason (if the FCC had needed another reason) that none of the proposed rules, regulations, or reclassifications would actually correct the only problem the FCC claims it is trying to address.

So neither the NPRM nor the Title II Notice of Inquiry, in the end, have anything to do with Comcast’s network management practices or the D.C. Circuit’s decision.  The sad irony here is that assuming the Commission goes ahead with reclassification and then completes the net neutrality rulemaking, there would be nothing to stop Comcast from going right back to blocking BitTorrent traffic.  There might even be legal authority compelling them to do so.

Meanwhile, the National Broadband Plan, the Commission’s stand-out achievement under Chairman Julius Genachowski, has taken a back-seat to hyperventilating over a non-event and a non-problem.

Please, can we get back to making the Internet better for more Americans?