Federal protection for net neutrality will officially end on April 23. The Federal Communications Commission’s new regulations, which abandon rules against blocking, throttling, or otherwise discriminating against lawful content, were published in the Federal Register Thursday, and will take effect in 60 days.
As the FCC withdraws from protecting net neutrality, states are taking up the fight. Five governors have issued executive orders banning state agencies from doing business with broadband providers that don’t promise to protect net neutrality, and at least 26 state legislatures are considering net neutrality rules as well.
Assuming the rules survive legal challenges, the big question is how states will ensure carriers keep their promises. “Blocking is straightforward,” says Ernesto Falcon, a lawyer with the Electronic Frontier Foundation. “Throttling is much more complicated.”
There are many reasons why one app might be slower than another. The app makers may have skimped on infrastructure. Or the app might be temporarily overloaded. Or maybe someone else in your house, using the same WiFi connection, started hogging your bandwidth as you opened the app.
None of the five governors’ offices responded to our questions about how they plan to monitor broadband providers for net neutrality violations. Falcon says states will need hard data, and engineers to review that data, to identify throttling, discrimination, or prioritization. That’s part of the motivation behind Northeastern University’s Wehe project, which helps users check to see how neutral their connections are.
Wehe offers apps for both Android and iOS that test the speeds of several popular apps, including Netflix, YouTube, Spotify, and Skype, by downloading data cloned from those apps and sending that data from Wehe’s servers. Then the app downloads random data from the same servers and compares the data-transfer rates. Wehe tracks how quickly the cloned data downloads, compared with the random data. The apps can test both mobile connections and, via WiFi, home broadband connections.
By gathering data from many people using their devices in different places and at different times, Wehe can get a better sense than any individual user of whether certain apps or services are treated differently than others. Wehe’s apps have been downloaded more than 150,000 times, and at least 100,000 people have used them.
Wehe project lead David Choffnes says the group hopes to release anonymized data sets this spring, so that regulators, users, watchdog groups, and broadband providers themselves can analyze the data. The team is already working with the French telecommunications regulator Arcep and has a contract with Verizon to provide measurements of video-streaming quality over cellular networks.
Choffnes says the team hasn’t found any cable or DSL providers like Comcast or Charter throttling video. But it has noticed that AT&T, T-Mobile, and Verizon all take take steps to slow video content on their mobile networks. All three disclose the practice and both AT&T and T-Mobile allow you to opt out of the speed constraints. That’s important under the FCC’s new regime, which requires only disclosure. But it hasn’t always been clear what the companies’ disclosures actually mean.
Since 2015, for example, T-Mobile’s “Binge On” feature has allowed customers to watch unlimited amounts of video from the company’s partners, including Netflix and Hulu, without those video streams counting against their data limits. When it launched, T-Mobile specified that only DVD-quality video, not high-definition video, would be exempted from data limits. But it didn’t explain that Binge On also slowed all video connections, including those of sites that didn’t partner with T-Mobile and weren’t exempt from data limits.
This is a bit of a gray area under the Obama-era net neutrality rules, which forbid broadband providers from degrading connections based on content, application, or service. T-Mobile has long argued that it doesn’t “throttle” video connections, but rather “optimizes” the connections and pointed out that customers could deactivate Binge On at any time. That was apparently good enough for the FCC, which never pursued action against T-Mobile over the offering.
Similarly, Verizon’s website discloses that its “Go Unlimited” customers are limited to DVD-quality video streams. It doesn’t make it clear how it imposes those limits and didn’t answer our questions about how the service works. But the company told Ars Technica last year that it limits video-connection speeds. Verizon also told Broadcasting and Cable that “Video optimization is a non-discriminatory network management practice designed to ensure a high quality customer experience for all customers accessing the shared resources of our wireless network.”
There’s a case to be made that mobile carriers are being reasonable when they downgrade video connections to DVD-quality speeds. Most people can’t tell the difference between high-definition video and DVD-quality resolutions on smaller screens, so the bandwidth used delivering that data is essentially wasted.
Wehe could help both users and regulators cut through semantic games that companies play in their disclosures and reveal exactly how carriers manage their networks. Coffnes acknowledges that video traffic poses real challenges for mobile networks and hopes the data Wehe collects will help carriers find ways to manage their networks without throttling video.
But there are limits to Wehe’s effectiveness. Right now the app only tests YouTube, Amazon, NBCSports, Netflix, Skype, Spotify, and Vimeo. Coffnes says the team plans to allow users to add their own tests, but it will never be able to test every site on the internet. Former FCC enforcement chief Travis LeBlanc cautions against relying on technical solutions alone. He points out that speed tests can be gamed, and companies’ practices can change rapidly.
LeBlanc, now a partner at the law firm Boies Schiller Flexner, says state regulators will also need to rely on reports from the public, whistleblowers, and disclosures from carriers, as well as crowdsourced tools like Wehe. If a broadband provider did decide to discriminate against particular sites or content, a state attorney general could then build a case based on consumer complaints, network data, and insider testimony, he says.
UPDATED, 9:40AM: This article has been updated to reflect publication in the Federal Register.