Net Neutralty, ISPs and the rest of the web infrastructure

Submitted by John on Mon, 08/12/2019 - 23:57

Warning, I'm not a legal expert. I just spend a lot of time building great websites. So take what I say with a grain of salt.  

I recently ran into some discussion on twitter with some fellow web development professionals, which lead to an interesting question. Do services like Content Delivery Networks (CDNs) fall under the purview of net neutrality? Net neutrality meaning the requirement that Internet Service Providers not restrict the web traffic to it's customers, by providing premium service access to a set of sites. In other words, should Comcast be able to charge extra for you to access Netflix? This all started with the recent news when cloudflare discontinued service for the 8chan website. Now the general umbrella term of ISP does include hosting, CDNs, domain registration, and other services that does not strictly involve delivering packets of information that last mile to a normal users home connection, or what is normally knowns as broadband providers. However, the big distinction between these services is in who is paying the service provider. So the question being posed, is Cloudflare in the right for discontinuing their relationship with 8Chan?

For an end user with an ISP delivering network connectivity to someone's home. That resident is paying for the access. As such, that person agrees to the terms of service in the contract, provided by the ISP. Since many of these ISPs are very large, and users may not have much bargaining power in these situations, it stands to reason, that these service providers have the right to discontinue service for just about any reason they see fit. One great example, is that you generally cannot host websites from a residential IP. The kind of traffic this can generate is just not permitted. 

On the inverse, it is the content providers who are the paying customers of service providers like web hosting, or CDNs. So it stands to reason that these relationships are governed by the same rules, that permit each party to discontinue the relationship if they perceive a breach of contract. In the Cloudflare case, they perceived that 8Chan was engaging in a particular level of lawlessness that they could not tolerate. Also, Cloudflare is just one of dozens of CDN services out there, it's not difficult to simply move to another one, assuming the new service is willing to tolerate the level of risk 8Chan introduces. The question is warranted, one can imagine a smaller market, or one regulated heavily by the government, introducing strict access control over content providers. I don't think such a system would survive outside of countries like China. But for a U.S. provider, the point is a bit moot, since this is a busy marketplace, But what might be the biggest sticking point, is that the FCC Releases Open Internet Order specficially does not apply to CDNs.

"But this Order does not apply the open Internet rules to interconnection. Three factors are critical in informing this approach to interconnection. First, the nature of Internet traffic, driven by massive consumption of video, has challenged traditional arrangements—placing more emphasis on the use of CDNs or even direct connections between content providers (like Netflix or Google) and last-mile broadband providers."

The common rationale seems to be that CDNs are not inherently "bottlenecks," or gatekeepers in the system like ISPs are. So to make an analogy, If I own the office building where you are running your business, I have the right to kick you out if I believe you are violating out contract. But what I can't do is stand in the driveway of your customers, going through their mail, and telling visitors who can and can't enter.