December 17, 2007

"Google Hijacked" debunking follow-up - guest post from ISP owner

[User Generated Content! Let's call this a guest-post, taken from the comments in the DEBUNKING "Google Hijacked" - The Sky, err, The Internet, Is NOT Falling! thread. Note the views and opinions expressed below are those of the writer, not me, though I am broadly in agreement on many points]

Brett Glass here; you may remember me as a long time columnist for magazines such as InfoWorld, BYTE, and PC World. I'm now (among other things) running an ISP, and think that people should think about what Rogers [ISP in Canada] is doing from an ISP's perspective. I've posted some of the text below to the comment sections of a few other blogs, but want to post it here too because it's relevant.

Network neutrality means not using one's control of the pipe to disadvantage competitive content or service providers. For example, if you're a cable company that offers VoIP, network neutrality means not blocking customers' use of other VoIP providers.

Network neutrality does NOT mean that a provider can't "frame" pages (as do many providers -- especially those like Juno which provide inexpensive or free service) or send them informative messages via their browser.

Let's step back and take a dispassionate look at what Rogers is really doing here. They need to get a message to a customer. Like any experienced ISP, they know that there's a good chance that e-mail won't be read in a timely way, if at all. (We, as an ISP, find that our customers constantly change their addresses -- often after revealing them online and exposing them to spammers -- without any notice, and often let the mailboxes that we give them fill up, unread, until they exceed their quotas and no more can be received.) The Windows Message Service once worked to send users messages, but only ran on Windows and is now routinely blocked because it's become an avenue for pop-up spam. Snail mail? Expensive and slow... and the whole point of the Internet is to do things faster and more efficiently than that. Give users an special program to display messages from the ISP? Users have too many things running in the background, cluttering their computers, already -- so no one could blame them if they didn't install it. (Also, many users won't install an application for fear of viruses, and alternative operating systems likely would not run the software.) Display a different page than the user requested? Perhaps, but that certainly comes much closer to "hijacking" than what Rogers is doing. Display a message in the user's browser window (where we know he or she is looking) along with the Web page, and let the user "dismiss" it as soon as it's noticed? Excellent idea. A wonderful, simple, unobtrusive, and (IMHO) elegant solution to the problem.

Now comes Lauren Weinstein -- known for drawing attention to himself by sensationalizing tempests in a teapot -- who has never run an ISP but seems to like to dictate what they do. Lauren claims that the sky will fall if ISPs use this nearly ideal way of communicating with their customers.

Contrary to the claims of Mr. Weinstein's "network neutrality squad" (who have expanded the definition of "network neutrality" to mean "ISPs not doing anything which we, as unappointed regulators, do not approve"), this means of communication does not violate copyrights. Why? First of all, the message from the ISP appears entirely above, and separate from, the content of the page in the browser window. It's not much different that displaying it in a different pane (which, by the way, the browser might also be able to do -- but this is better because it's less obtrusive and unlikely to fail for the lack of Javascript or distort the page below). The display can't be considered a derivative work, because no human is adding his own creative expression to someone else's creation. A machine -- which can't create copyrighted works or derivative ones -- is simply putting a message above the page in the same browser window.

It isn't defacement, because the original page appears exactly as it was intended -- just farther down in the window. And it isn't "hijacking," because the user is still getting the page he or she requested.

What's more, there's no way that it can be said to be "non-neutral." The proxy which inserts the message into the window doesn't know or care what content lies below. The screen capture in Weinstein's blog showed Google, but it just as easily could have been Yahoo!, or MySpace, or Slashdot. For the same reason, it can't be said to be an invasion of privacy, because the software isn't looking at the content of the page above which it is inserting the message.

In short, to complain that this practice is somehow injurious to the author of the original page is akin to an author complaining that his book has been injured by being displayed in a shop window along with another book by someone he didn't like. (Sorry, sir, but the merchant is allowed to do that.)

Nor is what Rogers is doing a violation of an ISP's "common carrier" obligations (even if they were considered to be common carriers, which under US law, at any rate, they are not). Common carriers have been injecting notices into communications streams since time immemorial ("Please deposit 50 cents for the next 3 minutes"). And television stations have been superimposing images on program content at least since the early 1960s, when (I'm dating myself here) Sandy Becker's "Max the burglar" dashed across the screen during kids' cartoon shows and the first caller to report his presence won a prize. (The game was called "Catch Max.") And in the US, Federal law -- in particular, Section 230 of the Communications Decency Act -- protects ISPs from liability for content they retransmit whether or not they are considered to be common carriers. They do not lose this protection if there happens to be other content from a different source in the same window on the user's PC.

There are sure to be some folks -- perhaps people who are frustrated with their ISPs for other reasons -- who will take this as an opportunity to lash out at ISPs. But most customers, I think, will recognize this as a good and sensible way for a company to contact its customers. Our small ISP is looking into it. In fact, because the issue is being raised, we're adding authorization to do it to our Terms of Service, so that users will be put on notice that they might receive a message through their browsers one day. I suppose it's possible that a customer might dislike this mode of communication and go elsewhere, but I suspect that most of them will appreciate it. In the meantime, let's just say "no" to regulation of the Internet.

By Seth Finkelstein | posted in cyberblather , google | on December 17, 2007 11:59 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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It is important to interpret this in light of Canadian, not US law. The Telecommunications Act states:

Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence the meaning or purpose of telecommunications carried by it for the public.

What Rogers is doing, delivering a message/advertisement, violates the Act.

While the sky might not be falling this practice in conjunction with the filtering and traffic shaping already practiced by Rogers is indicative of the ways in which ISPs will continue to interfere with their users' Internet use.

Posted by: Nart at December 18, 2007 10:47 AM

I suspect this specific instance would be deemed not to "control the content or influence the meaning or purpose of telecommunications". The ISP itself doesn't seem to think it's a violation.

I would say this should not be viewed "in conjunction with", since it's a service-related matter.

Posted by: Seth Finkelstein at December 18, 2007 12:23 PM

Playing devil's advocate here? The practice of ISP inserting such stuff sucks, just like many things online suck (spam farms, pop up windows, bulk mail and what not), and I wouldn't want it to happen to my own webpage... and I hope ISPs who do it will continue to get slammed :)

Posted by: Philipp Lenssen at December 18, 2007 03:51 PM

As long as the ISPs don't go out of their way to throttle competition - so people can choose another which doesn't I don't have a major problem.

If almost all ISPs weren't so hated by their customers for the lousy service and lack of choice then maybe the customers wouldn't go out of their way to ignore their service messages and get cranky when they try and shove more stuff down their throats.

The customers already pay for service and now some ISPs will start trying to force extra ads down their throat. And people wonder why customers get annoyed.

However, getting a meaningful choice of providers is not that easy.

Posted by: tqft at December 18, 2007 04:18 PM


you'd think someone would figure out how to block such ISP "messages/"ads or whatever the way you can block regular ads.


P.S. I agree with tqft, the ISPs should have the decency to take no for an answer... and stop trying to get in through the chimney and the like -- people are just going to figure out how to block the chimney so you only get the poor souls that don't know how to find this stuff to hate you
even more and for good reason... D.

Posted by: Delia at December 18, 2007 05:11 PM

Philipp: But ISP's have a legit reason to warn you about service issues, in the way the other examples do not.

tqft: This particular use is not about ads, though the technology provider says it can be used for ads for ad-subsized ISP's. I can't get worked up about that either.

Delia: In the above instance, there's an opt-out.

Posted by: Seth Finkelstein at December 18, 2007 06:38 PM

Seth, you don't really believe people would opt into this kind of thing, do you? (they should make it an *opt-in* if they really think some would *want* this -- I highly doubt it -- opt-outs are just taking advantage of the fact that at least some people just would NOT spend any more time reading extra stuff so ... so *technically* they haven't said "no"...but they haven't really made a CHOICE either...) D.

Posted by: Delia at December 18, 2007 10:08 PM

Well, the whole point in this case is to reach the non-power-user, so it sort of has to be opt-out. Remember, we're only talking about a message that you're about to exceed bandwidth limits. That's what has caused all the ruckus.

Posted by: Seth Finkelstein at December 18, 2007 10:14 PM

ok...then make it opt-in! (that would make sure people *want* it and it's not just a way to put in ads or who knows what later on without peoples' actual consent...) D.

Posted by: Delia at December 18, 2007 10:38 PM

oops! you said it *had* to be opt-out? I don't understand why... D.

Posted by: Delia at December 18, 2007 10:41 PM

Because it has to reach the NON-power-user ... the person who won't know to opt-in, or how to do it even if they wanted to do so.

Posted by: Seth Finkelstein at December 18, 2007 10:47 PM

as long as it's LIMITED to messages pertaining to the *functionality* of the service, I suppose it's not exactly "evil"... but once it's done, what would stop the ISPs from just putting ads or other things in that space? wouldn't we be better off to leave it as it is and have these people call the ISP if they have trouble and don't know what to do? most of them would end-up doing that, anyways...D.

Posted by: Delia at December 18, 2007 11:13 PM

No, because the whole point is to inform users before there are any problems.

Posted by: Seth Finkelstein at December 18, 2007 11:21 PM

It seems to me that you would have to trust the ISPs not to abuse it and I see no good reason to do that... do you, Seth?:) D.

Posted by: Delia at December 18, 2007 11:30 PM

It's not a matter of trust - if they do anything that really violates copyright or trademark law, they can be held to account via those laws.

But it seems absurd to say "ISP, you cannot send customers an important system message, because you *might* use that ability for ... [what? ads?]".

In the US, ISP's already have, BY LAW, broad ability to block any site they want, and have had that ability for a DECADE. Nobody cared, until some companies started trying to manipulate civil-libertarians to be unpaid lobbyists. It's a tribute to how the cats really can be herded sometimes.

Posted by: Seth Finkelstein at December 18, 2007 11:43 PM

They *might*? Come on, Seth... you really think they WOULDN'T do it if they could get away with it? who *knows* if it would really violate those laws until expensive litigation goes through?

"In the US, ISP's already have, BY LAW, broad ability to block any site they want, and have had that ability for a DECADE. Nobody cared..." --> are you suggesting people *shouldn't* care? what side are you on, Seth?


Posted by: Delia at December 19, 2007 12:09 AM


I don't think Seth is on any side. Just trying to get some facts out there and explore the issue a bit more.

The side issue he has been exploring I think is related to the way corporate interests are trying to push issues with a bit more subtlety than previously - they are supporting "concerned" citizens in their quest for empowerment.

L Weinstein at a first glance at his blog doesn't look like a corporate shill, but that doesn't mean those on his side aren't being influenced subtly or otherwise. In some ways it is a good cause "network neutrality" but there are a lot of corporate interests on both sides eg CNN, Google (content providers) vs Ma Bell and friends, who stand to make or lose some significant cash.

Are they going to stand back when it is their dog in the fight?

The technology exists, the laws allow it, the money is there for the taking.

These companies have a fiduciary duty to scoop it up. If they aren't backing a horse in this race some corporate ass should be kicked.

Posted by: tqft at December 19, 2007 07:31 AM

tqft: "Net Neutrality," in general, would serve corporate interests, agreed... (craigslist among them -- no wonder Craig is loudly praising Obama) but things like whether or not ISPs should have yet another means to annoy a large part of their customers or whether people should be concerned that the ISPs want to do something about their unwarranted right to block any site they want... these are serious issues OUTSIDE of the "Net Neutrality" interests. Do they try to USE them to justify "Net Neutrality"? yes! Seth is right on this... but not on dismissing the issues themselves. Talking about ways of dealing with the issues *without* having them be used to justify "Net Neutrality" would be the better way to go about it... I think... D.

Posted by: Delia at December 19, 2007 12:21 PM

Delia: I'm on my side 1/2 :-). For years and years, anyone who talked about ISP's and censorship would immediately be flamed by a mob of net.libertarians who would whine MY SERVER MY RULES! (it's a catchphrase), we would hear endlessly how any g-g-g-overnment (spit, choke) involvement would destroy the Internet, on and on. Now suddenly, just when some very big money players have a financial interest different from ISP's, the terrible horrible dangers of ISP censors are all over the place, and Something Must Be Done! Yeah, this is really about civil-liberties, right.

tqft: Money creates an ecosystem. People who swim with the money get attention, and people who don't ... don't :-(

Posted by: Seth Finkelstein at December 20, 2007 04:05 PM