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Comcast's New Terms of Service: A Recipe for Discrimination

Published Feb 7, 2008, 4:07pm
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Comcast's New Terms of Service: A Recipe for Discrimination

From SavetheInternet.com, February 6, 2008

By Marvin Ammori

Comcast's new "terms of service," which were quietly issued last week, remove any doubt about who the cable and broadband giant is looking out for " and it's not the customer.

On Jan. 25, the company released its "revised and effective" terms for Internet users with lots of restrictions and new limitations " but little fanfare. No press release. No announcement to customers.

Just a Web-accessible document that, fortunately for me, was forwarded by networking guru Robb Topolski. Upon reading the document Comcast's relative silence becomes clear. Why publicize a limited and throttled service when you are pitching "unlimited" Internet access to your customers?

After having been caught lying to users and the press for years, Comcast is now basically saying: Our network sucks, and we can block your peer-to-peer connections " and everything else " for any or no reason. And since the FCC's competition policy lets us operate with no competitors " where else are you going to go?

But wait, there's more:

1. Comcast thinks you're a virus.

Comcast says it needs to manage its network to protect users from "the negative effects of spam, viruses, security attacks, network congestion, and other risks and degradations of service." Let's put this is plain English:

As a Comcast customer, you pay $40-$60 for what's been sold as a 6 Mbps unlimited service. Let's forget that you're overpaying compared to European and Asian countries for speeds that are 20-to-100 times slower.

If you want to use Comcast's service as it has been advertised, you'll be treated like spam or a virus. You are like a security attack to them. Instead of using the Comcast service as it has been billed, send Comcast your monthly check and, I don't know, read a book. Watch a play. Just don't use the network you paid for. Because Comcast can't handle the load.

2. Comcast throws its buddies under the bus.

Comcast is taking a lot of heat. The FCC is investigating the company after blocking complaints from consumers and a petition filed by public interest advocates.

The FCC responded by asking for public comments before they determine a course of action. More than 15,000 Americans have already weighed in, most complaining about Comcast's blocking a wide range of applications " including the popular peer-to-peer services offered by BiTorrent and others.

Comcast's excuse? The company says its practices are "consistent with industry standards." It claims that many Internet providers "use the same or similar tools that Comcast does."

This is called the first-grader defense: If caught stealing candy, be sure to blame others kids for doing the same. Most adults wouldn't try this excuse. But if you give millions in campaign contributions and support an army of connected lobbyists, you might just think you can get away with it in Washington.

What's lurking behind Comcast's defense is even more alarming. Comcast could be right that content discrimination is industry-wide. If so, the FCC should begin with Comcast and then dig deeper " start investigating the "content-shaping" practices of the phone and cable duopoly that control 96 percent of America's residential broadband market.

3. Comcast violates its own terms of service.

One of Comcast's 12 "conduct restrictions" states that users can't "impersonate any person or entity, engage in sender address falsification, forget anyone else's digital or manual signature." But this is a classic case of "do as I say, not as I do."

To block protocols, Comcast and its vendors impersonate both the sender and the receiver " dressing themselves up as the user to transmit a message that breaks off the connection.

Imagine if the operator were to break into your phone call, impersonate your voice, tell your mother you didn't want to talk with her, and hang up the receiver. Comcast thinks that would be "reasonable" " even though it's in direct violation of the company's own terms of service.

4. Comcast sucks: please use our product less.

In its new terms of service, Comcast essentially admits that it has built its product poorly and lied to customers about "unfettered," "always-on" access. It states that it must "temporarily delay peer-to-peer sessions (or sessions using other applications or protocols) during periods of high network congestion." Let's unpack this. "Delaying" is a lie. What Comcast is doing is terminating connections.

The company calls it "delaying" on the assumption that users will try to connect at a later time " but when you're "delayed" for three hours, do you stay at your computer hitting refresh over and over? Some peer-to-peer applications just give up after a delay.

But Comcast isn't just delaying peer-to-peer sessions " it's delaying sessions using "other" applications and protocols. Translation: "We block whatever we want, whenever. And we say that it's OK for us to do this ... on page five of our online terms of service."

Finally, what are periods of "high network congestion?" If Comcast's network could handle more traffic, there'd be few times of the day with congestion. But when you have a crappy network, "network congestion" is "always-on."

We've seen no evidence that Comcast is only blocking during periods of congestion. We've seen Comcast blocking any time and at random " even attempts to upload small files such as the King James Bible.

Also, users are also forbidden from " intentionally or unintentionally " "generating levels of traffic sufficient to impede others' ability to use, send, or retrieve information." This makes no sense. In general, cable users in a local area "share" the same bandwidth, so generating any traffic at all impacts other users trying to use the network.

Let's be honest " it's Comcast, not users, impeding other users. Comcast says "network resources are not unlimited." But it is Comcast that didn't build a network robust enough to handle how consumers now want to use the Internet. We've left the 20th century.

The reality is that Comcast should have invested in a better network with more capacity. It's time for the cable giant to come clean that what it's selling isn't the real Internet " it's the crippled Comcastic version.

5. Comcast censors free speech.

The "conduct restrictions" in Comcast's terms of service could fill the syllabus of a law school course on the First Amendment. Comcast forbids users from sending "libelous" or "threatening" material, or material "which infringes the intellectual property rights of any person."

Another restriction forbids users from disseminating information a "reasonable person" would consider indecent. If the government were imposing these vague, undefined, restrictions, based on a "reasonable person," the terms would be struck down " with Justices Alito, Thomas, and Breyer arm-in-arm " as flagrant violations of freedom of speech.

But because the government has "deregulated" Internet delivery, private companies like AT&T (which spies on Americans for the government) and Comcast can censor speech. In the words of Supreme Court Justice John Paul Stevens, government cannot "inject federally authorized private censors into forums from which they might otherwise be excluded, and ... therefore limit local forums that might otherwise be open to all constitutionally protected speech."

The bottom line is that we can't trust Comcast " or any other Internet service provider " to preserve free speech on the Internet. And we shouldn't have to.

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