Canada’s Supreme Court, in a ruling this morning, says that ISPs are not subject to the same rules that broadcasters are. Cultural groups argued that since ISPs distribute content, they should be considered a broadcaster according to The Globe and Mail.

“An ISP does not engage with these policy objectives when it is merely providing the mode of transmission,” the court ruled. “ISPs provide Internet access to end-users. When providing access to the Internet, which is the only function of ISPs placed in issue by the reference question, they take no part in the selection, origination, or packaging of content.”

If the court had ruled in favor of the cultural groups, it would subject ISPs to levies that broadcasters currently pay. The money that the broadcasters pay go back to content producers in the form of grants to encourage the creation of the original Canadian content.

The case was filed by the Alliance of Canadian Cinema, Television and Radio Artists, Canadian Media Production Association and the Directors Guild of Canada and Writers Guild of Canada.

The groups said that they will continue to “press for solutions to ensure all those involved in broadcasting, including ISPs, have a regulatory responsibility to contribute to the Canadian broadcasting system.”

Representative Kymberly Pine, an Oahu Republican and House minority floor leader, told CNET that her intention with H.B. 2288 was to “protect victims of crime.” She didn’t mean the bill to imply that it would collect information on every resident in Hawaii.

“We do not want to know where everyone goes on the Internet,” Pine said. “That’s not our interest. We just want the ability for law enforcement to be able to capture the activities of crime.”

Pine has said that the bill will now be revised. She admits that the idea of collecting and keeping information on users “was a little broad.”

The House Committee on Economic Revitalization and Business heard from opponents of the bill yesterday. They said it was anti-business and would do nothing to reinvigorate the economy.

The American Civil Liberties Union of Hawaii said that the bill was a “direct assault on bedrock privacy principles.” They said that instead of keeping more records, a good privacy practice is to delete data that’s no longer needed.

Other opponents warned that the bill’s data collection requirements “could be misused in lawsuits.” The U.S. Internet Service Provider Association even jumped in to warn that the bill would be “incredibly expensive” to implement.

Pine told CNET that the law wasn’t based upon her own experience of being attacked with a Web site, but rather those who were affected by crimes like child pornography. She said that they will rewrite the bill with the help of ISPs. They have a month to discuss the legislation to propose changes that all sides will be content with.

The bill currently has no privacy protections or security requirements. These will be most likely added in as the bill is modified over the next month.

John Mizuno, the lead sponsor for the bill, has not changed his stance on the bill. He also introduced H.B. 2287 which would toughen punishments for computer crime.

Take that back. In any climate, John Mizuno would have to be outside of his mind to introduce a bill like this. That is, unless it passes – in which case we will all feel like we’re the ones taking the crazy pills.

Anyway, the idiotic and dangerous bill that I’m referring to was proposed on Friday and would basically require all internet providers to retain customer records for a time “no less than two years.” The “customer records” would not only include each subscriber’s personal information, but their entire browsing history.

Seriously. The language is as plain as it is vague. Check it out:

Recordkeeping requirements for internet service providers. Any internet service provider that provides internet service to a consumer in the State shall retain consumer records for no less than two years. The required data for the consumer records shall include each subscriber’s information and internet destination history information. Destination information shall include any of the following:

(1) Internet protocol address;
(2) Domain name; or
(3) Host name.

This is the only directive included in H.B. 2288. Nothing else to describe motivations, or specific clarifications either. When a politician introduces legislation this moronic, one immediately thinks about ulterior motives. But what could Rep. Mizuno have to gain from this?

The bill simply requires ISPs to log all of this data and makes no mentions of how they can use it or who they can give it to – the police? Advertisers?

And as CNET points out, if passed, this could end up affecting more than just Hawaiian citizens:

Because the wording is so broad and applies to any company that “provides access to the Internet,” Mizuno’s legislation could sweep in far more than AT&T, Verizon, and Hawaii’s local Internet providers. It could also impose sweeping new requirements on coffee shops, bookstores, and hotels frequented by the over 6 million tourists who visit the islands each year.

The bill is being heard in the House today. A companion bill has also been introduced in the Hawaii State Senate, with no hearing yet scheduled.

I’m not sure that I’ve heard legislation so dangerously vague in quite some time. What do you guys think? Let us know in the comments.

The report is an analysis of Internet Service Provider market share within businesses in the country. AT&T leads with 20% market share of all browser-based Internet page views.

Verizon came in second place with 12% share, followed by CenturyLink with 7%. The five largest business ISPs drove about 50% of business Internet traffic.

“The current state of the domestic business ISP market reveals a landscape led by a couple of top providers. However, even with smaller carriers contributing only a fraction of the traffic delivered by top carriers, the business ISP market is still more competitive than the residential ISP market,” said Greg Mishkin, comScore VP of Telecom and Wireless. “The small business segment is even more competitive among ISPs, highlighting the need for providers to develop strong marketing strategies to ensure they can retain and grow market share.”

Still, AT&T leads the pack across all sizes of business: large, small and medium-sized:

The top five ISPs account for nearly 70% of all traffic for large businesses. The percentage goes down, however, the smaller you go. The number is 56% for medium-sized businesses and 40% for small.

I suppose the FCC should be commended for going forward with the concept, as watered down as their version is, but there’s a real sense that whatever version the United States receives will have the fingerprints of AT&T, Verizon, Time-Warner and any other powerful telecom entity in the United States all over what gets adopted. Considering AT&T’s burning love for capping its Internet customers, as well as their oft-discussed political influence via the purchase of various politicians, and the Supreme Court’s previous acquiescence to Verizon over the FCC, and it’s easy to see why this particular writer isn’t holding his breath for true net neutrality in the United States.

Editorials aside, the FCC has officially laid down the soon-to-be cast aside guidelines for what net neutrality adherence would mean in the United States. The rules, courtesy of an FCC pdf, are as follows:

i. Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;

ii. No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and

iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

These “three basic rules” should be the backbone of any Internet network — in a perfect world, anyway — but we already know that AT&T and Verizon oppose these rules, thanks to their desire to turn the Internet into a 21st century cable television subscription package, and when you consider the sway these corporate entities have over the very government that supposedly backs the FCC, you can see why it’s hard to be optimistic about net neutrality being truly adopted in the United States.

With that in mind, at least the FCC is giving it the old college try. These net neutrality provisions are scheduled to become active rules on November, 20th of this year, but it’s doubtful these rules go unchallenged by the corporate masters who rule the telecommunications industry.

This news was revealed in an article by Jim Giles at New Scientist, who explains: “The hijacking seems to target searches for certain well-known brand names only. Users entering the term “apple” into their browser’s search bar, for example, would normally get a page of results from their search engine of choice. The ISPs involved in the scheme intercept such requests before they reach a search engine, however. They pass the search to an online marketing company, which directs the user straight to Apple’s online retail website.”

He says patents filed by Paxfire, a company involved in the hijacking, indicate the whole thing might be part of “a larger plan to allow ISPs to generate revenue by tracking the sites their customers visit,” and that “it may also be illegal.”

A class action suit has already been filed by New York law firms Reese Richman and Milberg.

ICSI researchers Christian Kreibich, Nicholas Weaver and Vern Paxson, with Peter Eckersley posted on the Electronic Frontier Foundation’s site:

In short, the purpose appears to be monetization of users’ searches. ICSI Networking’s investigation has revealed that Paxfire’s HTTP proxies selectively siphon search requests out of the proxied traffic flows and redirect them through one or more affiliate marketing programs, presumably resulting in commission payments to Paxfire and the ISPs involved. The affiliate programs involved include Commission Junction, the Google Affiliate Network, LinkShare, and Ask.com. When looking up brand names such as “apple”, “dell”, “groupon”, and “wsj”, the affiliate programs direct the queries to the corresponding brands’ websites or to search assistance pages instead of providing the intended search engine results page.

The ISPs that are redirecting search queries, according to New Scientist, are: Cavalier, Cincinnati Bell, Cogent, Frontier, Hughes, IBBS, Insight Broadband, Megapath, Paetec, RCN, Wide Open West, and XO Communication. Charter and Iowa Telecom, the publication says, were also doing it, but have stopped.

On Google+, Google’s Matt Cutts wrote, “More than ten U.S. Internet Service Providers (ISPs) have apparently been caught hijacking search sessions. Crazy….To protect yourself against this, you can search Google via SSL search at https://encrypted.google.com . It might also help to change your DNS provider. Google has a Public DNS service:http://code.google.com/speed/public-dns/ and OpenDNS has one too.”

SEOs sure have their work cut out for them these days.

Yesterday, the agreement that had been rumored for weeks was finalized. In brief, ISPs have said that they will participate in the efforts against online piracy by implementing a “graduated response,” which basically means a penalty system that increases in severity with each infraction.

Except the first four measures are simply slap-on-the-wrist warnings to “illegal file sharers.” Upon the fifth time that copyright holders flag you as a participant in piracy, the ISPs have the “voluntary” responsibility to implement one of many measures. Those include actions like the slowing of internet speeds and redirecting web traffic to designated pages pending the completion of an educational program on the ills of piracy.

Speaking on behalf of the White House, U.S. Intellectual Property Enforcement Coordinator Victoria Espinel said that the Obama administration is “committed to reducing infringement of American intellectual property.”

Here is some more of her statement –

The joining of Internet service providers and entertainment companies in a cooperative effort to combat online infringement can further this goal and we commend them for reaching this agreement. We believe it will have a significant impact on reducing online piracy.

We believe that this agreement is a positive step and consistent with our strategy of encouraging voluntary efforts to strengthen online intellectual property enforcement and with our broader Internet policy principles, emphasizing privacy, free speech, competition and due process.

As such, we will follow the implementation and outcomes of this arrangement with great interest. Our expectation is that the new organization created by it will have ongoing consultations with privacy and freedom of expression advocacy groups to assure that its practices are fully consistent with the democratic values that have helped the Internet to flourish.

Simultaneously, the Administration will continue to pursue comprehensive solutions to the problems associated with Internet piracy, including increased law enforcement and educational awareness. To win the future and succeed in the global economy, it is critical to protect the intellectual property of America’s innovators and creators.

The takeaway: To win the future, we have to prevent John Q. P2P from downloading The Expendables?

Another, more serious takeaway from this statement: With the administration officially behind the agreement, does it really fall into the realm of “voluntary” for the ISPs anymore?

With regard to broader issues like free speech and communication, do we really want ISPs having the final say on our “guilt” when it comes to filesharing? Do we want them to be able to limit our internet access based on accusations by copyright holders? And is it alarming that the White House thinks that they should?

As Nate Anderson at Ars Technica writes –

There’s a huge, obvious risk to piling up the obligations on intermediaries, who begin taking action against people without court orders and in areas in which they may have no technical expertise. (While appeal mechanisms are available, the new infringement agreement is a “guilty until proven innocent” approach.) ISPs dealing with spam and viruses and DDoS attacks is one thing; ISPs dealing with copyright, speech, and fair use issues is another entirely.

Today’s focus on “education” is therefore an encouraging one, but the “mitigation” measures ISPs will start taking raise key questions. How far we want ISPs to go in private enforcement actions that might target speech, communications, and even Internet access itself is a debate well worth revisiting in light of today’s news—and the White House support for such approaches.

Folks on Twitter, for the most part, aren’t too happy about the White House involvement -

What do you guys think? Should ISPs become protectors of copyright? Let us know in the comments.

Today, according to Ars Technica, that agreement has been signed.

The ISPs that have agreed to begin implementing the new set of warnings include big players like AT&T, Comcast, Time Warner Cable and Verizon.

Here’s how it will work, in brief –

Copyright holders (the industry) will continue to do what they already do, which is scour the interwebs for copyright infringers. When they snatch some IP addresses from a P2P file sharing network, they will report that IP address to the providing ISP.

ISPs will then implement the graduated program that they have just agreed to. it is important to note that ISPs have not agreed to automatically turn over your information to copyright holders. They will still need a court order to do that. This new agreement simply allows for the ISPs to notify you that you have been tagged.

Here is the complete list of the six steps of the graduated response, courtesy of Ars.

First Alert: In response to a notice from a copyright owner, an ISP will send an online alert to a subscriber, such as an email, notifying the subscriber that his/her account may have been misused for content theft, that content theft is illegal and a violation of published policies, and that consequences could result from any such conduct. This first alert will also direct the subscriber to educational resources which will (i) help him/her to check the security of his/her computer and any Wifi network, (ii) provide explanatory steps which will help to avoid content theft in the future and (iii) provide information about the abundant sources of lawful music, film and TV content.

Second Alert: If the alleged activity persists despite the receipt of the first alert, the subscriber may get a second similar alert that will underscore the educational messages, or the ISP may in its discretion proceed to the next alert.

Third Alert: If the subscribers account again appears to have been used for content theft, he/she will receive another alert, much like the initial alerts. However, this alert will provide a conspicuous mechanism (a click-through pop-up notice, landing page, or similar mechanism) asking the subscriber to acknowledge receipt of this alert. This is designed to ensure that the subscriber is aware of the third copyright alert and reminds the subscriber that content theft conducted through their account could lead to consequences under the law and published policies.

Fourth Alert: If the subscribers account again appears to have been used for content theft, the subscriber will receive yet another alert that again requires the subscriber to acknowledge receipt.

Fifth Alert: If the subscribers account again appears to have been used for content theft, the ISP will send yet another alert. At this time, the ISP may take one of several steps, specified in its published policies, reasonably calculated to stop future content theft. These steps, referred to as Mitigation Measures, may include, for example: temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter. ISPs are not obligated to impose any Mitigation Measure which would disable or be reasonably likely to disable the subscribers voice telephone service (including the ability to call 911), e-mail account, or any security or health service (such as home security or medical monitoring). The use of the mitigation measure is waivable by the ISP at this point.

Sixth Alert: Whether or not the ISP has previously waived the Mitigation Measure, if the subscribers account again appears to have been used for content theft, the ISP will send another alert and will implement a Mitigation Measure as described above. As described above, it’s likely that very few subscribers who after having received multiple alerts, will persist (or allow others to persist) in the content theft.

So basically you will receive warnings for the first 4 instances of “illegal file sharing.” Upon being flagged for the 5th time, the ISP may take measures to slow down your downloading or browsing. “May” being the operative word. They don’t have to implement any punishment, but if they do, it’ll be up to them to determine the nature of it.

And like we talked about before, the “education” part of the agreement is front and center. It’s possible that users can only receive full restoration of their service after participating in some sort of educational program about the horrors of file sharing.

There’s no indication that shutting off service completely is any part of the deal, even after 6 strikes.

There are two basic questions that arise from this news. First, will ISPs consistently take the initiative to implement these “mitigation measures,” since it’s all voluntary? And second, will four slaps on the wrist deter flagged P2P sharers before ISPs have to implement the harsher stuff?

Let us know what you think.

The agreement, which has apparently been in the works for some time, would see participating ISPs put some teeth on their anti-piracy efforts.

Under the proposed plan, ISPs would send out written warning to users who were flagged as sharing copyrighted material across P2P networks. These written warning would be called “Copyright Alerts” and there is no word on how many warnings a user would get before more drastic measures were implemented.

This is basically what is in place right now for many ISPs. Not all ISPs send written warnings, some send emails and make phone calls as well.

Where the new plan distinguishes itself is with the strategies for dealing with the repeat “offenders.” Apparently ISPs would have some flexibility in choosing how to deal with these customers, but CNET’s sources give some specific examples of possible responses. A user who is deemed to have shared files illegally may see their internet restricted – maybe just to the top 200 sites until the sharing ceases. The ISP may even be able to intentionally slow down the user’s bandwidth speed.

Here’s the best part – “The subscriber may also be required to participate in a program that educates them on copyright law and the rights of content creators.”

So…P2P traffic school? Seriously? Will it help me avoid points on my internet license?

The plan is called a “graduated response” method.

Of course the ISPs will not be constantly monitoring users for “illegal file sharing.” It will be the job of copyright owners to accuse internet users of malfeasance, and then the ISPs will be at liberty to act.

Recent attempts to combat file sharing by industry groups include the takedown and eventual settlement with P2P service Limewire. Some film companies have enlisted the services of U.S. Copyright Group. That particular organization monitors IP addresses for “illegal file sharing” and then subpoenas ISPs for user’s information. Many times they will sue large numbers of users, as we’ve seen with the Hurt Locker and Expendables cases. They will then offer smaller settlements, maybe a couple thousand dollars, to the defendants.

Those cases involved over 47,000 people combined. These new measures, if they go into place, have the ability to affect an even larger number of people.

CNET’s sources made a point to stress that the deals were not finalized, but were incredibly close. Unless the communications fall through, it looks like ISPs are going to join the anti-piracy movement in a big way.

The initial issue had to do with Comcast customers not being able to access The Pirate Bay, something Comcast naturally got the blame for. After denying any action against TPB, apparently Comcast conducted an investigation of their own, actually assisting the oft-maligned torrent tracker by making sure their service wasn’t filtering any data packages originating from TPB. Comcast members also defended their service on the XFINITY Facebook page, responding directly to accusations of Pirate Bay filtering:

Comcast did not help us fix The Pirate Bay. The problem was GBLX using reverse path filtering. We shut down one of our transits because it was flapping. The result was that all outgoing traffic to GBLX got filtered even though the packets took the same path as before. The Pirate Bay is using different paths for incoming and outgoing traffic to avoid beeing traced. We don’t even know where their servers are. We resolved the issue by activating our other transit again.

GBLX is short for Global Crossing, an international ISP that uses an AT&T-inspired business logo.

So, does Comcast deserve credit for assisting here or will they forever be buried under their history of previous peer-to-peer filtering situations? They know what The Pirate Bay can be used for, but yet, they actively tried to avoid the negative press that comes from ISP filtering, going as far as reaching out to The Pirate Bay developers. How significant is this potential olive branch? Or can it even be constituted as such? It’s a pretty safe bet any illegal file sharers caught while using Comcast’s service would be punished, but the fact Comcast even addressed the situation means they are willing to give users enough rope to hang themselves.

In closing, this is why contextual advertising is and will always be awesome. The following screenshot was taken from a site that has a “Comcast Service Sucks” page, with not much of significance on it. There is, however, a Google-served ad that captures just how much quality the Internet experience truly offers: