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The other net neutrality debate: Should mobile messaging be subject to provider policing?
The results of a Pew research poll released last week painted a picture of a society where most people know very little about very significant technologies, concepts and influencers.
Yet while understanding Moore's Law and the distinction between the Internet and the World Wide Web probably have little bearing on the daily lives of most Americans, there's one issue, highlighted in the Pew poll, that does — net neutrality.
Pew found that about 40 percent of Americans do not understand net neutrality or what it refers to. But it’s probably safe to wager that even fewer understand how net neutrality affects content that's delivered on mobile phones via text message and Short Message Service (SMS) — means of communication that are now commonplace across a swath of use cases.
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For the most part, the net neutrality debate focuses on whether Internet service providers should be able to discriminate between the data that's delivered through their pipes. In regards to text messaging and SMS, however, the net neutrality issue is whether mobile carriers should be able to regulate the content they provide to customers, specifically if it's via the Internet.
The whole mobile issue gets a bit murky because mobile services consist of two distinct elements: Voice and Internet. The voice component is protected as common carriage under Title II of the Communications Act of 1934, but Internet-based services, however, are not.
This debate is particularly concerning to Twilio CEO Jeff Lawson. Twilio offers voice, SMS and MMS messaging services to mobile phones via Amazon Web Services. According to Lawson, the freedom of those services is in jeopardy, and has been for some time. Unlike phone calls that have unfettered access, the delivery of a text message is up to the carrier to decide. With new laws and without net neutrality, Lawson says carriers will be in the position to police content and determine what is appropriate for message recipients to see.
"As a company Twilio has a unique viewpoint because we are a communication service that works with both sides," Lawson said. "Twilio favors Title II treatment for mobile, broadband, text and SMS. The fact is that when you don't have Title II protection, carriers have the ability to decide how to prioritize things. It's a scary world."
Lawson referred to a case from 2007 involving Verizon Wireless and the reproductive rights group Naral Pro-Choice America. Verizon chose to block the delivery of text messages from the organization that it viewed as controversial and unsavory. Most parties agreed that Verizon was technically within its rights as a carrier to block the messages, simply because the laws prohibiting common carriers from disrupting voice transmissions on phone lines are not applicable to text messages.
"When you don't have Title II protection, carriers have the ability to decide how to prioritize things. It's a scary world."
In many instances of carrier policing, the blocking takes place during the arduous short code application process. Created by the CTIA in 2003, short codes are those little five-digit numbers that carriers require for a business or organization to begin a mass messaging campaign. As part of the application process, all supported wireless carriers must review the short code before it can send and receive SMS and MMS messages, and each carrier reserves the right to suspend short code service for any user at any time. In all, the short code carrier approval process takes between 12 to 16 weeks.
The problem with short codes is that they are not considered phone number services, and instead are viewed as private numbers controlled by the carrier. Twilio supports a total overhaul of the short code system, arguing that there is no technological reasoning for their use and that the uncertain application process inhibits innovation from developers.
Here's an excerpt from comments Twilio submitted to the FCC in December 2011:
Blocking and the threat of blocking inhibit growth in this sector because applications can be rendered useless if a wireless carrier blocks text messages from the applications. Developers are reluctant to create new applications knowing they are susceptible to being shut down by a carrier. Stated simply, arbitrary limits on the use of a technology, here text messages, inhibit growth and innovation with that technology. The Commission has taken steps to prevent Internet service providers from blocking the content over the web. A carrier could not block a phone call because of the content of that call. Why are text messages any different? Common carriage protection would encourage application development using text messages by providing stability and certainty to app creators. Stability in the marketplace would mean more jobs, because it would mean more development.
According to Kevin Werback, professor of legal studies and business ethics at the University of Pennsylvania's Wharton School of Business, there's pretty much universal support for the principal of network neutrality today, including from the major carriers. The disagreements are on the source of FCC authority, whether certain practices such as paid prioritization should be absolutely banned, the specific non-discrimination test, and how broadly the rules extend.
"The FCC has been reluctant to determine the regulatory classification [of text and SMS] purely based on functionality, because that might impose unnecessary regulation on innovative and competitive new services," Werback said. "So, for example, Facebook is not regulated as a carrier even though they do Facebook Messenger and WhatsApp. The same goes for Twilio's customers."
While the debate on all sides of net neutrality is still steaming toward an uncertain end, support in favor of it continues to ramp up. Several weeks ago President Obama came out in public support of net neutrality, releasing a statement urging the FCC to reclassify Internet service as a utility. Obama added that the FCC should tighten net neutrality rules to include mobile broadband.
