News flash: I agree with Seth Finkelstein

by Mathew on December 11, 2007 · 18 comments

Plenty of people, including Wired’s Threat Level blog and my friend Leigh, are up in arms about the fact that Rogers (a major Internet service provider, for you non-Canadians) is inserting messages to its customers on top of web pages such as the Google home page. Wired brings up the spectre of net neutrality, and other sites are also scandalized by the practice.

Mike Masnick of Techdirt is right when he says that Rogers’ behaviour betrays a kind of arrogance — a “we own the pipes, so we’ll do what we damn well please” attitude — but I fail to see how this has anything to do with net neutrality. Contrary to what Kristen Nicole at Mashable and others are saying, Rogers is not “overwriting” Web content, it’s merely pushing the page down and inserting a message at the top. Cynthia Brumfield has an example of something Verizon does that she thinks is worse.

Lots of sites do the same thing with frames and so on. Is it ugly? Sure. But apart from that, I don’t see what everyone is getting excited about. In fact, while I’m not sure I want to make a habit of this sort of thing, I’m going to side with Seth “Bah Humbug” Finkelstein on this one. As he notes in his post, this just isn’t that big a deal. Let’s save all of the net neutrality hyperventilating for something a bit more serious, shall we?

  • http://www.robhyndman.com Rob Hyndman

    I don't really agree with you on this one. I don't think the issue is how innocuous the message is in this case, I think the issue is whether the carrier should have any right to intervene in the content. I don't want Bell inserting messages into my phone conversations, or my cable provider inserting its own content when I'm watching PBS, either. I want the pipe to be a pipe.

  • http://www.mathewingram.com/work mathewi

    Fair enough — and maybe the content of the message is irrelevant.
    But to me, it's no different than the National Post covering half the
    front page of my newspaper with a sticky note or house ad of some kind
    to remind me of something, or the TV network I'm watching delaying the
    program for a second or two in order to show me a programming notice.
    I'm not really troubled by it. It's no worse than a pop-up or
    interstitial ad, and everyone is pretty used to those.

  • http://www.robhyndman.com Rob Hyndman

    Oh, and to be clear, I think it *does* matter that Rogers provides a global opt-out on the first appearance. That seems an efficient and reasonable compromise to me.

  • http://www.mappingtheweb.com Aidan Henry

    I'm with Rob on this one…

    I think it is important because it's the first time we're seeing this type of behaviour. If everyone just accepts it and goes along with it, who knows what they may want to do next? It may be a doorway to widespread acceptance. If there is an outcry right off the bat, then it will be a lot tougher to make any inroads.

    Cheers,
    Aidan
    http://www.MappingTheWeb.com

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  • Boomer

    Agreed. Frankly, I would WANT to see a message that I am coming close to my monthly bandwidth limit.

  • http://www.fridgebuzz.com Vanessa Williams

    The big deal is, IMHO, that they're modifying content. A kind of man-in-the-middle attack on your communications with a website. It's just wrong. And it's a slippery slope towards just denying you access altogether (after all, you should be using Yahoo! for a search engine if you're a Rogers customer, right?) Or inserting content of their own wherever and whenever they please. Whether it's ugly or not is irrelevant. Nothing good can come of this (other than it being a goad to making this kind of thing completely illegal.)

  • http://www.mathewingram.com/work mathewi

    Thanks for the comment, Vanessa — and if they were actually messing
    with the content itself or replacing it with their own then I would
    agree. But they aren't, not any more than CBS or ABC messes with the
    content when they put an informational crawl of text along the bottom
    of Studio 60 to tell me what's coming next, or when they pop their
    logo up in the middle of a show.

  • http://www.robhyndman.com Rob Hyndman

    The difference is that ABC or CBS is the content provider. Rogers isn't. It's the network provider. ABC and NBC do that because it's how they deliver you their content – it's essentially self-advertising. But this is fundamentally different from the network provider inserting itself into the content. The neutrality issue is that the network must be content neutral. This isn't.

    This example is factually innocuous and there is a global opt-out, so it's easy to not get too fussed on the facts. But Rogers and other ISPs are progressively testing the outrage boundaries to see what they can get away with. Sooner or later, the principle will really matter, both as principle, and on the facts.

  • http://www.mathewingram.com/work mathewi

    Fair enough, Rob — and when that happens, I'll be gathering in the
    town square with a pitchfork and a torch just like everyone else. But
    for now, I don't see what the big deal is — the network provider is
    sending a message to me about something important to do with my
    account, in a way they know I will see. It doesn't change or replace
    or modify the content in any important way.

  • http://internetducttape.com engtech

    does this only happen if you have your web browser set up to use rogers as a proxy (ie: the default setting with their install CD)?

    I've never seen this one, because setting them up as a proxy is way slower than using the net directly.

  • http://leighhimel.blogspot.com leigh

    There are a lot of approaches to advertising/communications off line that are considered totally inappropriate on the Web. Example, there are these things called TV commercials that break up your viewing experience – but i doubt while I am surfing some sites if I would be ok with a note “we'll be right back after this short commercial message”.

    You cannot make analogies from traditional media. As a matter of fact, it's that type of thinking that gets people into trouble on a continuous basis (including the intro of pop up ads that should be banned whether we are used to them or not – bad for connecting brands to consumers IMHO)

    and ps. I was not up in arms. Truth be told, I rolled my eyes. (and for future reference – privacy issues – upping arms – companies being idiots to their customer base to save money in the short term, rolling eyes)

  • http://www.mathewingram.com/work mathewi

    That's a good question, Engtech — I was wondering that myself, since
    I've never seen such a thing (although I probably haven't come
    anywhere near my bandwidth limit before).

  • http://leighhimel.blogspot.com leigh

    Analogies from mass passive media have no bearing on this discussion (oh wait I already said that….)

  • http://www.mathewingram.com/work mathewi

    Thanks, Leigh. I don't even know what “up in arms” means, really — I
    just liked the sound of it :-)

  • Brett Glass

    Brett Glass here; you probably remember me as an InfoWorld columnist from years past, but today I am (among other things) running an ISP. I've posted the following comment about Rogers and net neutrality on a couple of other blogs and think it's appropriate here too.

    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.

    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.

  • Brett Glass

    Brett Glass here; you probably remember me as an InfoWorld columnist from years past, but today I am (among other things) running an ISP. I've posted the following comment about Rogers and net neutrality on a couple of other blogs and think it's appropriate here too.

    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.

    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.

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