I don't think any long time readers will need to think hard to figure out where I stand on the subject of port blocking as I've been rather transparent on that front almost from the start of my blog posting.
That said I also view my user agreement with Skype and other P2P tools as a contract when I click the accept button of the end user agreement. With this kind of port or traffic by type blocking software coming on board I also feel that any carrier that deploys software to block my usage of the software or service of thus being guilty of tortuous interference, but I'm not a lawyer.
So perhaps the following definition of it here may be useful to others who are:.
Tortuous Interference
Tortuous interference is the unlawful interference into one’s contractual or business affairs. For example, someone who uses the web to defame an individual’s business and contacts their customers (or prospective customers) may be violating this law. A special case of tortuous interference called “Tortuous Interference with Prospective Advantage” is available in some states to punish those who seek to damage one’s ability to find and retain new customers.
The elements of the tort of interference with contract are:
* A valid contract between the plaintiff and a third person that confers upon plaintiff a contractual right against a third person.
* The defendant knows of the contract.
* The defendant intentionally induces the third person not to perform the contract.
* The defendant acts without justification.
*The defendant’s conduct causes actual pecuniary harm to the plaintiff.
So let me paint the picture of what this software could cause:
I'm in the PR industry. I use Skype and VoIP as a means to communicate efficiently with clients and members of the media, as well as creative collaborators. I have agreements with them. Telco Z or company X blocks my ability to efficiently communicate with my clients, the media and said collaborators. This means I have to use other more expensive means. It hurts my bottom line. I have to raise my prices. I lose customers/clients because I'm not able to be as efficient as I used to be.
Since I base my pricing and profit margin (yes I do strive to make one) which directly affects both ability to effectively minimize costs like overhead (i.e. all that tech stuff I pay for) the end result of the traffic blocking or port blocking is thus injurious to my business, and that of countless others, as our ability to operate efficiently and communicate with my clients easily is being denied and the competitive advantage is negated making the economy of scale only to benefit the big, not the nimble.
By blocking the traffic under the guise of deploying "carrier grade application filter, using non-service effecting technology which blocks bandwidth drains such as Skype™, P2P messaging, streaming media and instant messaging" this technology and others like it to follow are likely also aiding and abetting false advertising by the carriers.
How do I reach that conclusion? Simple. Almost every carrier says something in their advertising to the effect of offering "high speed Internet access." Since the word Internet is clearly defined in many places people have an understanding that if they get high speed access they can access what is on the Internet. Nowhere in the advertising do any of the claims made say anything like "get access to only the sites and services that the carrier wants to profit from." None of the major ads say "access only the World Wide Web and your Email for $14.95 but don't expect to access FTP services, stream, IM, use P2P software, download a file, upload an attachment, etc." That's in theory is exactly what the software can do.
Next you will have some carrier saying that it's okay to block traffic to Amazon or eBay because the phone company supplying DSL doesn't get a cut of each transaction. All that will happen is the customer will move to the cable company who will use the telcos marketing stupidity against them. Imagine the tv ads.
"Our service lets you do anything you want on the Internet. The other guys don't. Where would you rather be?"
Next say T-Mobile deploys this technology in their network so people can't listen to NPR, make Skype calls @ hotspots or use IM. How long do you think it would be before Boingo is signing up Coffee, Bean and Tea Leaf. And how long would it be before the customers with laptops and lattes move down the block.
While the technology may have application in the Enterprise with some level of workers, anything that creates a fettered Internet is inherently bad. My guess is this will be a topic of discussion at the Blogger Panel.
In the past I have heard of similar efforts to block streaming media. I know giants like Microsoft hate the idea of port blocking. With investment in the P2P technology they have already made beyond Teleo, with Yahoo's investment in VoIP and P2P based file sharing, with companies like eBay vested into Skype and more I can see a huge coalition available to be formed to insure that IM, streaming and P2P remain free.
I also wonder about the validity of this statement from the Verso press release: “Applications such as Skype, Peer-2-Peer (P2P) messaging, streaming media and instant messaging increasingly cause congestion on service provider networks and interrupt or degrade service for other critical applications.”
One of the core benefits of P2P is that it actually reduces costs for moving files. P2P apps and platforms like Bit Toreent are drawing huge attention because they are more efficient. That’s one of the reasons why companies like RedSwoosh and others are gaining customers as there approach to swarmcasting and distributed downloads makes for better delivery methods. As a result P2P usage actually reduces congestion, it doesn’t increase it. It also reduce costs of storage and hosting because it pushes storage to the edge, and doesn't keep it at the core. This is much like the hub and spoke approach of Southwest Airlines versus the gateway cities approach of Delta, Northwest, United and American Airlines. Which airline is making money and which are floundering?
The carriers here in the western world are selling pipe. Dumb pipe. It connects house or office to servers and end points. If the company behind the software wants to create a toll road like architecture someone will invent a new way around it. If companies want to make and market software that does exactly this blocking I say go sell the software in totalitarian countries. That’s where they embrace this kind of thinking. But don’t do it here in the good old USA.