A number of Democratic members of Congress have signed on to an amicus brief filed by Sen. Ed Markey in the Mozilla challenge to the FCC’s Restoring Internet Freedom Order. The brief focuses on two elements of broadband Internet service – DNS and caching – and gets both of them wrong.

This is disappointing because Markey is generally considered to be the Democrats’ leading expert on Internet regulation. Indeed, the brief touts Markey’s role in drafting the 1996 Telecom Act and suggests he’s an authority on the subject:

Indeed, amici have unique knowledge regarding an issue at the core of this case: whether broadband access to the Internet is properly classified as a “telecommunications service” or as an “information service,” as those terms are employed in the 1996 Act.

Let’s see if this knowledge is uniquely good or uniquely bad.

Telecommunication vs. Information Processing

The legal distinction between Title I Information Services and Title II Telecommunications Services is simple enough on the surface. The first processes information, while the second moves information between point A and point B.

There is a gray area around the use of information processessing to transfer information, and this is where Markey stumbles. His error is accepting the reasoning provided in the 2015 Open Internet Order as reasonable and truthful.

To prove its case, the RIF Order simply needs to demonstrate that broadband Internet service contains a measure of information processing beyond what’s necessary to operate a network. To prove his case, Markey needs to show that all of the information processing ISPs do in the course of providing Internet service simply facilitates the transmission of information across the Internet.

The Transmission Argument

Telecom law defines telecommunications service as: “transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” So three things must happen for this definition to hold true:

1. The user must specify one of more pairs of end points;
2. The user must select the information to be transferred;
3. The transmission must not change the form or content of the information.

If any one of these conditions does not hold true, the transaction in question is not a telecommunications service. If, for example, I express a desire to receive a video stream from a particular location with a particular resolution and the service provider changes the resolution, this is not a telecommunication transaction because the form of the information has changed.

The Boundaries of Transmission

Similarly, if I specify a given end point from which to receive information and the service obtains the information I desire from a different end point, this is no longer telecommunication. And If I specify I want Godfather III and the service gives me Godfather II, this is a better selection but it’s not telecommunication.

The only exception would be in the second case: if the service switches end points for its own reasons, that could be judged a telecommunication  management decision. But it would need to involve considerations pertaining to the “management, control, or operation” of a genuine telecommunications service.

As a general matter, telecommunications on an IP network is nothing more that the faithful transmission of Internet Protocol datagrams from one IP address to another. The management loophole can therefore only apply to activities directly related to the “management, control, or operation” of a network’s movement of IP datagrams from point of origin to point of consumption. The loosest part of the loophole is “operation” because that includes things like accounting and billing.

The Caching Argument

Caching is a service that adds value to IP networks by dynamically moving information closer to the point of consumption. It’s not possible to do this with all kinds of information because information doesn’t necessarily exist before transmission.

I can store copies of movies all over the Internet, but I can only have a conversation between end points that correspond to the locations of the parties. Companies such as Akamai have made a business of transmitting cached content all over the Internet.

This does not make them telecommunication providers because they’re selling storage and retrieval in addition to transmission. Firms like Akamai can also make decisions on behalf of users with respect to the form of the information they deliver; they can choose among video streams encoded at various resolutions and degrees of compression. And Akamai ultimately decides what IP address your information comes from.

Why ISPs Cache Information Within Their Networks

Some ISPs operate internal caches of commonly-requested information. Markey claims ISPs perform caching for one narrow purpose:

Internet caching when so employed by the broadband service provider is not a technology that anyone would consume other than adjunct to the use of Internet access service. [Caching] technology exists for the sole purpose of improving the performance of the telecommunications service offered by companies providing broadband Internet access.

This is false. ISPs can and do perform exactly the same kind of caching that commercial caches do. One example is their operation of Netflix appliances within their network footprints that work exactly the same way that Netflix caches do in other locations.

How Information Transactions Differ From Transmission

These appliances adapt stream resolutions and reduce telecommunication expenses for both Netflix and the ISP. Some ISPs actually bundle Netflix subscriptions with their services, which obviously changes the way consumers perceive the ISP service.

When such users request Netflix programs, they don’t care about the IP addresses that the programs come from or for the content’s specific form. They’re actually requesting information by name (rather than address) to be presented in a convenient format (rather than the original format) from wherever it can be found (rather than from a fixed address.)

This is not telecommunication per the statutory definition. Transactions of this sort can only fall inside the management exception if one has presupposed, as Markey appears to do, that any activity performed by an ISP is telecommunication by definition.

The DNS Argument

IP transmission consists of moving (or copying) an IP datagram from a source IP address to a destination IP address. In order to do that, multiple service providers need to route the datagram across one of several possible paths through each of their networks to a boundary point where the networks intersect. They do this according to information they have about where the destination IP address exists in space and how best to reach it.

This function is called routing, and it can be very resource intensive. Managing, controlling, and operating the routing function falls under the telecommunication management loophole. The processes of formatting, filling, ordering, and presenting IP datagrams to the ISP are user responsibilities that fall outside the transmission function.

DNS is one of the tools offered to users that enable them to fill IP datagrams with information. DNS provides a mapping of domain names to IP addresses, but it has no clue about where IP addresses actually reside. Hence, DNS is not a routing function. In reality, DNS is a general-purpose distributed database.

What DNS is Not

DNS is not a control function either, because it has no role in determining anything about the rate at which packets are put on the network and taken off. It also has no role in provisioning resources, load balancing, monitoring network health, or making datagrams move more efficiently.

DNS only provides the user with a binary number than must be placed in an IP packet for its successful transmission. Markey even admits this (although he’s confused about the number’s format):

Without DNS, a user would have to type a series of four numbers separated by periods into his or her browser to retrieve a website – an operation which, although entirely possible, would be inconvenient.

User convenience is nice, but it’s neither a transmission function nor a management function. It’s an added-value service bundled with IP transmission in order to make the ISP service offering more attractive to users, much like free bundled Netflix or free bundled anti-virus.

DNS is Offered by Third Parties

DNS is commonly but not exclusively provided by ISPs. Each ISP runs a DNS, and they all set up access to their DNS for you automatically when their systems provide you with an IP address.

But Google, IBM, and Cloudflare also provide DNS for free to anyone who wants it. You can easily configure the TCP stacks in your devices to use these DNSes: On a Mac, System Preferences->Network->Advanced->DNS. On Windows, Network and Sharing Center->Network Connections->Properties->IPv4->DNS Manual Config.

Or you can configure your router to use one of these services. IBM’s uses IPv4 address 9.9.9.9, Google uses 8.8.8.8, and Cloudflare is 1.1.1.1. Try one out and have a ball.

DNS Has No Impact on ISP Networks

It won’t hurt your ISP if you use a third party DNS because DNS has absolutely nothing to do with the management, control, or operation of an ISP network. It’s an added value service provided for your convenience.

Companies like Google want to be your DNS provider because doing so enables them to gather more information about where you go on the Internet. And that’s why they offer it for free.

If DNS had anything to do with Internet routing – as the severely misinformed Justice Scalia opined on his dissent in Brand X and the (even more) misinformed FCC claimed in the 2015 Open Internet order – you can be sure ISPs would be fighting third party DNS tooth and nail.

So Who’s Right?

As I said above: To prove its case, the RIF Order simply needs to demonstrate that broadband Internet service contains a measure of information processing beyond what’s necessary to operate a network. To prove his case, Markey needs to show that all of the information processing ISPs do in the course of providing Internet service simply facilitates the transmission of information across the Internet.

The RIF order mentions caching and DNS. As I’ve explained, these are services that go over and beyond simple transmission. Markey argues that caching  and DNS – services provided by both ISPs and third parties – are merely management and control functions in ISP networks.

That is not in fact the case as their functions are unrelated to network management and even more unrelated to network control. They’re added-value functions that are indispensable parts of a bundle of services than includes but is not limited to transmission.

Why Are These False Claims Even Made?

It’s obvious that Sen. Markey and his colleagues aren’t just trying to win a lawsuit. If that were the goal, they would have put together a stronger argument in this amicus brief.

I suspect they’re simply making a political statement: they want to protect hapless consumers from ISP abuse, as they’ve been doing since the ’90s. But this argument is wearing thin because very few people associate the major abuses of consumer privacy, safety, or convenience with DNS, caching, or broadband service of any stripe.

In reality, the Markey amicus doesn’t describe the Internet that we use today. It addresses an entirely different system that exists only in his mind. ISP service is a combination of transmission and information processing that serves the needs of the information society. And it appears to be serving those needs pretty darned well.