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Thursday, November 11, 2010

Will there be legal pitfalls of policy management?

It's a common enough theme that you should never post anything on a social network or web forum, that you couldn't deal with being openly available. We all know that security breaks down, APIs are opened up, privacy rules change.

But do people take that seriously enough in the offline world? Increasingly, secrets and dubious behaviour get revealed. The UK government suffered a huge scandal over the leaking of questionable MP's expenses claims last year. It resulted in resignations, arrests and helped to put the last administration out of power. A number of parliamentarians are now facing criminal charges.

Various other examples abound of businesses wilfully hiding the true facts behind their actions, mis-selling products or actually committing fraud. The true facts might come out years later, but authorities are often prepared to find the executives responsible. US companies' chiefs are bound by Sarbanes-Oxley rules as well.

So the question I have is whether all those tasked with implementing network policies really think through the ramifications of their actions? Are all decisions cross-checked with what has actually been sold to customers, or how it was marketed? Yes, there are often woolly clauses in contracts about operators being able to do necessary management... but would these stand up in court, if some actions appear to go beyond what is strictly "necessary"?

And at what point do any "secret" policies (eg degrading a competitor's services or applications) step over the line to being anti-competitive or fraudulent? Forget about simple abuse of Net Neutrality laws, which can obviously be debated & appealed until we're blue in the face. This is about actually lying to customers: hard-and-fast concerns in terms of consumer protection, for which the law tends to have big & pointy teeth.

I'm not a lawyer, so I don't really have a clear view. But then neither are many of the people actually *implementing* the business rules and policies at a network level.

I've never met anyone with a business card title of "Network policy manager", who understands everything from the operations of the network, to the customer's viewpoint, to the nitty-gritty of sales and marketing, to various angles of regulation, to competition and contract law.

If telcos or their vendors think they can "get away with" dubious policies that are not made transparent, they may get a nasty surprise some time in the future. Sooner or later policies will get leaked, or reverse engineered. Normal ups & downs of network performance will look like "white noise". Any unnatural patterns (by user, by app, by location, by time, by device, by OS etc) will stand out a mile, correlated with the right software and enough processing clout. Then someone will do a compare & contrast with the details of what they've been sold - and if there are material differences, trouble is likely.

Bottom line: don't enforce any network policies you wouldn't like to see published on the web tomorrow.

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