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Publications
Net Neutrality: Opposing Sides Divided Over Meaning, Impact - Part 1
San Francisco Daily Journal
Net neutrality - sometimes referred to as net regulation - is just as difficult to accurately define as it is to enforce, which begs the question: what exactly is it? The short answer: it depends on whether you are for it or against it.
Fundamentally, net (short for network) neutrality is the idea that the Internet works best when Internet Service Providers (ISPs) deliver every Internet site's traffic without discrimination. At its core, net neutrality demands ISP equality in the treatment of consumers who pay for the same or a greater quality of service, permitting peer-to-peer communication in any platform of the consumers' choosing, regardless of the amount of content transmitted or bandwidth utilized. In the recent past, the Federal Communications Commission (FCC) has embarked on a campaign to enforce this principle of equality as if it were a constitutionally guaranteed fundamental right. Largely fought by those holding allegiance to big business and the notion that government regulation should be minimal in the private sector, the debate about net neutrality has gotten muddled. This two-part article seeks to act as a legal primer on the issue, providing a working definition of the concept and placing it into a manageable historical context. The first part will define the issue and present examples to illustrate the scope of the debate. The second part of the article will describe aspects of governance that complicate the issue, including current collective efforts to achieve net neutrality compliance.
The Internet is a global system of interconnected computer networks that serve billions of users worldwide. It is a network of networks that consists of millions of private, public, academic, business, and government networks of local to global scope that are linked by a broad array of electronic and optical networking technologies. The Internet has no centralized governance in either technological implementation or policies for access and usage; each constituent network sets its own standards. Only the overreaching definitions of the two principal name spaces in the Internet, the Internet Protocol address space and the Domain Name System, are directed by a maintainer organization, the Internet Corporation for Assigned Names and Numbers (ICANN).
Vinton Cerf, considered a "father of the Internet" and co-inventor of the Internet Protocol, Tim Berners-Lee, creator of the Web, and many others have spoken out in favor of net neutrality, arguing that it is necessary to protect fundamental freedoms. Opponents of net neutrality, such as U.S. Rep. Bobby Rush (D-Ill.) characterize its regulations simply as "a solution in search of a problem," arguing that broadband service providers have no plans to block content or degrade network performance. In spite of this claim, certain ISPs have intentionally slowed peer-to-peer communications. Still other companies have acted in contrast to these assertions of hands-off behavior and have begun to use deep packet inspection to discriminate against peer-to-peer, File Transfer Protocol and online games, instituting a cell-phone style billing system of overages, free-to-telecom "value added" services, and bundling. (Anderson, Nate (July 25, 2007) "Deep packet inspection meets 'Net neutrality," CALEA - Ars Technica) Critics of net neutrality also argue that data discrimination of some kinds, particularly to guarantee quality of service, is not problematic but is actually highly desirable. (en.wikipedia.org/wiki/Network_neutrality)
Consider a network consumer who desires to connect with another utilizing some form of Voice over IP (VoIP), or a Skype application. Though the iPhone supports some 65,000 applications, presently AT&T obstructs its smartphone users from downloading and communicating through Skype, while Verizon does not. As a result, an iPhone user who seeks to communicate via VoIP with a BlackBerry user has to find an alternative Internet-based application that neither ISP restricts. Consider next the experience of these two users as they run similar searches through one of the many popular search engines resulting in routine delays and unreliable information, or the experience of a user unable to download BitTorrent at acceptable speeds. These experiences could be the result of an agreement between the network and the software application manufacturer that effectively forces users to deviate from their preferred search engine in order to facilitate the achievement of a faster result.
In these examples, the ISP takes the position that certain Web sites permit the transmission of high-volume content, which effectively limits the ability of all other consumers in the network to engage in peer-to-peer communication, thereby causing others to experience delays. Accordingly, ISPs limit interruption to the masses by simply hindering access to sites identified as problematic. Technologically savvy users may observe the slower connection time as the result of a limitation in bandwidth-a problem the user may solve by simply paying its ISP for greater bandwidth capabilities.
Described by Ben Scott, formerly of Free Press, as "the elixir of consumer choice in competition that we have long been awaiting to see firmly applied in the Internet space," net neutrality is offered as a solution to these sorts of market-based problems. (The Brookings Institution Discussion on National Broadband Plan, Panel Discussion, Sept. 21, 2009. Available at www.cspan.org/Watch/Media/2009/09/21/HP/A/23402/The+Brookings+Institution+Discussion+on+National+Broadband+Plan.aspx)
Neutrality proponents demand that telecom companies stop imposing tiered service models in order to control the pipeline and remove competition, create artificial scarcity, and oblige subscribers to buy otherwise uncompetitive services. In the examples above, net neutrality will force ISPs to give users unfettered access to the same applications available to users on other networks when the users have paid for the same quality of service, i.e., AT&T must not obstruct the ability of its users from accessing applications such as Skype. Furthermore, ISPs must themselves solve any concerns about bandwidth usage that has created the perceived need to restrict access to applications that support the transmission of large amounts of content. Neutrality demands that the ISP increase its bandwidth capabilities that can be provided to its users but must not then pass off to the user an additional cost to access file sharing sites such as Napster, for example. Proponents of network neutrality believe contractual agreements between ISPs, networks and application manufacturers that result in the passing off of costs to the user should be deemed impermissible.
Opponents believe negating the ability of one to enter into a contract with another where there is no information asymmetry is contrary to our open-market system, which ascribes to the notion of free association. Relating to the examples above, opponents of net neutrality insist that the lack of agreement between AT&T and Skype, for instance, should empower end-users to consider the applications that are most important to them when the user signs on with an ISP. Upon contemplation of this point of view, what is clear is that it wholly fails to consider applications that have yet to be created, much less those in their infancy.
As explained by noted net neutrality skeptic Rep. Rick Boucher, D-VA, Communications, Technology & the Internet Subcommittee chairman, concerns about net neutrality are that broadband providers should be able to create their own content and deliver that content to their customers in the manner the provider deems best. Verizon has available a FiOS television service. Similarly, AT&T offers its users access to select television content and music over its IP format. Although both service packages are starkly different, both ISPs are now in direct competition with the cable industry. Opponents of net neutrality believe this competition is both reasonable and appropriate as it forces all service providers to present the most attractive package to end-users so as to maintain a sense of relevancy in the market. To enforce net neutrality, then, would be to negate the ability of broadband providers who seek to manage and deliver content in a way that is proprietary so that it reaches the customers who subscribe to it.
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