Network neutrality: laissez-faire approach or not?

AuthorWong, Rebecca

ABSTRACT

The paper discusses the subject of network neutrality from an American and European legal perspective. While acknowledging the plethora of literature on network neutrality, it argues that regulation in favor of network neutrality should not be confined within the U.S./European borders, but rather network neutrality should be addressed from a global perspective through the OECD/WTO. The article will begin by defining network neutrality before discussing the technology underpinning network neutrality. It will compare the different legal approaches adopted by Europe and the United States to the regulation of network neutrality. In Europe, there is an existing electronic communications regulatory framework, which can be used to address the network neutrality problem. In particular, this article will examine the Access and Interconnection Directive, arguing that further regulations at the European level are not necessary given the legal infrastructure. The main concerns arising from the United States' unilateral stance is whether it will cause a digital divide in the electronic communications market. Legislation in the area of network neutrality is not perceived as necessary in Europe. Any regulation at a European level would disrupt the existing electronic communications framework. In the United States, network neutrality appears to be the only viable legal path. Network technology violates the spirit of the U.S. Wiretap Law and several State specific privacy laws. The article will conclude that the United States' stance to adopt network neutrality legislation will cause a seismic shift in the way we view technology.

... Analysis shows that calls for network neutrality regulation are justified: In the absence of network neutrality regulation, there is a real threat that network providers will discriminate against independent producers of applications, content or portals or exclude them from their network. This threat reduces the amount of innovation in the markets for applications, content and portals at significant costs to society.

Van Schewick, 2005. (1)

There is no indication that network operators have any plans to gather and store personally identifiable information at the router level but policy makers should be aware that the widespread adoption of packet shaping technologies at least gives operators the ability to flag packets based on the payload (contents) of the packet and the IP address of the user. This could, in turn, raise fears that data could be easily processed for purposes unrelated to traffic routing. The privacy issues may be complex under a multi-tiered Internet structure and could warrant particular attention by privacy specialists.

OECD, Internet Traffic Prioritisation: an overview 2007. (2)

  1. INTRODUCTION

    While network neutrality has been the subject of heated debate in the United States, the topic has received far less attention on a global scale. In this paper, the authors explore network neutrality from a European and U.S. standpoint with particular focus on the international implications arising from the unilateral stance adopted by the United States in legislating on network neutrality. The arguments in favor of network neutrality regulation should not be confined to the United States, as they apply to other nations as well. In this paper, the authors address some of the arguments advanced in favor of network neutrality including consumer protection and the need to prevent companies and countries from blocking their network services to consumers. Is it simply a power struggle between the applications and content providers fighting to use the same network and determine who governs? Some of these questions have already been debated by legal scholars such as Wu and Yoo. (3) We will, however, explore the imbalance that may be created by network neutrality legislation introduced in the U.S. in preventing essential services such as emergency responses, 911 calls, and VoIP connections from being efficiently delivered because of the potential costs that may apply.

    This paper is divided into four sections. The first section will examine the notion of network neutrality as defined by Wu and Berners Lee and define the scope of "network neutrality" as it relates to this paper.

    The second and third sections will discuss the current European and U.S. legal framework. The differences in the network infrastructure are examined in light of the contrasting legal framework in the United States and Europe, specifically, the lack of a sufficient legal framework in the United States as opposed to the European Framework and in particular, the Access and Interconnection Directive. Although not expressly provided, implicit within the Access and Interconnection Directive is the network neutrality principle, a conclusion that is discussed by the provisions dealing with significant market power (SMP) and non-SMP operators.

  2. "NETWORK NEUTRALITY"

    The term "network neutrality" can be regarded as a misnomer when applied to the Internet, since the Internet, or at least its use (in monetary terms), is not free. Several definitions exist of network neutrality. Perhaps the most well known is given by Professor Wu: (4)

    Network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally. This allows the network to carry every form of information and support every kind of application. The principle suggests that information networks are often more valuable when they are less specialized--when they are a platform for multiple uses, present and future. (5) Sir Tim Berners Lee, creator of the world wide web, however, defines network neutrality as follows: "If I pay to connect to the net with a given quality of service, and you pay to connect to the net with the same or higher quality of service, then we can communicate at that level." (6)

    In this paper, the term "network neutrality" applies to the provision of Internet applications/services by Internet service providers, in the context of wireless (7) and wired communications. (8) Companies and even countries should not block access to the use of services/software applications that end users (consumers) would like to be offered. It is preferable to use the term "nonprioritization or non-discrimination of communications" between Internet service providers and content/application providers on the Internet.

    According to Yoo, the U.S. proposals on network neutrality come down to this:

    Network neutrality proposals are aimed at preserving competition in applications and content, which are those portions of the industry that are already the most competitive and the least protected by entry barriers.... Instead, the real focus should be on the impact network neutralitoy regulation would have on the competitiveness of the last-mile. (9) Is it simply a matter of preventing discrimination between ISP providers and content providers accessing the Internet (wireless or not)? If so, what are the implications for the privacy of users' browsing activities and, more specifically, the privacy of communications (10) on the Internet be it within Europe or the United States? This is explored later.

    A further point is that if network neutrality regulation is embraced, enforcement will be a difficult issue. How effective will enforcement be? This will be a matter for the national regulatory authorities and in particular, those that monitor access to each Internet service provider. While legislative measures can be beneficial, it can have the effect of being cumbersome upon enforcement authorities such as the FCC and telecommunication authorities (OFCOM in the United Kingdom, etc.) which do not have the sufficient resources to monitor how networks can block access. (11)

    How do regulators deal with Internet Service Providers who operate outside of, and block applications from the United States? Irrespective of whether this is a European problem, networks are not confined within a finite border. (12)

    The existing literature has focused on the main arguments that have been asserted in favor of network neutrality regulation in the United States. This can be summarized as follows:

    CONSUMER CHOICE: The underlying rationale submitted by authors such as Wu and Lessig are that companies who block the service are depriving or degrading the quality of services that can be passed on to the consumer. Wu argues that "blocking can keep a better or cheaper product (VoIP) from coming to market at all, and often it can prevent such products from being offered in an effective form." (13) To give an example, Skype had recently applied to the Federal Communications Commission to rule that consumers should be entitled to attach whatever mobile devices they can on their mobile phone networks (Carterfone rules). (14) Although this was not shared by the cell phone industry, CTIA, it illustrates that consumers could effectively be prevented from installing VoIP clients by phone providers (whether this could be circumvented technically is another question).

    There is also the PUBLIC AND PRIVATE PROPERTY ARGUMENT: the broadband connections are public resources and should be used to convey data irrespective of where it originates. In other words, "a bit is a bit, whether it is part of someone's e-mail, an Internet voice over Internet conversation or as part of a pirated movie." (15) Arguably, consumers are entitled to resources on the Internet without interference from broadband providers.

    PRIVACY OF COMMUNICATIONS (16): This subject, which seems to be neglected as network neutrality regulation, has often been associated with the prevention of anti-competitive behavior by ISPs/broadband providers that block access of their networks to content providers. Thus, network neutrality regulation aims to present a level playing field for content and application providers with modern and...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT