Future Regulation of the Internet

Dear Reader,

Laurie is busy with work on SABIP and apologises for the radio silence. He'll be back and blogging soon but in the meantime, I'm afraid, you'll have to make do with me...

The correct title for this post is in fact "Net Neutrality (what is it and why should I care)"... but please don't run away.

I admit it's a cheap trick - but one that I was caught by recently when I went to a lecture given by Chris Marsden. I turned up to the friendly sounding "Future Regulation of the Internet" only to be told that in fact the seminar was on "Net Neutrality 'Lite': The European Approach".

  If it weren't for the free cakes, I would have left.

But I'm glad I stayed. Net neutrality is one of those terms I often hear people use but never quite fully understand. For me, it's in that category of frightening webby concepts including folksonomies and convergence. What's more: it's about the pipes and I'm really more interested in the content. Chris managed to get me interested in it, though, and in reading around the subject after the seminar, I am on a quest to get to the bottom of it because it is clearly something that people get evangelistic about. For example, the US Federal Communication Commission has recently launched a site for the preservation of a "free and open internet", advocating net neutrality principles (see here for Mashable's commentary on the issue).

The reason that the term 'net neutrality' causes me such consternation is that it seems to mean different things to different people. Google explains it as "the principle that Internet users should be in control of what content they view and what applications they use on the Internet" (it would - it is, of course, a mere facilitator). Techies describe it as "the idea that every packet of information...carries equal importance. That is, a message from me moves no faster or slower over the Internet than a message from the Queen." Chris defined it as the principle that there is no ISP interference with the packets of data; i.e. that ISPs do not open packets to see inside and that they do not discriminate between packets.

Combining these, I understand net neutrality to be the principle that the Internet is a method of communicating packets of information from one end to another which does not: (a) investigate the packets; or (b) discriminate between the packets. This seems to me to be similar to Google's argument in the case I recently blogged about: i.e. Google, like the Internet, is a mere facilitator and is neither responsible for the content it carries nor obliged to monitor the same (the latter principle is enshrined in Art.15 of the E-Commerce Directive).

Apparently, ISPs breach the principle of net neutrality (and, possibly, their contracts with their subscribers) by advertising 'unlimited broadband' and then slowing different types of traffic to suit them. They may do this for practical purposes ('traffic management'), for selfish purposes (to save money), to get the competitive edge (to promote their own bundled services over those offered by third parties), out of the goodness of their heart (by blocking spam)...the list goes on. The interesting thing is that when an ISP selectively slows traffic, it is extremely difficult to tell if this is because of a legitimate attempt to avoid congestion, or because the ISP has underprovisioned (i.e. advertised speeds faster than it is capable of achieving all of the time), or a deliberate attempt to do so for a particular purpose (and then there are problems with evidencing that purpose). So far, so conspiracy theory!

Putting that can of worms aside, what interests me are the overarching principles - the way the net neutrality principle interacts with the fact that certain controls are necessary to ensure protection of consumers, content providers and other policy concerns. It is not a great leap to draw parallels with the freedom of expression -v- protection of privacy debate, or the free -v- paid-for content debate.

Also, from a legal perspective, as we often mention in our posts, offline laws apply in the online world and no amount of web-specific principles can undermine that. So the Data Retention Directive means that internet intermediaries have to keep records of communications, and the exemptions for ISPs in the E-Commerce Directive are defeated if the ISP has not observed notice and take down. I think this is what Chris meant by net neutrality 'lite'. The principle of net neutrality is all well and good but must in certain circumstances be diluted by regulations (which reflect real and practical concerns) in order to find the middle ground wherever the principle of net neutrality clashes with other equally important principles (e.g. privacy, crime prevention, consumer protection).

As always, this is a small taster of the whole debate and please forgive me any inaccuracies - it was my first foray specifically into this area. There are consumer protection, competition and so many more issues involved. But I hope that if you, like me, secretly baulked at the mention of net neutrality, you'll have found that this taster whets your appetite.

Yasmin Joomraty

Laurence Kaye Solicitors

Comments

[anon]

http://blog.ericgoldman.org/archives/2009/05/ninth_circuit_m.htm
You might want to take a look at some section 230 (the US liability exemption) material; the above piece by goldman is a little deeper than pure intro, but not by much... you'll get the gist of the scope of 230. The ISP that climbs in bed with comcast risks losing this exemption, imo.