Tim Berners-Lee–the guy who invented the World Wide Web–wrote the best explanation of why net neutrality and open source are important and closed systems like Facebook and iTunes are bad for the future of the Internet: Long-Live the Web: A Call for Continued Open Standards and Neutrality, Scientific American Magazine, December 2010. These two paragraphs from the article’s introduction summarize Berners-Lee’s thesis:
The Web evolved into a powerful, ubiquitous tool because it was built on egalitarian principles and because thousands of individuals, universities and companies have worked, both independently and together as part of the World Wide Web Consortium, to expand its capabilities based on those principles.
The Web as we know it, however, is being threatened in different ways. Some of its most successful inhabitants have begun to chip away at its principles. Large social-networking sites are walling off information posted by their users from the rest of the Web. Wireless Internet providers are being tempted to slow traffic to sites with which they have not made deals. Governments—totalitarian and democratic alike—are monitoring people’s online habits, endangering important human rights.
It will be required reading in Internet law, it’s addresses important topics, and its short. Why not read it now?
Here’s the First Commandment for the Study of Internet Law: What the Internet was is not what the Internet shall always be. A few more stories echoing the last post’s theme:
- France’s Constitutional Council rejected the legislature’s attempt to thwart digital piracy by terminating Internet access for alleged illegal downloaders. Under the legislative proposal “a newly created agency, acting on the recommendations of copyright owners, would have been able to order Internet service providers to shut down the accounts of copyright cheats who ignored two warnings to stop.” The Council held the proposal violated French constitutional principles including the presumption of innocence and freedom of speech.
- The on-again, off-again Italian trial of four Google executives on criminal defamation and privacy charges arising from Google’s failure to remove a YouTube video of the bullying of an autistic boy in Turin started again this week–and then stopped after one day, when a translator failed to appear. The prosecution claims “that Google should have acted to prevent the broadcast of the footage and that by failing to do so it breached the disabled boy’s privacy.” Google, in turn, claims it has no legal liability to monitor content posted by third-parties and that “seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open internet.” The charges, which carry potential prison terms of three years, underscore the profound difference between U.S. and European Union privacy law and the importance of ISP liability immunity provided by Section 230 of the Communications Decency Act.
- NetChoice published its Internet Advocates Watchlist for Ugly Laws–“iAwful” to publicize “ the top ten worst proposed laws affecting ecommerce and open communications. . . . [The list’s] primary focus is on laws that will affect business, particularly by increasing taxes or dictating standards and practices that the group thinks are unworkable.”
This article from cnet–Net neutrality: An American problem? presents the views of three executives from Australian ISPs who argue that net neutrality is a problem of the typical U.S. ISP unlimited-use business model, not bandwidth. (The article defines net neutrality as opposition to the practice of ISPs to tier or establish priorities for content). Their thesis is borne from the ISP business model dictated by Australia’s “unique geography:” “[A]ll ISP’s in Australia . . . have got used to pay-as-you-go and have handed those pay-as-you-go principles on to their customers.” In other words, the more bandwidth an Australian Internet user consumes, the more her pays. It’s an interesting take, both for what it says and what it omits. The goal of those who advocate net neutrality in the U.S. as a matter of policy is not unlimited bandwidth for a fixed price. The goal is the perpetuation of an open Internet architecture–not for the entire Internet but somewhere, somehow–that continues the original Internet’s non-hierarchical, no-permission-required, everyone-is-a-publisher ethos.
Last year Comcast slowed BitTorrent traffic on its network because, it said, BitTorrent file transfers consumed inordinate bandwidth. Advocacy groups Free Press and Public Knowledge complained about the practice to the F.C.C., presenting one of the first legal challenges to violation of the principals of net neutrality, the concept that all Internet traffic should be treated the same. Net neutrality is a core value embodied in the original architecture of the Internet, and its preservation is considered by many to be essential to maintaining the Internet’s vitality. On Friday the F.C.C. ruled 3-2 against Comcast and ordered it to cease blocking BitTorrent traffic by the end of the year. F.C.C. Commissioner Kevin Martin said after the ruling ““We are preserving the open character of the Internet. . . We are saying that network operators can’t block people from getting access to any content and any applications.” Saul Hansell reported in the New York Times the dissent, among other things, argued “that Comcast’s systems were a legitimate method of managing the capacity of the network and not an attempt to disadvantage rivals.” Comcast is expected to appeal the ruling, which may spur Congress to enact legislation protecting net neutrality. Hansell reports that “[c]uriously, representatives from other telecommunications companies praised the decision, even though they objected to the commission meddling in how they manage their networks. They said they would prefer such rulings to legislation from Congress . . .” because legislation would likely provide the telecoms with little wriggle room. The F.C.C. decision, on the other hand, deals only with Comcast’s specific BitTorrent blocking and does not establish broad precedent.
Congressman Ed Markey, chairman of the House subcommittee on telecommunications and the Internet, this week introduced a bill titled The Internet Freedom Preservation Act that seeks to maintain the open architecture of the Internet. Net Neutrality is a buzzword that means different things according to who wields it. My use is consistent with Markey’s. Net Neutrality means keeping some portion of the architecture of the Internet–or some portion of the architecture of each layer of the Internet–open and free from discriminatory treatment of access and data. In other words, maintain that original architecture that allows anyone to get online, establish an Internet presence, establish connections with other networks, and publish and receive information without interference. To others, such as the US Telecom Association, net neutrality means government regulation of Internet architecture. They want the ability to treat some data–such as movies streamed from their servers to their paying customers–preferentially, which in turn means giving lower priority to other data. They argue that Internet architecture has always been market-driven and government should stay out of its design. One irony is that some early-Internet pioneers, for whom government regulation of anything network related was anathema, support the goals of Markey’s bill. Another is that the original design of the Internet was research-driven, not market-driven, certainly not in any commercial sense of “market.” The Internet was created by the U.S. government to enable collaboration among military and academic researchers. Unrestricted data flow is in its DNA. It is disingenuous to argue that the market should continue to govern its design, as if the market was always the invisible hand shaping its development. It wasn’t.
The U.S. Department of Justice yesterday issued a press release describing its position on “net neutrality”–it’s against it–in response to an FCC Notice of Inquiry into broadband practices. The money quote:
[P]recluding broadband providers from charging content and application providers directly for faster or more reliable service “could shift the entire burden of implementing costly network expansions and improvements onto consumers.” If the average consumer is unwilling or unable to pay more for broadband Internet access, the result could be to reduce or delay critical network expansion and improvement.
The DOJ cited the “common and often efficient” practice of “differentiating service levels and pricing,” pointing to the U.S. Postal Service’s range of package delivey services and prices.
The problem for advocates of net neutrality is explaining why it is important, against a backdrop of pricing and service differentials in air travel, cable television access, HOV lanes, etc., that all Internet traffic be treated the same. I’ve discussed net neutrality many times in class and students often don’t understand the fuss. They say “I can take the Acela or the regular Amtrak train from Boston to New York; the Acela is faster and costs more. What’s the big deal about paying more to deliver or receive content more quickly/reliably?” Compounding their lack of comprehension is that after decades of taking the position that government should leave the Internet alone, net neutrality advocates want Congress to mandate that the Internet’s content- and price-neutral processing of data be fixed by law. They don’t understand why laissez-faire is now undesirable.
What gets lost is that the Internet became what it is precisely because it’s original architecture treats all information the same, whether it is the cure to cancer, Paris Hilton’s shopping list, or pictures of my sore toe. The Internet exploded into public consciousness and practical importance because anyone can connect to it without permission, publish content with little or no barrier (let’s leave China and Saudi Arabia out of this for the moment), and access everything that is available online on the same footing as everyone else. Differential service and pricing threaten to change the ground from which the Internet grew. When it costs $.41 to send a one-ounce letter by first-class mail, $4.60 to send it by priority mail, and $14.15 to sent it by express mail it’s a losing argument to oppose a tiered Internet because one might have to pay more to acquire downloads of Heroes from NBC. Net neutrality advocates must providing succinct and compelling policy reasons for its preservation.
Mark Cuban’s testimony before the House Subcommittee on Telecommunications and the Internet (see story) echoed a point about net neutrality that students made in a recent Internet law class, which is that increasing the amount of high-speed bandwidth should moot the need for legislation to mandate open Internet architecture. The premise for tiered, priority delivery of designated Internet content (e.g. streaming video) is that because the network treats all information as equal and network bottlenecks interfere with consistent high-quality delivery, then certain traffic should have higher priority. If every user has a high-speed broadband connection then the bottlenecks disappear and the need to favor delivery of some packets over others evaporates. Said Cuban “[t]his issue goes away completely if bandwidth constraints go away . . . It’s like our highway system: If you have 100 or 1,000 lanes, there’s no need for an [high-occupancy vehicle] lane.”
The current problem, and the reason not to be complacent about the issue of net neutrality, is that high-speed broadband access is hardly universal. Fiber optic Internet has been available in my Boston suburb for less than a year. Its pricing is competitive with coaxial broadband yet most of my neighbors have not switched. Many users, in the greater Boston area and beyond, do not have the option of fiber optic broadband connections. As long as coax and DSL are the primary means of broadband access, priority delivery of content and net neutrality will be issues.
The Berkman Center’s June 2006 Filter contains an article titled Net Neutrality, Tech Mandates, and Pop Culture in which Wendy Seltzer argues that net neutrality is a necessary ingredient for the creation of “public created culture.” She cites a number of forces that threaten the creative environment including limitations on hardware, restrictive content licensing agreements, and erosion of Internet neutrality. She notes that changes in technology and law that protect current business models can cause collateral damage: “[D]igital editing and conversion technology is dual-use. Copying “Lost” might be infringement, or it might be a political statement, mixing the mysterious island footage with that of a bumbling political leadership . . . If entertainment companies get their wishes, new hardware and software won’t be able to generate that kind of statement.” (Emphasis Added)
Thinking about how to teach this subject I wondered: How does one convey the issues lumped under the “net neutrality” label to those who don’t read The Filter? What does it take to interest everyday Internet users? A start requires answering questions raised by this excerpt:
1. What specific hardware restrictions, content licensing terms, and current or proposed legislation would eliminate creation of this type of statement?
2. How, specifically, do/would they affect the creative environment?
3. How does Internet neutrality foster the creative environment?
4. Why does it matter whether someone can create a “Lost” mashup? What values does such creativity serve?
I’m not critical of Seltzer–obviously her short article is written for a specific audience that likely has answers to these questions.