[bestbits] On "Technology Neutrality"

[Seth Johnson]

I'm sending this again with a changed subject line; see text replied-in below.

A couple of analyses of interest in this light, related to the example of WCIT:
http://internetdistinction.com/bricoleur/2012/12/13/35/
http://internetdistinction.com/bricoleur/2012/12/02/whats-really-up-at-the-wcit/

Seth

On Fri, Mar 6, 2015 at 8:06 PM, Seth Johnson <seth.p.johnson at gmail.com> wrote:
> Keep in mind that Nick makes frequent reference to the notion of
> "technology neutrality."  This is, at best, a sort of "last draft"
> principle.  That is, it is something that you do *after* you develop
> the policy, and your considerations should very much enter into the
> technical ways of things.  Then once you understand the principle that
> you wish to have at play, you may be able to preserve it while
> generalizing it to be independent of technology.  But when you do so,
> it should be staed in a way that preserves the principle, which is
> often technical in effect.  Most often, especially when you hear it
> from the US, it's just a principle used to say "don't change" -- and
> in international discussions, that often comes across as a
> conservative play to minimize the need to negotiate -- and who would
> want to push the point, huh?
>
> But in the meantime, the question is indeed whether the principle
> manifested in technical way you want things to work, needs to change.
> And that is a question about things like what the technology is (what
> it is doing, stated as abstractly as you please) and what its
> implications are; or about how general the technology is.  In any
> case, the complicated implications actually buried in that term
> "Technology neutrality" are very involved, and in fact the technical
> nature of things, the way it's to function, is always *so very much*
> the issue, and you have to get that down.  *Before* you just accept
> "let's be technology neutral."  And *before* you proceed to a sort of
> "final edit" step of describing the technical way of things generally
> in order for it not to be about particular technologies.
>
> Or one simple way to summarize it is, "technology neutrality" says
> zero about what the nature of policy should be in terms of its
> technical nature, what it's actually trying to set up to happen.
>
> Also one thing people are not generally cognizant of, is how much
> UN-related processes set terms in advance.  The implications for this
> so-called "principle" of "technology neutrality" in that light are
> very interesting in terms of how positions are projected regarding
> these international processes.
>
> The US projected a message to the world at large at WCIT, that they
> were resisting "expansions of ITU's scope."  But note: 1) the US did
> not actually advocate any changes at WCIT that would actually *affect*
> the ITU's scope -- based on the terms already set up.  i.e., the US
> said don't change the definition of telecommunications that the ITU
> had in the ITRs -- because the definition was "technology neutral" --
> but the definition was already stated as generally as the ITU needed
> to apply it in all the areas the ITU wanted to and had already been
> doing so.  2) This language of "resisting expansion" comes across to
> the outside world as if something had been accomplished, when really
> all it does is assure that things stayed the same.
>
> Similar things happen in many of these arenas.
>
> Without talking about the real issue here re telecommunications and
> information services, I hope everyone appreciates how little the
> notion of "technology neutrality" really says about actual policy --
> beyond just saying "we like to state the principle generally" -- and
> that comes *after* you determine the very technical issue of what the
> principle is.
>
> So don't take it too seriously.  You still have to do the policy
> development, and "technology neutrality" doesn't instruct you on that.
> I'm not even convinced it's anything to fuss over as a "final draft"
> notion either, but I'll go along so long as the actual policy
> development is alive.
>
>
> Seth
>
>
>
>
> On Fri, Mar 6, 2015 at 12:08 PM, Nick Ashton-Hart <nashton at consensus.pro> wrote:
>> For those of you looking for good definitions for these terms:
>>
>> For what it is worth, both of the 2015 definitions Erik quotes aren't very
>> good, in part because they're very un-technology-neutral (in many ways). The
>> second is worse because it uses the phrase "communication to the public"
>> which is a defined term in European and international copyright law which
>> has no place being used here and it also mixes together both the ISP and
>> services which use networks to provide Internet-based services to the
>> public.
>>
>> In the first, better to use the definition for "public telecommunications
>> transport service" from the WTO GATS Annex on Telecommunications: "“Public
>> telecommunications transport service” means any telecommunications transport
>> service required, explicitly or in effect, by a Member to be offered to the
>> public generally. Such services may include, inter alia, telegraph,
>> telephone, telex, and data transmission typically involving the real-time
>> transmission of customer-supplied information between two or more points
>> without any end-to-end change in the form or content of the customer's
>> information."
>>
>> As you can see, it is very broad (thanks to "inter alia."
>>
>> The definition of  "Telecommunications" from the annex is also useful:
>> "“Telecommunications” means the transmission and reception of signals by any
>> electromagnetic means."
>>
>> For those of you who support network neutrality, you may be surprised to
>> learn that the WTO has obligations for all WTO members that could easily be
>> argued support NN. It is a complex area (as members make commitments as to
>> how they'll apply these rules) but it is still really worthwhile to look at
>> this language from the annex (if you're wondering what a "Member" is, that's
>> the term used for WTO member-countries):
>>
>> (c) Each Member shall ensure that service suppliers of any other Member may
>> use public telecommunications transport networks and services for the
>> movement of information within and across borders, including for
>> intra-corporate communications of such service suppliers, and for access to
>> information contained in data bases or otherwise stored in machine-readable
>> form in the territory of any Member. Any new or amended measures of a Member
>> significantly affecting such use shall be notified and shall be subject to
>> consultation, in accordance with relevant provisions of the Agreement.
>>
>> (d) Notwithstanding the preceding paragraph, a Member may take such measures
>> as are necessary to ensure the security and confidentiality of messages,
>> subject to the requirement that such measures are not applied in a manner
>> which would constitute a means of arbitrary or unjustifiable discrimination
>> or a disguised restriction on trade in services.
>>
>> (e) Each Member shall ensure that no condition is imposed on access to and
>> use of public telecommunications transport networks and services other than
>> as necessary:
>>
>> (i) to safeguard the public service responsibilities of suppliers of public
>> telecommunications transport networks and services, in particular their
>> ability to make their networks or services available to the public
>> generally;
>>
>>
>> (ii) to protect the technical integrity of public telecommunications
>> transport networks or services; or
>>
>>
>> (iii) to ensure that service suppliers of any other Member do not supply
>> services unless permitted pursuant to commitments in the Member's Schedule.
>>
>>
>> (f) Provided that they satisfy the criteria set out in paragraph (e),
>> conditions for access to and use of public telecommunications transport
>> networks and services may include:
>>
>> (i) restrictions on resale or shared use of such services;
>>
>>
>> (ii) a requirement to use specified technical interfaces, including
>> interface protocols, for inter-connection with such networks and services;
>>
>>
>> (iii) requirements, where necessary, for the inter-operability of such
>> services and to encourage the achievement of the goals set out in paragraph
>> 7(a);
>>
>>
>> (iv) type approval of terminal or other equipment which interfaces with the
>> network and technical requirements relating to the attachment of such
>> equipment to such networks;
>>
>>
>> (v) restrictions on inter-connection of private leased or owned circuits
>> with such networks or services or with circuits leased or owned by another
>> service supplier; or
>>
>>
>> (vi) notification, registration and licensing.
>>
>>
>> (g) Notwithstanding the preceding paragraphs of this section, a developing
>> country Member may, consistent with its level of development, place
>> reasonable conditions on access to and use of public telecommunications
>> transport networks and services necessary to strengthen its domestic
>> telecommunications infrastructure and service capacity and to increase its
>> participation in international trade in telecommunications services. Such
>> conditions shall be specified in the Member's Schedule.
>>
>>
>>
>>
>>
>>
>> On 5 Mar 2015, at 08:19, JOSEFSSON Erik <erik.josefsson at EUROPARL.EUROPA.EU>
>> wrote:
>>
>> To supplement Amelia, here are Council definitions as elaborated in Brussels
>> on 2 March 2015:
>>
>> (1) “internet access service” means a publicly available electronic
>> communications service that provides access to the internet, and thereby
>> connectivity to substantially all end points of the internet, irrespective
>> of the network technology and terminal equipment used;
>>
>> (2) “provider of electronic communications to the public” means an
>> undertaking providing public electronic communications networks or publicly
>> available electronic communications services.
>>
>> What's still unclear to me (sorry) is whether anything in the TSM package
>> change and/or contradict the Telecoms Package (2009/136 + 140/EC)?
>>
>> Best regards.
>>
>> //Erik
>>
>> ________________________________________
>> From: bestbits-request at lists.bestbits.net
>> [bestbits-request at lists.bestbits.net] on behalf of Amelia Andersdotter
>> [amelia.andersdotter at piratpartiet.se]
>> Sent: Wednesday 4 March 2015 23:27
>> To: bestbits at lists.bestbits.net
>> Subject: Re: [bestbits] Net Neutrality - summary of FCC new rules
>>
>> Dear all,
>>
>> For completion, the European Union has defined "information society
>> services" in 1998 as "'2. "service", any Information Society service,
>> that is to say, any service normally provided for remuneration, at a
>> distance, by electronic means and at the individual request of a
>> recipient of services."
>>
>> See
>> http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31998L0048&qid=1425507396962&from=EN
>>
>>
>> This should be the amended act:
>> http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1425507490929&uri=CELEX:31998L0034
>>
>>
>> These texts have been mostly ignored since 1998, but re-emerged in the
>> network and information security discussions after 2013. Some of you may
>> be familiar with ongoing discussions of whether internet services should
>> be included therein (such as cloud services), due to the heavy
>> obligations laid on service providers to collaborate with public
>> authorities were that to be the case.
>>
>> best regards,
>>
>> Amelia
>>
>> On 03/04/15 18:15, Nick Ashton-Hart wrote:
>>
>> Dear Seth and others,
>>
>> With respect to the last sentence, WTO obligations are intentionally
>> designed to be technology neutral; otherwise, trade commitments would be
>> out-of-date the moment they were made.
>>
>> It is widely understood that the Internet, and many activities that take
>> place upon it as services, are covered by existing commitments.
>>
>> I recommend the writings of Hosuk Lee-Makiyama, perhaps the most widely
>> recognised expert in digital trade worldwide, many of which can be found
>> here:
>> http://www.ecipe.org/browse/?subj_subject=41&subj_category=ecipepublications&subj_year=&subj_order=recent
>>
>> As to classical definitions, the Telecom Reference Paper is probably your
>> best source, see here:
>> https://www.wto.org/english/Tratop_e/serv_e/telecom_e/tel23_e.htm
>>
>> I suspect you'll find that despite its age, the reference paper has stood
>> the tests of time quite well.
>>
>> On 4 Mar 2015, at 17:49, Seth Johnson <seth.p.johnson at gmail.com> wrote:
>>
>> That looks like ISIC.  Thanks.  I'm solid on what the terms mean re
>> the Internet and the US telecom policy, just looking for what "the
>> source" is at WTO so I can address what WTO's doing on their terms.
>> It doesn't seem that there's really a subject-specific cite because
>> WTO doesn't really deal with what these terms mean for the Internet.
>>
>> On Wed, Mar 4, 2015 at 11:25 AM, Jean-Jacques Sahel
>> <jean-jacques.sahel at icann.org> wrote:
>>
>> See this WTO December 2014 update on methodology regarding trade statistics:
>> http://webservices.wto.org/resources/meta/def_method_e.pdf and in
>> particular:
>>
>> (i) communications services includes telecommunications, postal and courier
>> services. Telecommunications services encompasses the transmission of sound,
>> images or other information by telephone, telex, telegram, radio and
>> television cable and broadcasting, satellite,  electronic mail, facsimile
>> services etc., including business network services, teleconferencing and
>> support services. It does not include the value of the information
>> transported. Also included are cellular telephone services, Internet
>> backbone services and on-line access services, including provision of access
>> to the Internet.
>>
>> [..] (v) computer and information services is subdivided into computer
>> services (hardware and software related services and data processing
>> services), news agency services    (provision of news, photographs, and
>> feature articles to the media), and other information provision services
>> (database services and web search portals)
>>
>> -----Original Message-----
>> From: bestbits-request at lists.bestbits.net
>> [mailto:bestbits-request at lists.bestbits.net] On Behalf Of Seth Johnson
>> Sent: 04 March 2015 16:12
>> To: Nick Ashton-Hart
>> Cc: Eduardo Bertoni; Marilia Maciel; &lt,bestbits at lists.bestbits.net&gt,
>> Subject: Re: [bestbits] Net Neutrality - summary of FCC new rules
>>
>> Where should I look for those definitions at WTO - information service vs
>> telecommunication service?
>>
>> I use the ISIC.  But that's a breakdown of industries, not of those two
>> categories.
>>
>> Not here:
>> https://www.wto.org/english/thewto_e/glossary_e/glossary_e.htm
>>
>> Or here (telecom, but not info service):
>> http://wtoterm.wto.org/multiterm/index.mto?locale=en
>>
>>
>> Seth
>>
>> On Wed, Mar 4, 2015 at 10:24 AM, Nick Ashton-Hart <nashton at consensus.pro>
>> wrote:
>>
>> These are all well-defined terms in the WTO agreement. Whatever you
>> may think of trade policy, it would be wise at least to consider
>> carefully these terms in the context of those definitions.
>>
>>
>> On 4 Mar 2015, at 15:44, Eduardo Bertoni <ebertoni at alumni.gwu.edu> wrote:
>>
>> Dear Marilia,
>>
>> Thanks for sharing this. I begun working on a short piece in Spanish
>> with similar goals: explain the impact of the new rules. The FGV
>> document is more than welcome.
>>
>> For the time being, my humble suggestion is this: for many people it
>> is not clear the difference between "information services" and
>> "telecommunications services". So I would suggest to explain that
>> difference. The concept of "common carrier" might help.
>>
>> Best
>>
>> Eduardo
>>
>> On Tue, Mar 3, 2015 at 6:17 AM, Marilia Maciel
>> <mariliamaciel at gmail.com>
>> wrote:
>>
>> Dear all,
>>
>> The researchers from the Center for Technology and Society of FGV in
>> Rio de Janeiro have prepared a concise summary of FCC new rules that
>> might be useful. The communities in Brazil are very focused on the NN
>> debate since we engaged in a public consultation to further regulate
>> the net neutrality principle enshrined in the Brazilian Civil Rights
>> Framework for the Internet (Marco Civil).
>>
>> The document will be updated as more information is made available.
>> Comments and suggestions are more than welcome.
>>
>>
>> https://docs.google.com/document/d/12RPZvyWKWxQwg116H8L8hjsoNZqsxEjwF
>> 7KBfF-gjqo/edit?usp=sharing
>>
>>
>> Best wishes,
>> CTS/FGV
>>
>> --
>> Marília Maciel
>> Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito
>> Rio Researcher and Coordinator - Center for Technology & Society -
>> FGV Law School http://direitorio.fgv.br/cts
>>
>> DiploFoundation associate - www.diplomacy.edu PoliTICs Magazine
>> Advisory Committee - http://www.politics.org.br/ Subscribe "Digital
>> Rights: Latin America & the Caribbean" -
>> http://www.digitalrightslac.net/en
>>
>>
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