[governance] IGP Alert: "Net Neutrality as Global Principle for Internet Governance"

[Dan Krimm]

I'll bite, Vittorio.  :-)

First, the principle of "net neutrality" has deep roots, emerging out of
British Common Law: it was originally called "common carriage" and it
applies to all sorts of transport systems with network topology that
creates gatekeeper bottlenecks (originally, ferries over rivers, extended
to toll bridges, then to telecommunications, etc.).  The idea was that it
was unfair (and bad for the economy) for gatekeepers to leverage their
monopoly control over constrained points of public transit in any way that
involves discrimination between different people who need transit.

In cases where the Internet rises to the level of "public utility" in its
importance to society, these principles apply to the Internet.

There are different policy strategies to accomplish this goal, but the goal
is fairly well defined in principle, though translating the principle to a
specific platform takes some careful thought, as we've seen with the
Comcast/BitTorrent debacle, and the tradeoff between "network management"
and "overbuilding" (I would personally object to the term "overbuilding"
since my idea of a properly built system is one that can handle peak
traffic load without congestion).


Okay, on to your "usual question" quoted below (note: I haven't read the
paper yet either):

At 6:20 PM +0100 11/6/07, Vittorio Bertola wrote:

>> The
>> paper defines network neutrality as the right of Internet users to
>> access content, services and applications on the Internet without
>> interference from network operators or overbearing governments.
>
>Ok, I've not read the paper yet, but here is the Usual Question: let's
>say that the government of XYZland wants to prohibit access to child
>pornography content to its citizens, would that be inhibited by your
>definition of network neutrality?


If a given nation can arrive at a political consensus that it is proper
policy to prohibit "child pornography" (doesn't seem too difficult, though
drawing the line between what is and isn't "child pornography" may be
trickier than you think -- it's not a well-defined technical problem with a
quantitative, structural definition), then that sovereign nation has the
legal right to do so and that decision will have a lot to do with that
nation's cultural norms about morality vs. freedom of expression.  The
point of prohibiting child pornography is not so much the "information
content" that is created and distributed, but rather the abject
demonstration of child abuse involved in producing that content, and so
what such laws really are getting at is prohibiting that child abuse.
Secondarily they are about establishing social norms that prevent
encouragement of child abuse, but what do you do about "simulated" child
porn that does not involve the actual abuse of real children?  It's a
fuzzier argument, now...  Anyway, see how we've gotten into subjective
matters of politics and public policy?  It's no longer a technical issue.

In any case, making a law to prohibit something doesn't necessarily
determine what is the best *method* to enforce such a prohibition.  Do you
do it via *prior restraint*, or *ex post enforcement* and under what
standard of *proof*, what standard of *harm*, what standard of *public
versus private* access, and what definition of *classification*?

In the US, just as an example (though UDHR Article 19 is a globally agreed
principle), the First Amendment has a certain priority over other laws in
the Constitution.  In short, free expression is given a *default* standing,
and in situations where freedom of expression is abused and creates
conflict with other laws, there is a much higher judicial standard that an
opposing argument must rise to in order to carve-out from the F.A. in a
specific case (it still doesn't create judicial precedents for cases that
are not *very* similar).

So in general, ex post enforcement is better than prior restraint, because
it really isn't possible to pre-determine all of the parameters of any and
all possible "use cases" when it comes to abusive expression.  In the US,
prior restraint is a no-no, except for some really contentious situations
that remain controversial within the US, even though some case law has been
established as fairly long-standing precedent (the George Carlin "7 dirty
words you can't say on the radio" case is one example).

So, to get back to your question, it's better to have this stuff enforced
on an ex post basis rather than via some form of prior restraint, because
we will likely never be able to draw clear lines that can cover all
possible cases.

So, then how does this relate to net neutrality?  Prior restraint by
networks would violate net neutrality.  Net neutrality properly opposes
prior restraint by network operators, but does not inhibit ex post
enforcement of content creators.

People who say that there should be prior restraint of expression on the
Internet are ignoring these very difficult, subjective, and persistent
public policy issues that cannot be pre-determined in the same way that
objective technical problems can be more well-defined in advance.

And in all such cases of specific, narrow carve-outs from the default
position of freedom of expression, since each nation is likely to draw the
lines slightly differently from others, having individual nations do it for
themselves is a lesser of evils compared to having some unified global
authority make such decisions for the whole world at once.  (If there is
any controversy in a single nation about drawing the lines, then that
nation may indeed be oppressing part of its own population, and an even
better result might be found by allowing local communities to define these
standards for themselves.  In general, it's better to localize these
decisions as much as possible.  Power to the edges, like TCP/IP itself.)


I'm sorry, I suppose you thought you were asking a simple question.  :-)

The distilled (if not simple) answer is that laws to establish prior
restraint on data transport (if that's what you mean by "prohibit access")
would violate net neutrality, but laws to prosecute carve-outs from freedom
of expression ex post ("prohibit distribution") would not.  Under ex post
rules, common carriers are not liable for distribution of unlawful content
over their platforms.  This is critical.

You wouldn't want the phone company to be liable for criminal conversations
conducted on its voice network, would you?  That would require the phone
company to listen in to all of your private conversations, and to prohibit
you from conducting any conversations that were deemed to address illegal
subjects.  Pretty frightening.

Net neutrality (common carriage) is basically the same policy principle
subsequently applied to the data network.

Punish the content provider, not the network operator, and don't impose
pre-filtering on the network itself, except perhaps at the edges (not on
the pipes).

Dan

PS -- The US ran into some dangerous policy in the last few years when the
FCC designated broadband ISPs as "information services" (i.e., content
providers like cable TV systems) rather than "telecommunications services"
(i.e., network operators like telephone systems).  The Supreme Court (in
the "Brand X" case in 2005) used a procedural precedent (i.e., a technical
judicial jurisdiction argument) to say "it's not our job" to decide this
(basically they said the FCC gave a "rational basis" for their ruling -- a
very low standard of justification), and punted it back to legislature,
which is why it's such a hot-button political issue in the US these days.

Bottom line: net neutrality is not just a technical issue, although its
implementation has technical parameters.  It is a full-fledged public
policy issue of great general importance, based on the general principle of
common carriage, which is a fundamental principle of fairness and
nondiscrimination in society at large.

Without common carriage in the information market, it will be difficult to
protect competition in the information market.  And without competition in
the information market, the Information Society is lost as a force for
democracy and becomes a tool for oppression by elite powers.  There may not
be a more important or fundamental principle addressing the Internet.
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance