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

[Dan Krimm]

Milton has already said a lot of what I would say.  Inevitably I have
additional thoughts building off of his earlier reply:


At 11:15 AM +0100 11/7/07, Vittorio Bertola wrote:
>Dan Krimm ha scritto:

>> Bottom line: what Milton said.
>>
>> In my own words:  "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."  [And to be clear,
>> net neutrality is a form of common carriage, which has very deep roots in
>> English Common Law.]
>
>Would carriers be liable if they knew?
>For example, let's say I am a carrier and one of my users hosts nazi
>stuff on a website at home, connected through his DSL connection.
>Someone comes and warns me about that. Should I be allowed to terminate
>the contract? Would I be liable if I do? Would I be liable if I don't?

Common carriers are generally entirely free of any liability for carriage,
and free of any responsibility to know what they are carrying, beyond a
very minimal technical prerequisite (like: a car, or a data packet, to
specification required for the transport platform).  The quid-pro-quo here
is that in return for being free of liability, a common carrier *absolutely
must not discriminate* among those wishing to be carried.

What you're talking about above is a different component of service: web
hosting as opposed to data transport.  While a single company may offer
both services, many only offer one or the other, and the two services can
and should still be distinguished by law and policy.  Common carriage
policy applies to services, not firms.

Net neutrality is aimed mainly at data transport per se.  Web hosting falls
more into the category of publication support services (which, frankly, is
a much more competitive market in the US than data transport, especially
*last-mile* data transport), and publication support is more of a gray
area.  That gray area in web hosting should not dilute the common carriage
principle as it applies to data transport services.



>And where do platform for user-generated content fit in your plan? Would
>Youtube be responsible for illegal videos? (I'm not thinking of IPRs,
>rather of racist videos, violent videos etc.) At least after getting
>proper notice? From which authority?

As you are no doubt aware, YouTube gets lots of takedown notices on the
basis of IPR claims (and on occasion they get "put up" notices in return,
claiming that the takedown notices were unwarranted -- the fight against
the "chilling effects" goes on).  As for "morality" based claims, you run
directly into First Amendment precedents, and full-fledged lawsuits (I'm
not aware of any notice-and-takedown provision for morality claims -- maybe
Robin or Wendy would be more expert there).  Notice-and-takedown is a low
barrier (easier and less expensive) compared to filing and prosecuting a
full-blown lawsuit, and there is a good deal of controversy about it even
for IPR claims.  Having a higher standard for morality claims seems a
proper balance to me (if you're going to proscribe free speech, be *very*
careful about how you do it -- don't do it casually by any means).

In any case, I would presume that the policy for user-generated content
platforms would be similar to content hosting services in many ways (it is
for IPR in the US, because the Digital Millennium Copyright Act has
notice-and-takedown provisions for platforms such as these, and each
platform type covered is listed explicitly in the statute).



> From one point of view I totally agree with you, ex post enforcement is
>the way to go, ex ante censorship - even when required by law - is prone
>to terrible misuse. However I wouldn't want to get to the extreme of
>"irresponsible carriers", who refuse to cooperate in shutting down
>malicious services. Of course you would need some due process, but spam
>and botnets and all sorts of bad stuff thrive on irresponsible carriers
>who do not feel the need to abide by their duty of good netizens.

See above with respect to web hosting and content publication.  While there
are some common-carriage-type principles that can apply in some cases
(these services cannot reasonably be expected to know everything that is
going on on their platforms in explicit detail, except in the most
elementary technical sense, thus they should not be liable for preventing
it ex ante), as Milton noted: where genuine crimes are being committed, ex
post prosecution is entirely appropriate and desirable, and the platform
operator must comply or be held liable itself as well.

That said, this is not a perfect solution, due to the "transaction costs"
of using the judicial system (that's economist jargon for things like the
cost of lawyers, disruption of operational routine, allocation of
management resources to deal with a legal case, etc.).  Those powers with
more wealth are at an advantage in dealing with such systems, and justice
can be frightened away by unrecoverable costs of proving innocence, which
is ultimately not entirely "fair" if one is in fact not guilty of a crime
but cannot afford to defend oneself in the courts.



>In general, most of the world doesn't have a first amendment and doesn't
>appear to want one - actually, many citizens scream and ask their
>governments for more ex-ante censorship of the Internet. How to make the
>two visions coexist will be a challenge.

In addition to Milton's comments about the nature of rights and ongoing
controversies in the heat of evolving current events, we do indeed have
UDHR Article 19, regardless of how much (or little) impact that has on
actual national laws.

As for navigating the political dynamics, there is no silver bullet to
answer that question, no neat and clean solution that I know of.  Politics
is messy by nature (i.e., by nature of human diversity of opinion and
self-interest).  So you are *absolutely* correct: this is a profound
challenge.  Perhaps an eternal challenge.  I certainly don't have any
expectation of resolving this tension in my lifetime, or during the
lifetime of many generations to come.

That's what politics is all about: grappling with these difficult, even
intractable, decisions of collective policy for an integrated commonwealth.
What this demonstrates is that the Internet is becoming deeply immersed in
matters of general public policy and politics, and that genuine political
venues and jurisdictions (hopefully accountable to the general public in a
structural manner, but in any case sovereign within their own political
domains) must be the place to work on resolving those matters to the extent
possible.

Net neutrality is at root a political issue, and it is a principle that
deserves active advocacy in the context of democratic systems of public
governance.  Frankly, I don't expect it to be accepted by all authoritarian
regimes, but to the extent that "the free world" can establish it as a
benchmark, I think the world will be better off.

Again, I return to the deep roots of common carriage in Anglo-American
common law (note: peculiarly enough, most individual states in the US have
strong components of legal precedent beyond the bounds of federal law that
still appeal explicitly to English Common Law, except for Louisiana which
is derived from French/Norman law).  Modern democratic governance emerged
for the first time in the 1700s during the Enlightenment, and so one can
reasonably claim that common carriage has been a founding principle of
modern democratic systems from the beginning.  IMHO, it ought to remain so.

Dan
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