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

[Dan Krimm]

At 12:39 AM +0100 11/8/07, Vittorio Bertola wrote:

>I think that the case for network neutrality is there, it has so many
>clear reasons in its favour, it should be possible to get it recognized
>and formalized and push countries to adopt it in national regulations,
>perhaps this could be a nice achievement for the IGF.
>
>I am just afraid of the idea of collapsing the battle for network
>neutrality with the battle for a sort of "global online first amendment"
>that says that nothing should be censored ever.

...

 Maybe the only way to address that is by
>national (or at least regional) boundaries where content is filtered
>out, maybe there is no way to address it and we'll have to live with the
>consequences, who knows - I am pointing out the issue and the widespread
>sensitivities to it, I have no solution.
>
>But exactly for that reason, mixing network neutrality with a much more
>controversial and complex issue will just break the front. So I wanted
>to be sure that you're not trying to do that.


No one that I know of suggests that "nothing should be censored ever" --
there are clear carve-outs to free expression even in the US (the classic
example is you can't "shout 'fire' in a crowded theater" because it causes
abject harm and endangers other people -- in that case there is no
political utility to the speech, and the tangible harm outweighs the
default principle).

Even the American Civil Liberties Union is not *absolutist* on free speech,
though many opponents like to characterize them that way.  The point is
simply that free expression should be the *default*, and any exceptions
should be clearly and narrowly defined as an opt-out from that default,
with very high standards of justification.

In any case, deciding where in the law to carve-out those exceptions should
indeed be decided by a national political discussion within each sovereign
jurisdiction.

Network Neutrality and Common Carriage on telecommunications networks are
all about preventing ex ante prior restraint of speech and discriminatory
gatekeeper leverage in the market, and relegating prosecution of "illegal
speech" to narrowly-defined ex post processes.  That's really it in a
nutshell.

So, I've just responded to Bertrand's post about the Brazil/Orkut case, and
I go into a bit more detail there about the logistics of how this might
work itself out in the international legal arena.  But basically, yes, I
think if anything it comes down to border-crossing policies, which create
incentives for international agreements or treaties to make sure ex post
prosecution can be conducted in a reasonable manner that honors sovereign
jurisdictions.

Dan

PS -- Enjoy Rio, I will envy the rest of you who are traveling there.
Perhaps I will check in from afar along the way, if I can.
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