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

[Dan Krimm]

At 4:26 PM +0100 11/13/07, Norbert Bollow wrote:
>Suresh Ramasubramanian <suresh at hserus.net> wrote:
>
>> > The statement "There are no common carrier obligations for email
>> > traffic" sounds like a pretty much indefensible position to me.  Among
>>
>> It is a simple statement of fact, Norbert. And it is backed by enough
>> rulings and laws behind it that allow ISPs to make good faith filtering
>> efforts.
>
>I'm not objecting to good faith filtering efforts.
>
>I'm just objecting to the blanket statement that there are _no_
>relevant common carrier obligations.


Norbert,

While there are certainly some obligations for email traffic that are
*related* to common carriage, I'm not sure if the common carriage principle
*itself* applies directly in this instance, mainly because there is *lots*
more competition in the email hosting market compared to last-mile
connectivity which is often far from competitive (as in the US broadband
market in the absence of open access/interconnection rules for broadband
service).

In short, it is relatively easier to find alternative email hosting
regardless of how one gets access to the network.  So, if you don't like
your email host (if you suspect they are filtering your email in a way you
oppose and cannot control), you can more readily find another one that
gives you more control.  Common carriage is aimed chiefly at gatekeeper
bottleneck points in essential routes of transport.  Certainly if I am
using an independent email host, I expect my (separate) ISP not to touch a
single packet of email traveling through their last-mile network services
that I have purchased to connect to the Internet, and I expect no
deep-packet-inspection along the way at other points in the data transport
network layer -- *that* is common carriage.

This is why people like Prof. Tim Wu argue for regulating data transport
markets for structural competition, i.e., to remove gatekeeper leverage by
mandating open access for devices, applications, networks and services, so
that in the resulting competitive market the incentives to discriminate
data traffic are undermined (because in a *competitive* market, customers
will tend to "route around" any undue filtering).  In a genuinely
competitive transport market, common carriage is, in principle, not an
issue because nondiscrimination emerges naturally out of the market
competition.

Granted, the reality of the email situation is a little hazier than I've
portrayed it, given that many customers simply use the native email
services of whatever ISP they use, because it's easier.  That said, if they
were to discover that their email was getting filtered in a way they did
not want and could not control, that might well push many of them over the
edge to look for an alternative email host, and it wouldn't be all that
difficult for them to find those alternatives in the US at least.

In cases where some email host has significant market power over some
customer base, then the monopoly dynamics start to kick in, and
discrimination becomes an issue to the extent that the end user loses
control over filtering policies applying to the end user's email service.
The control issue is certainly there in such cases, and it is similar to
the control issue in common carriage for data transport, but it may be only
a metaphorical relationship rather than a direct identity of classification.

As I noted previously, spam is a more complicated issue, and I would like
to see that split off from the issue of data transport common carriage if
the former threatens to prevent consensus from forming around the latter.

Let not the "perfect" become the enemy of the "good" and let the "good"
become a platform upon which to build out further to "better".

Dan
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