[governance] Net neutrality: Definitions

[Karl Auerbach]

On 08/16/2010 08:21 PM, Paul Lehto wrote:
> On 8/16/10, Karl Auerbach<karl at cavebear.com>  wrote:
>> Given that, at least in the USA, well over 90% of the net, and perhaps
>> closer to 99%, is owned by private entities, a policy that defines net
>> neutrality on a non-privately owned/operated "public internet" would be
>> a policy of very limited scope.
>
> Your focus on ownership to the exclusion of other factors is
> misplaced.  IN the last few days, I attended a "county fair" held on
> private land ...

I am intrigued by your attempt to equate use of private land by 
invitation or contract with the conveyance of packets over a privately 
owned and operated wire and through privately owned and operated routers.

I don't find it a compelling analogy.

Let's begin with the ultimate private right, the right to refuse.

Are you saying that a provider *must* carry your packets?  That the 
carrier must remain in existence, even to its bankruptcy to convey your 
packets?  That would be absurd.  And, if it were required, it would mean 
the speedy end of the internet.

Or are you saying that a provider must give non-paying non-customers the 
same access to its facilities as paying customers?  That would seem to 
be a quick road to provider insolvency.

I have routine blocks against certain people reading my privately 
constructed, privately operated, and privately hosted websites.  And I 
have similar blocks against certain sources of undesired email.  If I 
blocked you you are suggesting that somehow I would be violating denying 
your rights on the internet.  Needless to say, absent some special 
relationship or contract, neither I nor anyone else has any such duty to 
you.

You seem to feel that just because I may have a website or other service 
up on the net that you have unfettered rights to access it.  That is not 
true.  I can limit or even revoke your access at any time without 
notice.  So can every other operators, except perhaps certain 
governmental ("public") operators.  Moreover, if you persist and pound 
on my servers to excess or try to penetrate the security barriers then 
you could be find that you've stepped into somewhat deep waters.

But that's websites.  Let's get back to the carriage of packets over the 
net:

ISP's tend to have peering and transit contracts with one another to 
which you have neither privity nor third party beneficiary rights with 
regard to those agreements.

At best you have an agreement with your local first hop provider/ISP, 
nothing more.

You can not demand that third party providers carry packets to and from 
your ISP.  Even less do you have standing to demand that those third 
party providers give your packets equal or premier treatment.

I get the sense that you are also attempting to equate the carriage of 
IP packets over privately owned links and routers in the net as if those 
were some sort of public place, along the lines of the cases in which 
private shopping malls were equated to public streets for purposes of 
things like gathering signatures on petitions.

If that's what you are attempting, I find the analogy flat.  A provider 
that doesn't carry your packets with equity or even at all, is not 
stopping you from publishing your material.  There are almost as many 
web hosting providers as there are Starbucks coffee stores - so if one 
can't publish your stuff there's always a willing and able provider 
coming around on the merry-go-round.  Perhaps if there were some sort of 
collusion among all the providers there might possibly be something 
actionable.

But finally, this whole thread started when someone said that the phrase 
"public internet" was the whole internet.  You can pound your keyboard 
against the cold iron of the perception of those who are spending the 
money that they own and thus control the assets they paid for.

I suggest that absent some sort of expropriation that the best you could 
possibly achieve is some sort of non-discriminatory common-carriage 
regime to defined classes of service but that different classes of 
service would come at different prices.

That regime is not going to arise out of some local "common law" 
principle (particularly as most of the world isn't based on English 
"common law" at all).  It might arise at a national level via national 
legislation, but as we well know the net is international and 
supranational and that national law in that context is nothing more than 
"mere domestic law".

		--karl--
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