A constant complaint of net neutrality naysayers is that no one knows what net neutrality is. Lacking an agreed-upon definition, the debate swirls into a maelstrom full of red herrings, as various ISP spokespeople talk about how net neutrality threatens legitimate network management, or will interfere with quality of service.
It’s high time we moved past that argument, define some terms, and get on with things. That’s one of the accomplishments of the recent resolution on net neutrality issued by the Trans Atlantic Consumer Dialog(TACD). PK’s press release on the resolution is here; Ars Technica has a nice writeup here.
TACD is a broad coalition of US and EU consumer groups, covering issues ranging from food safety and labeling to privacy and identity theft to patent and copyright issues, including pharmaceutical patents and DRM. Last Monday, the coalition met with representatives of the US and EU to present several position papers and resolutions, including the one on net neutrality.
Instead of defining net neutrality as a specific set of rules to be implemented, the document defines net neutrality as a state of non-discrimination against content, users, providers, or devices:
In a neutral Internet, consumers:have the right to attach devices of their choice;
have the right to access or provide content, services, and applications of their choice;
have the right for their access to be free from discrimination according to source, destination, content, or type of application.
The resolution goes on to specify the general outlines of ISPs’ behavior in a neutral Internet:
Simultaneously, in a neutral Internet, ISPs and communications networks:do not unfairly block content, applications or devices;
do not deliberately degrade access for content, applications, or devices;
do not prioritize data according to its source or destination;
do not discriminate against particular providers of content, applications, services, or devices.
Notice the “unfairly” built into that first item. This is a key part of how the resolution draws a distinction between “legitimate network management” and “unfair discrimination.”
A whole section of the brief resolution is devoted to explaining this difference. For instance, blocking malware or DDoS attacks is perfectly legitimate, and blocking these types of traffic would be helpful in maintaining a neutral and functional Internet. Likewise, if a customer specifically asks for certain content to be blocked or degraded (such as with spam filtering, or if a parent wants to restrict their home computer’s access to adult sites), that would be consistent with a neutral network.
The resolution goes even a step farther, noting that it’s not a problem to prioritize different types of data, depending on their sensitivity to traffic patterns. So VoIP and video streaming packets could still be prioritized over text, since the former need a continuous stream for quality delivery, while the latter can easily be delivered in bursts without a user suffering, or even noticing a change. What’s not ok, according to TACD, is when providers start discriminating against particular users or content providers, based not upon the type of service or application, but upon whether or not they have business deals with certain providers, or political disagreements with some users.
In a way, this lines up with the concept of defining the net neutrality problem as a discrimination problem. Just as in other areas of law, there can be proper and improper discrimination. If a restaurant owner simply doesn’t have enough unreserved tables to seat a busload of guests, that’s legitimate discrimination. If, on the other hand, he turns away only those of a certain race, religion, or nationality, or if all of the tables suddenly become reserved when a member of the disfavored group asks for a seat, that’s clearly invidious, illegitimate discrimination.
The TACD resolution asks the US and EU to encourage network neutrality by preventing unfair discrimination, through regulation and by encouraging competition. Of course, for either regulation or the market to work, you need more than a general statement—you need consumers to be able to make informed choices. That’s why TACD also asks that ISPs disclose what kinds of network management they use, so that invidious discrimination can’t masquerade as legitimate network management.
This is one of the better
This is one of the better steps I have seen of later with regards to net neutrality. It is also good that it is not merely a U.S. agreement, but includes the E.U.
Your restaurant comparison
Your restaurant comparison does not work for the current debate.
As you say, “if, on the other hand, he turns away only those of a certain race, religion, or nationality, or if all of the tables suddenly become reserved when a member of the disfavored group asks for a seat, that’s clearly invidious, illegitimate discrimination.”
Because this is a violation of the law, the affected customer would be entitled to sue the restaurant owner.
Let’s assume that the ISP is like the restaurant owner. To benefit its financial partnerships or further a political agenda, the ISP engages in an egregious act of discrimination. Just as with the restaurant example, the customer is more than adequately protected.
Under the Sherman and Clayton antitrust acts, not only can the customer file a complaint with the DOJ, the FTC, and his state’s attorney general, he is ALSO entitled to file a suit in civil court and seek treble damages.
What Public Knowledge advocates is completely different. By lobbying for preemptive FCC authority to regulate network management, you are taking a far more aggressive stance than with the restaurant owner. Here is a much better analogy:
The restaurant owner possesses the means and opportunity to engage in “unfair discrimination.” To prevent this from happening, restaurant owners must report the race, religion, and nationality of each customer to a federal regulatory agency at the end of each business day. This is necessary to ensure compliance with restaurant neutrality rules. Before the restaurant owner can change seating policies, he must also seek approval from regulators to assess the likelihood that these new policies could lead to unfair discrimination.
The analogy was meant to
The analogy was meant to illustrate the difference between legitimate and illegitimate discrimination, not to claim that It can’t be stretched too far because of the major differences in the transparency of the discrimination, the ease of reporting data on management practices, and the number of consumers harmed in each case.
Discrimination on the basis of race in a face-to-face situation is something that harmed consumers will quickly recognize. In many cases, if traffic is discriminated against, only the most savvy consumers would detect the difference, depending on the nature of the discrimination.
Reporting requirements would also be substantially different. ISPs implementing an automated prioritization regime could easily report the sets of rules they apply to traffic—far more easily than hundreds of thousands of restaurant owners could explicate a rule from the unwritten decisions of several employees. And keep in mind—it’s those automated policies that the ISP would be reporting—not raw data on traffic.
And the balance of harms is different, too. A larger number of consumers would be affected by each change in a network management policy, in an environment that is far less competitive.
No part of the TACD proposal suggests that changes in policies must be approved by regulators before being implemented—just be ready to justify discriminatory actions if and when they are taken.
Antitrust can be a useful tool, but it doesn’t directly address the discrimination problem. Where discrimination is against specific political viewpoints, for instance, the harm falls outside the scope of antitrust law. Even if an ISP is acting for commercial gain, in vertical integration cases, for instance, the antitrust laws often won’t reach that far.
Part of the reason for this is that a discriminatory network creates harms that go beyond decreasing competition. In this case, the harms would be the degradation or blocking of information that the consumer seeks. If the harms of discrimination were simply to competition, then perhaps antitrust would be a better solution, but it’s not.
Again, let’s not let one analogy distract from the central debate. There are far more parallels between provision of Internet service and provision of telephony than provision of Internet service and food. We’re just so used to the idea of common carriage in telephony (could you imagine a telecom blocking phone calls to competitors’ sales departments?), and, sadly, too used to the idea of discrimination in food service, that the latter makes for a more realistic illustration.