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Published by: leander herzog on Jan 14, 2009
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february 2009|vol. 52|no. 2| 
communications of the acm
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Pint: Barbara van Schewick
magine switching on
yourcomputer to try an exciting new Internet application you heardabout. It does not work. You callcustomer support, but they can-not help you. I you are like most users, you give up. Maybe the application wasnot so great ater all. I you are techni-cally sophisticated, you may run sometests, only to nd out your ISP is block-ing the application. Welcome to the u-ture without network neutrality rules.Most o us take the ability to use theapplications and content o our choiceor granted. To us, “Internet access”means access to everything the Internethas to oer, not access to a selection o Internet applications and content ap-proved by our ISP. This assumption was justied in the past, when the Internet was application-blind, making it im-possible or ISPs such as AT&T, Earth-Link, or Comcast to interere with theapplications and content running overtheir network.
Today’s world is dier-ent: ISPs have access to sophisticatedtechnology that enables them to blockapplications or content they do notlike, or degrade their perormance by slowing the delivery o the correspond-ing data packets. Whether and how the law should
a The application-blindness o the Internet wasa consequence o its design, which was basedon the broad version o the end-to-end argu-ments.
react to this changed situation is thesubject o the network neutrality de-bate. Network neutrality proponentsargue that ISPs have incentives to usethis new technology, and that the exist-ing laws in many countries do not su-ciently constrain the ISPs’ ability to doso. Proponents contend that users, notnetwork providers should continue todecide how they want to use the Inter-net i the Internet is to realize its ullpotential and that the law should or-bid ISPs to block applications and con-tent or to discriminate against them. While the debate does not end here (inparticular, whether a nondiscrimina-tion rule should ban Quality o Serviceor restrict ISPs’ ability to charge una-liated application or content provid-ers or the right to oer their productsto the ISPs’ customers is controversialeven among network neutrality pro-ponents), a rule against blocking anddiscrimination is at the core o all net- work neutrality proposals.
 But does a network provider re-ally have an incentive to discriminateagainst applications? Research showsthat while a network provider does notgenerally have an incentive to excludeapplications or content,
there are cases
b In some proposals, such a rule takes the ormo users’ rights to use the (lawul) applicationsand (legal) content o their choice. There usu-ally is an exception that allows network pro- viders to block malicious applications andcontent, such as those involved in denial-o-service attacks.c More applications and content make the In-ternet more attractive, so network providersgenerally have an incentive to oster, not ex-clude additional applications.
P/cup n nuy nu
 A discussion of divergent paths to unrestricted accessof content and applications via the Internet.
doI:10.1145/1461928.1461942Barbara van Schewick davi Farber
communications of the acm
 |february 2009|vol. 52|no. 2
february 2009|vol. 52|no. 2| 
communications of the acm
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not create value through its existencealone. It creates value by enabling us todo things we could not do otherwise, orto do things more eciently. Applica-tions are the tools that enable us to real-ize this value. Through the applicationsand content it oers, the Internet hasenabled us to become more productivein our proessional and private lives, tointeract with relatives, riends, and com-plete strangers, to get to know them,communicate, or work with them, o-cusing on anything we like, to educateourselves using a wide variety o sourc-es, and to participate in social, cultural,and democratic discourse. In the pro-cess, it has spurred economic growth,improved democratic discourse, andcreated a decentralized environmentor social and cultural interaction in which anyone can participate.ISPs ability to discriminate changesthis. In a world without network neu-trality rules, ISPs determine which ap-plications and content can becomesuccessul, distorting competition inthe markets or applications and con-tent. As we have seen, who networkproviders decide to support and whothey decide to exclude may be motivat-ed by a number o actors that are notnecessarily aligned with users’ preer-ences, leading to applications that us-ers would not have chosen and orcing users to engage in an Internet usagethat does not create the value it could.I I am working on an open source proj-ect that uses BitTorrent to distribute itssource code, and the network providerchooses to single out BitTorrent tomanage bandwidth on its network, I amunable to use the application that bestmeets my needs and use the Internet inthe way that is most valuable to me. I I am interested in content that my net- work provider has chosen to restrict,my ability to educate mysel, contrib-ute to a discussion on this subject, andmake inormed decisions is impeded.Instead, ISPs gain the power to shapepublic discourse based on their own in-terests and idiosyncratic content poli-cies. In addition, the risk o being cuto rom access to users at any time andat the sole discretion o the networkprovider reduces independent inno- vators’ incentive to innovate and theirability to secure unding. Throughoutthe history o the Internet, successulapplications such as email, the Web,search engines, or social networks havebeen developed by independents, notnetwork providers. By threatening thesupply o all those exciting new applica-tions that have not even been thoughto yet, discrimination by network pro- viders reduces the Internet’s ability tocreate even more value in the uture.But do we really need regulation?That competition will solve any prob-lems, should they exist, is a commonargument against network neutrality. I  AT&T blocks an application that its cus-tomers want to use, the arguments goes,customers will switch to another provid-er that lets them use the application.This argument comes in many fa- vors: Some, like many European regula-tors, use it to argue that the problemsthat network neutrality is designed toaddress are caused by the concentratedmarket structure in the U.S., but are notrelevant to European countries that, dueto open access regulation, have morecompetition among ISPs than the U.S.
 Others, particularly in the U.S., argue thatgovernments should ocus on increas-
e In the U.S., most residents have a choice be-tween at most two providers, the local telepho-ny company and the local cable modem pro- vider (residents in 34% o ZIP codes in the U.S.have only one or zero cable modem or ADSLprovider who serves at least one subscriber liv-ing within the ZIP code). These providers arenot required to (and generally do not) let inde-pendent ISPs oer Internet services over theirinrastructure. By contrast, Europeans otenhave the choice between cable and DSL ser- vices, and can choose among a number o ISPsoering their services over the DSL network.
ing competition among ISPs instead o enacting network neutrality rules.These arguments neglect a numbero actors that make competition lesseective in disciplining discrimina-tory conduct than one might expect.First, i all network providers block thesame application, there is no providerto switch to. For example, in many countries all mobile network providersblock Internet telephony applicationsto protect their revenue rom mobile voice services, leaving customers who would like to use Internet telephony over their wireless Internet connection with no network provider to turn to.Second, customers do not have anincentive to switch i they do not re-alize the network provider intereres with their preerred application. I network providers secretly slow downpackets or use methods that are di-cult to detect, their customers may at-tribute an application’s or Web site’sbad perormance to bad design, andhappily switch to the network provid-er’s supposedly superior oering.Third, nding another ISP andmaking the switch requires signicanttime, eort, and money, reducing cus-tomers’ willingness to switch. All thissuggests that while increasing com-petition is good or other reasons, it isnot a substitute or a robust networkneutrality regime.Finally, some argue that allowing network providers to discriminateagainst applications and content isnecessary to oster broadband deploy-ment. This argument concedes thatnetwork providers have an incentive todiscriminate to increase their prots.By removing the ability to discrimi-nate, network neutrality rules reducenetwork providers’ prots.Fewer prots may mean less money to deploy broadband networks. I amnot convinced that network neutrality rules would reduce ne twork providers’prot enough to push deployment in-centives beyond the socially ecientlevel,
or that network providers wouldreally use the additional prots to de-ploy more networks instead o using the money to please their shareholders.
Ater all, network providers would still be ableto oer their own applications or content, butthey would not be able to give them an advan-tage over competing products.
in which it does have an incentive to doso—to increase its own prot, to man-age bandwidth on its network, or toexclude unwanted content. Consistent with these theoretical predictions—and in spite o heightened public at-tention rom the ongoing controversy about the need or network neutrality regulation, examples o discriminatory conduct have started to appear in prac-tice. As Lawrence Lessig has put it, “i ‘network neutrality’ was ‘a solution insearch o a problem’ in 2002, and 2006,the network owners have been very kind to network neutrality advocatesby now providing plenty o examples o the problem to which network neutral-ity rules would be a solution.”
For example, network providersmay want to exclude applications thatthreaten their traditional sources o income. In 2005, Madison River, a ru-ral phone company in North Carolina,blocked the Internet telephony appli-cation Vonage, which threatened itsrevenue rom traditional phone servic-es. In 2007, Comcast, the second-larg-est provider o Internet services in theU.S., shut down peer-to-peer le shar-ing connections, degrading the peror-mance o applications such as Vuze thatlegally deliver television content to endusers based on a peer-to-peer protocoland threaten Comcast’s traditionalcable-based content delivery services.ISPs such as AT&T or Verizon, whichoer co-branded services with Yahoomay have an incentive to increase their joint advertising revenue with Yahooby slowing down Web sites or portalsthat compete with Yahoo. Networkproviders need not necessarily be ableto monopolize the market or a specicapplication to make discriminationprotable; the increased revenue romselling more copies at the market pricemay be incentive enough.Network providers may also be mo-tivated to interere with applications tomanage bandwidth on their network.Because o the prevailing fat-rate pric-ing structure, network providers havean incentive to block or degrade appli-cations that consume more bandwidthor consume it in unexpected ways. Aterall, i the use o the network increases,the network provider’s costs increaseas well, but due to fat-rate pricing, itsrevenue stays the same. For the net- work provider, blocking or degrading selected applications is a quick x thatrequires less investment than upgrad-ing the network or devising a nondis-criminatory solution. Comcast’s block-ing o BitTorrent and other peer-to-peerle-sharing applications is an exampleo this type o behavior.
Finally, network providers may havean incentive to block unwanted contentthat threatens the company’s interestsor does not comply with the networkprovider’s chosen content policy. In2005, Telus, Canada’s second largestISP, blocked access to a Web site that wasrun by a member o the Telecommunica-tions Workers Union. At the time, Telusand the union were engaged in a conten-tious labor dispute, and the Web site al-lowed union members to discuss strate-gies during the strike. In 2007, Verizon Wireless rejected a request by NARALPro-Choice America, an abortion rightsgroup, to let them send text messagesover Verizon Wireless’ network using afve-digit short code. In the same year, AT&T deleted words rom a Webcast o a Pearl Jam concert in which the singercriticized George W. Bush. Both provid-ers argued that the rejected or deletedcontent violated their content policies.
  While the latter two examples are not di-rect examples o ISPs restricting contenton their networks (Verizon Wireless re-stricted a service on its wireless mobilenetwork, not the wireless Internet, while AT&T acted in its role as a content pro- vider, not as ISP), it is easy to imagine virtually identical incidents in which anISP enacts a content policy and restrictscontent on its network accordingly 
.I ISPs have an incentive to blockselected applications or content or dis-criminate against them, why should we care? Preventing discrimination isnecessary i the Internet is to realize itsull economic, social, and political po-tential. Discrimination restricts users’ability to choose the application andcontent they want to use. This ability tochoose is undamental i the Internet isto create maximum value, or us as in-dividuals and or society. The Internetis a general-purpose technology. It does
d They later changed their view ater the inci-dents had been widely reported.
nwrk prvdry v v  blkwd  r py’ rr d  plyw  wrkprvdr’  ply.nwrk prvdry b vd rr wppl g bdwd r wrk.v swk:B d  wrkprvdr rlly v v drg ppl?
communications of the acm
 |february 2009|vol. 52|no. 2
february 2009|vol. 52|no. 2| 
communications of the acm
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es and applications oered by searchengine companies, online content pro- viders, and Internet portals.The undamental act o the U.S.broadband capabilities is that we have alandline duopoly consisting o the cablecompanies and the “telephone” acili-ties—cable data and DSL. Each membero the duopoly is expanding their physi-cal plant—both are evolving to ber toeither the home or close to the homeand both are targeting a complete set o subscriber services rom phone to videoto data. In the long run there is no obvi-ous winner in terms o technology andmaybe even in terms o services oered.In the short run the competition be-tween these duopolies encourages themodernization o their physical plantsand the enhancement o their services. All this sounds great or all. So whereis the problem? The issue o Net neu-trality rst arose in the public’s view ina remark by one o the carriers—SBC(now the “new ATT”) —that servicesthat use the acilities provided to reachtheir customers should pay a ee to thecarriers or the use o their acilities.This trial balloon raised a restorm with Internet-based companies suchas Google who essentially argued thattheir customers were paying their Inter-net access ees in order to gain access toGoogle’s services and that Google waspaying the terminating carrier directly or high-speed access. They and othersdemanded that the U.S. Congress passlaws requiring essentially open accessto the data networks on an equal-ser- vice-to-all basis. They asked the FCC toexercise their regulatory powers to re-quire this in the absence o any specicCongressional actions.In both cases the cure might be worse that the disease. The ability o the U.S. Congress to pass eective leg-islation in the telecommunicationsarea is open to question. The Telecom-munications Act o 1996 was an at-tempt to provide unbundled access tothe last-mile wire loop in order to allow and encourage the rise o alternativedata carriers. Experience has shownthat this portion o the bill was worsethan ineective. Those companies who believed the law would be eectivelost a lot o money as the incumbentsresisted and were orced to the courts.The incumbents argued that the exis-tence o these unbundling obligationsundermined the incentives or the in-cumbents or anyone else to make theheavy investment required or build-ing new next-generation broadbandnetworks. Counting on the FCC has yielded mixed results. Like Congress,its decisions are subject to infuenceby political considerations and spe-cial interest goups as administrationscome and go. The FCC has a minimumamount o technical knowledge aboutthe Internet and thus even when it acts,oten misses the mark and can end upin lengthy court actions that an innova-tive new company cannot survive.Recently there have been a numbero activities that have been attacked,sometimes validly, as being against thepublic good and against the FCC guide-lines. The result o this was an FCC ac-tion telling Comcast to stop a particularorm o network action being used by them or network management, There were public hearings prior to the ac-tion during which time there was a mixo technical input and public discus-sion, all inormal—that is, not sworntestimony as required in ormal hear-ings. I will not argue the validity o 
thecriticism, except to say technique usedseemed not to actually work but I wouldcomment that the procedure, such as was used, most likely is not an eective way o gathering critical technical inor-mation and is all too easily turned into apolitical show. It is also possibly illegalbut the courts will eventually determinethat when someone sues.
 One o the major dangers thatace the uture o Internet business is whether those who control our accessto the Net will implement proceduresunder the guise o managing the Netthat will discourage competition tothose services they oer—such as videoover the Internet competing with thecable delivery o the cable operator.
In an Op-Ed article in the
Washing-ton Post 
in January 2007, Michael Katz,Christopher Yoo, Gerald Faulhaber,and I argued: “Public policy shouldintervene where anticompetitive ac-tions can reliably be identifed andthe cure will not be worse than the dis-ease. Policymakers must tread care-ully, however, because it can be di-fcult, i not impossible, to determinein advance whether a particular prac-tice promotes or harms competition.Current antitrust law generally solvesthis problem by taking a case-by-caseapproach under which private partiesor public agencies can challenge busi-ness practices and the courts requireproo o harm to competition beoredeclaring a practice illegal. This is asound approach that has served oureconomy well.”
Today, innovation and enhance-ments can occur at all levels o the In-ternet. Network providers, applicationsproviders, portals, search engines, andcontent providers can all innovate in various ways and make needed im-provements that can benet the Inter-net’s evolution. We should encouragethis innovation, while preserving theother core strengths o the Internet: itscooperative spirit and openness to en-
a Farber, D., Katz, M. Hold o on Net neutrality.
Washington Post 
(Jan. 19, 2007), A19; http:// www.washingtonpost.com/wp-dyn/content/article/2007/01/18/AR2007011801508.html.
Cunterpint: davi Farber
et’s say that
I am completely in avor o network neutrality.But what would such a strong position actually mean? Thedefnition o “network neu-trality reshapes itsel like our lungs. Itexpands, drawing in causes ranging rom reedom o speech to open access.Then it contracts, exhaling a lot o hotair, and starts all over again. I would like very much to sharpen the ocus to thoseessential issues that will orm the basiso a uture expansion o broadband In-ternet services as well as the widespreaddeployment o such capabilities.
 There is one constant about the In-ternet: it has continued to evolve andchange, oten in ways none o us—eventhose o us directly involved in its devel-opment—would have predicted. Thissimultaneously makes the Internet so valuable and so vulnerable. Its growthand expansion into all corners o soci-ety have made it a major part o globallie—but this expansion and the valueo the Internet also requently leads toeorts by some to try and predict andcontrol its direction. We’ve had cycles in the past wherethe Internet aced challenges due torapid growth or the development o new orms o malware or online attacks. Forexample, in the dial-up era o the 1980s,the growth o list servers and FTP ledownloads caused great concern aboutcongestion. In the 1990s, there was asimilar ear that the Internet would“crash” due to the rise o the Web. At var-ious times, ears o new orms o virusesand botnets have arisen as well. In every case, the cooperative eorts o networkproviders, applications developers, and volunteers with a great amount o ex-pertise have helped us make changesin protocols or add capacity that havehelped us get through.The evolution o the Internet is thusdriven equally by competition and co-operation, and by and large we contin-ue to nd ways, as messy and inormalas they oten are, to address problemsas they arise.I am concerned that we may suc-cumb to ears about possible dangersto the Internet’s uture and react withproposals to legislate or regulate itsoperations. Many o these ideas aredesigned around presumptions as tohow the Internet will evolve. We haveseen the Internet become a truly mass-market phenomenon on a global basis.Broadband networks have been andare being deployed that are moving ustoward higher levels o speed and capa-bility. Some now suggest there is the po-tential or abuses that might harm con-sumers as these networks grow. They argue that the companies deploying  wire-line broadband networks mightuse their position as network owners toavor the applications and services they provide and/or harm competing servic-Still, there is a potential trade-o herethat legislators need to resolve. Allow-ing discrimination reduces user choiceand application-level innovation. It dis-torts competition in applications andcontent, harms economic growth andconstrains democratic discourse. Sac-ricing the vital innovative and com-petitive orces that drive the Internet’s value to get more broadband networksseems too high a price; as Tim Wu hasput it, it is like selling the painting to geta better rame.
While it is impossibleto protect application-level innovationand user choice once network providersare allowed to discriminate, there are ways to solve the problem o broadbanddeployment that do not similarly harmapplication-level innovation and userchoice (or example, i insucient pro-its really are the problem, subsidizing network deployment may be one).Changes in technology have givennetwork providers an unprecedentedability to control applications and con-tent on their network. In the absenceo network neutrality rules, our ability to use the lawul Internet applicationsand content o our choice is not guar-anteed. The Internet’s value or usersand society is at stake. Network neutral-ity rules will help us protect it.
1. Frichm, b.M.  v schwick, b. nworkri  h coomic of  iformioprhihw: a rp o Profor yoo.
JurimetricsJournal 47 
(smmr 2007), 383–428.2. li, l.
Testimony before the United StatesSenate, Committee on Commerce, Science, and Transportation, at its Hearing on: The Future of theInternet.
2 sio 110h u.s. Cor, 2008.3. v schwick, b. towr  coomic frmworkfor work ri rio.
Journal onTelecommunications and High Technology Law 5 
, 2(2007), 329–391.4. v schwick, b.
Written Testimony before the FederalCommunications Commission at its Second En BancHearing on Broadband Management Practices.
 2008; hp://www.fcc.ov/ro_work_mm/hri-c041708.hm.5. v schwick, b.
Architecture and Innovation: The Roleof the End-to-End Arguments in the Original Internet.
 MIt Pr, Cmri, Ma, Forhcomi 2009.6. W, t. Wh o ho cr o work ri.
Slate Magazine
(M 1, 2006).
Barbara van Schewick
(chwick@for.) i hco-ircor of sfor lw schoo’ Cr for Ir soci,  i profor of lw  sfor lwschoo,   i profor ecric eiri( cor)  sfor’ dprm of ecriceiri i sfor, Ca.thi com i  pr rw o m cmicwork o work ri; 
. thk o Jophgrf, lwrc li, lrr Krmr,  Mrklm for comm o  rir vrio of hi mri.
i  rd w y b r bpbl dgr  ir’r d rw prpl lgl r rgl pr.frbr: tr   b ir:  d  vlvd g,  wy   wld v prdd.

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