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EUTRALITY, PRIVACY AND SECURITY : THE EXAMPLE OF THE FILTERING MEASURES by Charlotte Bogusz

EUTRALITY, PRIVACY AND SECURITY : THE EXAMPLE OF THE FILTERING MEASURES by Charlotte Bogusz

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Published by ndaru_
Subject: A paper proposal for the Fifth Giganet Annual Symposium
Topic: Implications of Internet Governance mechanisms and processes for development and developing countries.

The concept of Net neutrality is often attributed to M. Tim Wu, who defined it as follows: “For a public information network to be as useful as possible, it must tend to treat all contents, sites and platforms in the same way. The Internet isn’t perfect but its original architecture tends towards that goal. Its decentralized and essentially neutral nature is the reason of its success, both economic and social”. Specifically, the Internet’s architecture is made of several independent layers.
Subject: A paper proposal for the Fifth Giganet Annual Symposium
Topic: Implications of Internet Governance mechanisms and processes for development and developing countries.

The concept of Net neutrality is often attributed to M. Tim Wu, who defined it as follows: “For a public information network to be as useful as possible, it must tend to treat all contents, sites and platforms in the same way. The Internet isn’t perfect but its original architecture tends towards that goal. Its decentralized and essentially neutral nature is the reason of its success, both economic and social”. Specifically, the Internet’s architecture is made of several independent layers.

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Published by: ndaru_ on Mar 18, 2011
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02/03/2013

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 1From: Charlotte BOGUSZTo: The Global Internet Governance Academic Network – GIGANET
The Global Internet Governance Academic Network - GIGANET
Subject: A paper proposal for the Fifth Giganet Annual SymposiumTopic: Implications of Internet Governance mechanisms and processes for development and developingcountries.
NEUTRALITY, PRIVACY AND SECURITY :THE EXAMPLE OF THE FILTERING MEASURES
The concept of Net neutrality is often attributed to M. Tim Wu, who defined it as follows: “
For a publicinformation network to be as useful as possible, it must tend to treat all contents, sites and platforms inthe same way. The Internet isn’t perfect but its original architecture tends towards that goal. Itsdecentralized and essentially neutral nature is the reason of its success, both economic and social 
”.Specifically, the Internet’s architecture is made of several independent layers. The three main anddistinct layers are:-
 
a conveyance layer (the infrastructure)-
 
a “logical” layer containing the applications (the infostructure)-
 
a contents layer The neutrality principle means that the network’s intelligence lies in its extremity, instead of anintermediate layer of the network 
1
. This neutral architecture resulted in the establishment of an “open”Internet, allowing the users to access and put online the contents and information of their choice, to useand develop services and applications, and to connect whatever facilities they want to the network.Thanks to these technical reasons, the Internet was able to encourage innovation, competition and anexponential distribution, and became a huge economic and social success. The Internet is now a part of our lives: beyond the mere media, it plays a fundamental part in our social and economic relations, aswell as cultures and our exchanges…However, just like the real world, the Internet isn’t free from illegal behaviors: scams, incentives tohatred, violence and crimes of all kinds… Therefore, in order to fight cybercrimes, our democraticStates have promoted the use of filtering techniques. Filtering is designed to “
prevent specific contentsfrom reaching a computer, using a software or hardware that scans the Internet traffic and determineswhether it should prevent the reception and/or display of the targeted contents
2
.
1
This separation is also called "principle of end to end".
2
In “Filtrage d'Internet et Démocratie”, Main Abstract, October 22, 2009 : available on:http://www.laquadrature.net/files/Filtrage_d_Internet_et_d%C3%A9mocratie%20-%20R%C3%A9sum%C3%A9%20Principal_1.pdf 
 
 
 2But aren’t these techniques that we use to block, degrade, slowing down or diverting the transmission of data, incompatible with the sacred neutrality principle?In order to answer this question, we will study in the first part the principle of Net neutrality, both in itstext recognition and its present endangerment. Then we will focus on the filtering techniques, whichinfringe upon this neutrality but are increasingly developing nevertheless. This will include certainprovisions regarding intellectual property rights.How can we strike a balance between neutrality and filtering of the Internet? On May 10, 2010
3
, theEuropean Data Protection Supervisor declared that “
even though there is no doubt that intellectual property is important to society and must be protected, it cannot be placed above the fundamental right to privacy and the protection of data
”.
3
On May 10, 2010, the data protection European Controller rendered its opinion on the Proposal for a Directive onexploitation and sexual abuse of children and child pornography : available on : http://owni.fr/2010/06/09/lautorite-europeenne-de-protection-des-donnees-critiquele-Filtering/
 
 3
PART 1. NET NEUTRALITY: A FONDAMENTAL PRINCIPLE THAT MUST BEGARANTED
We mentioned in the introduction that the principle of Net neutrality guarantees a strong separationbetween the network (merely in charge of conveying the data) and the peripheral applications (the onlyones capable of managing the data). This implies that there should be no discrimination, based on thesender or receiver’s identity, or the nature of the data, in the information processing.However, this open Internet, which promotes innovation and competition, has to be weighed againstlegal, social, economic and technical considerations. In our market society, where do we strike thebalance between profitability and equality with respect to the Internet? Between the preservation of public order and abusive filtering? In order to answer this, we will see that the neutrality principle hasbeen legally recognized, and then we’ll try to understand the difficulties resulting from this principle.
1A. Net Neutrality: a core principle now universally recognized.
Historically, the questions surrounding Net neutrality arose in the United States in 2000 because of adispute opposing Internet Service Providers (the “ISP”) to cable-based providers regarding theconditions for the access of ISPs to the cables of the plaintiff’s companies. The FederalCommunications Commission (the “FCC”) then outlined the future guidelines based on this neutralityprinciple. In 2005, at the time of the debate regarding the deregulation of access to broadband Internetaccess, the FCC affirmed the right of users to access and use any content, application, and terminalsaccording of their choice, provided they are legal. It also affirmed the necessary competition betweenISPs. However, the “Policy Statements on 4 Internet Freedoms” affirms the freedom for providers toadopt reasonable technical devices to ensure a better traffic management. In 2007, following the lawsuitinvolving Comcast
4
, a bill on “Net neutrality” was proposed, to no end. In 2009, the FCC launched apublic consultation in order to codify the 2005 “rights” and to complete them with the affirmation of two other principles of Internet governance: non-discrimination and transparency
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.Conversely, in Europe, the debate regarding Net Neutrality appeared later, in particular because Europehad implemented a strong regulatory framework regarding local loop unbundling and to supportcompetition between providers. In 2007 and later in 2009 however, the discussions on the newdirectives known as the Telecoms Package
7
 
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caused heated debates on neutrality, in particular on the
4
The cable-operator provider Comcast had been sentenced for blocking content using the exchange protocol peer to peer "BitTorrent" unrelated to periods of congestion or size of files and without transparency to its customers. However, thatdecision was overturned by the federal Court of Appeals of Washington DC in April 2010.
5
In “La neutralité de l'Internet, un atout pour le développement de l'économie numérique” , French Government Report tothe Parliament established under Article 33 of Law No. 2009-1572 dated December 17, 2009 on the fight against the digitaldivide: available on : http://www.laquadrature.net/files/Rapport_Net_Neutralite.pdf 
6
In “Consultation publique sur la Neutralité du Net”, April 9 to May 17, 2010, the Secretariat of State prospectivedevelopment of the digital economy: http://www.telecom.gouv.fr/fonds_documentaire/consultations/10
7
The Telecoms Package is composed of two directives Better Regulation (amending the Framework Directive, "Access" and“authorization" of 2002), and “rights of citizens"(revising the guidelines" universal service "and" privacy "of 2002) to betransposed into national law by May 15, 2011.

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