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By Alok Bhardwaj November 27, 2007
I celebrate myself, and sing myself, And what I assume you shall assume, For every atom belonging to me as good belongs to you. Walt Whitman. Leaves of Grass. For every packet sent by me as good as one sent by you. A line the just and democratic Walt Whitman would pen were he alive today in response to the need for legislation to protect net neutrality. The internet, after ten years of being a mass media, is the most important mass media in the world. It’s the most democratic, open forum for free speech and expression that exists. Like freedom and democracy, it must be protected from those who would use their power to debase those ideals in order to unfairly secure more power and profit. Today, we face not just a potential but an actual threat in the guise of anti-net neutrality or what should more accurately and succinctly be called net prejudice. Net neutrality is the principle that every website (of the same class—more on “class” later) should be treated equally and not given any preferential treatment in respect to other websites. In other words, if you click on Google and on Yahoo, your internet service provider (ISP) will use the fastest possible routes to deliver each website to you. It doesn’t have special routes or other preferences for one site versus another. Net Neutrality doesn’t prevent variations in overall service—in other words, it may be that you pay twice as much as your neighbor in order to have more bandwidth which could lead to Yahoo loading up faster on your computer than it does on hers even if you both clicked on Yahoo at the same time. Service providers can and should provide various tiers of overall service depending on your needs, but once you subscribe to a given tier of service, there shouldn’t be additional fees levied on you or on the sites you access for what I call prejudicial service. Fee-based net prejudice, what telecommunications and internet service companies are arguing they should be allowed to continue informally and begin more formally to practice, would allow your internet service provider to charge websites an extra fee which would enable a website which pays to reach you faster than other websites. To take our above example, let’s suppose Yahoo agrees to pay your service provider some fee and Google doesn’t—then Google, who doesn’t pay this fee, would come to you later than Yahoo, who does pay, even though you clicked on them at the exact same time. If your first instinct is that this sounds more like a bribe (from Yahoo) then an actual service that’s been provided—that’s exactly right. While there are scenarios in which fee-based net prejudice could lead to genuine investment and services, when the design and the current state of the internet is examined, there is overwhelming evidence and
reason to believe that fee-based net prejudice will have only pernicious outcomes without any benefits and massive harms for consumers and the world. The essential difference is that there are various ways an internet service provider could provide “better service”. It could actually deliver websites to you faster or it could artificially slow down certain websites that you’ve also requested to give the illusion that other websites are getting to you faster. The only reasonable scenarios we’ll see are of the latter nature. Two terms will be used basically interchangeably in this essay—net prejudice and quality of service. Both terms refer to the same thing—preferential treatment of certain sites. Quality of service is a technical term for preferential treatment of different internet data. Net prejudice is a term I’ve coined to describe the practice of QoS in contrast to net neutrality. It should be noted that net prejudice is itself not necessarily a bad thing and in fact is a feature of the newest internet protocols (IPv6). What is pernicious (or so we will find) is the practice of service providers charging for net prejudice, fee-based net prejudice, as well as any non class-based net prejudice (i.e. for your service provider to be allowed to block or slow down sites your provider “doesn’t like”). INTERNET TECHNOLOGY The internet works via a fundamentally different technology from phone lines and mail delivery. The internet uses what’s called a packet system. When you make a phone call, there’s a single line that’s dedicated to you and the person you’re calling. When you load up the Google website, there is no dedicated line between you and Google. Instead, Google’s webpage arrives at your computer as many “packets”—each packet containing some information which your internet browser assembles into a webpage. Each packet may have taken a separate route from Google to arrive to you—depending on which route was the most open or the fastest. An analogous situation with the post office would be if when you gave them one of your letters, they cut it up into a hundred small pieces and sent each piece to your destination via some different route and then when all the pieces arrived there, they glued your letter back together and delivered it to your recipient. What works for the internet is for obvious reasons impractical and inefficient (not to mention really strange) for the post office! Similarly, the post office offers services that are impractical and inefficient for the internet (as we will see) such as a wide variety of delivery speeds. When the post office delivers your letter overnight, it’s delivering a genuine service. Your letter is transported by a plane or planes rather than via trucks. The post office has to pay more and invest more capital to offer that service. Is it possible for internet providers to offer varying delivery speeds the way the post office does? There are basically three possibilities. Your internet provider could invest in new long haul pipes data carrying cables, new last mile cables or offer a pseudo-service
of letting websites cut in line for money. In the latter case of offering a pseudo-service, your internet provider would practice net prejudice by letting Yahoo, say, load up before other websites you want to see— essentially cutting in line. This is a pseudo-service since your internet provider let Yahoo go first rather than actually improve your internet service in a fundamental way or deliver Yahoo in a fundamentally different way than it delivered the other websites (all of them came to you via the same last mile cables and the same set of long haul cables). Your internet provider does need a lot of equipment in order to be able to discriminate (or practice net prejudice) but it is not really a genuine service but rather a feature of the network. This pseudo-service pretends to make Yahoo get to you faster but actually it just lets Yahoo cut in line in front of other websites or services you also want to use. Letting Yahoo cut in line, the pseudo-service scenario, in a sense makes you pay for the service through your time—you have to wait longer for other websites you want to see. Though I’ve characterized net prejudice as a pseudo-service, that’s probably only a fair characterization of fee-based net prejudice. Non-fee-based net prejudice is better thought of as a feature of the network. The newest internet protocols, IPv6, for example have net prejudice as a feature. It’s actually not clear at all if this feature will improve service across the network (you probably won’t tell the difference or know when most networks switch to IPv6), but theoretically there are good cases for building net prejudice into a network. Emergency calls in the phone network is a good example—suppose all the phone lines are busy and someone’s calling 911, one would think that some other call should be shut down so that the 911 call can get through, and that is in fact how the phone network basically works. Without net prejudice, equivalent scenarios where there are say emergency message packets waiting in line behind my YouTube packets, there’s no way to be able to make my YouTube packets wait to get the emergency message packets through. Any fee-based net prejudice without new or dedicated cables for the paying websites is going to result in a pseudo service. Post office prices reflect a genuine difference in service and that it’s cheaper to transport via truck than by plane. For the internet, however, it’s a zero-sum game when your provider is using the same cables. It’s a zerosum game in that if someone’s website gets to you faster it’s because someone else’s website gets to you slower (both of which you’ve chosen to load up)—so net prejudice is simply a feature of the network and not a genuine additional service your provider is investing significantly to offer. WHY CAN’T ISPs LAY OUT NEW CABLES FOR WEBSITES THAT WILL PAY FOR IT? They can. Let’s analyze what they could do and why they’d do it. There are two types of broad categories of cables that carry internet data—long haul and last mile cables. There is still a glut of long haul cables (much so-called dark fiber is available and called dark because it is unlit or unused at the moment)—cables which go from city to city or across
the whole country—from the over-investment in the long haul a few years ago. Google and other sites are thus already whizzing through the long haul very quickly and have no need to pay for any new faster long haul cables to travel through. The bottleneck in the network is in the last mile, the cables that go into your home. The cables or pipes that go into your home can only support so much data and therein we have the problem when you want to download multiple websites. When net prejudice is practiced as a pseudo service, it is (or rather would presumably be) at the last mile where your internet provider lets Google cut in line in order to make it “load up faster”. Rather than as a pseudo-service, could net prejudice lead to an investment in last mile cables and thus a genuine service? Unfortunately, net prejudice does not on the face of it lead logically to any investment in last mile cables. At present, you’re paying money every month for access to the entire internet—would you pay say an extra $10 a month (or more or less) if you could get a significantly faster internet connection in your home? For the entire internet mind you, not just Google or Yahoo. Probably many of you would. But you of course don’t have that option…there’s a good reason for it. Last mile investments and upgrades are very, very expensive. If they’re not offering it to you for the whole internet, it is not reasonable that Google and Yahoo are going to be able to foot the bill for a special cable to be laid just for them into your house! The idea that there would even be a special last mile cable going into your home just for Yahoo or Google is laughable and economically nonsensical. To the extent that the internet providers intend to practice net prejudice ethically, this would have to be their proposal. Once we stop chuckling, it we take it seriously, a special cable into your home just for Yahoo, then it becomes genuinely scary —it would kill the entire idea of the internet whose shibboleth is democracy and freedom. That scenario is a variant of the extortion scenario of fee-based net prejudice. The way genuine net prejudice could theoretically work economically is if there are a few websites that effectively control most people’s web activities (and have a lot of revenues) upon whom your internet service provider can piggyback to both strengthen the website’s marketshare as well as get significant kickbacks (or “revenues”). In other words, genuine net prejudice would hinge on massive consolidation in the net sector—only some such behomoth could possibly afford to foot the bill for such massive capital expenditures as service providers would require to upgrade last mile service. It’s no accident that internet service providers are clamoring for fee-based net prejudice at the moment of Google’s ascendancy for example. To summarize, there is no need for capital investment in the long haul for the most part so no extra service can be provided there. The bottleneck is in the last mile or the cables to your home and the genuine net prejudice solution for the last mile is economically absurd as well as theoretically execrable. The only practical scenario for fee-based net prejudice is pernicious where internet providers offer it is as a pseudo service. A pseudo service whereby your net provider will
offer “preferential service” to websites that pay—preferential service meaning the website can cut in front of the other sites you want to see or be artificially slowed down (that’s extremely pernicious net prejudice). This is akin to bribery. Any practically feasible measure that breaks net neutrality is essentially a method for your internet service provider to extract bribes which you as the consumer eventually pay for by waiting longer for other websites you want to visit. YOU TOO COULD SUFFER (ALONG WITH GOOGLE ET. AL.) FROM EXTRA CHARGES THROUGH FEE-BASED NET PREJUDICE In fee-based net prejudice schemes, your service provider could not only charge the websites you visit but also charge you as well. Internet users such as yourself could suffer extortion-type demands from internet providers practicing fee-based net prejudice. Suppose your internet service provider notices you (and a lot of other people) use the site youtube a lot. They can not only charge youtube for what they claim is better service, but they can also charge you an extra fee for every youtube packet delivered. You may ask your provider what’s so special about youtube packets that I have to pay extra fees for them, and your provider will respond that they’re treated very special in their quality of service system…which we know now is a euphemism for letting those packets jump ahead in line of the other packets you also want to see. It’s extraordinary to consider, though, that bribery is practically speaking in fact the best case. The worst case is when your service provider attempts to extort other websites. They can tell Google, pay us or we’ll make sure your pages wait a very long time before reaching your viewers. Even worse is when your service provider blocks Google in order to force you to use the VerizonSearchEngine. Extortion or bribery or tyranny—in neither case is any genuine service being provided. And if net prejudice as a pseudo-service is scary, then genuine net service is horrifying and would effectively turn the democratic internet into a monopolized tyranny. FAIR SCHEMES FOR NET PREJUDICE: FEE-LESS PREFERENTIAL PACKET TREATMENT BY CLASS For specific cases, there may be compelling reasons to violate net neutrality—in this case to give preferential treatment to certain packets based on the packet type. There are fair ways in order to give preferential packet treatment and reasons for such a treatment. For example, audio and video data packets as a class may be deserving of some preferential treatment. Here, there is a logic to preferential treatment. Audio and video packets need to be played in a specific order otherwise it’s going to sound or look like gobbledy-gook (whereas a webpage could load from bottom to top or side to side, etc.—it doesn’t really matter since you can read different parts as they load e.g. you can read text while you wait for the pictures to load). Here, though, it is the class or type of packet being sent, not who sent it, that would elicit preferential treatment. Such a system should not discriminate among packets of the same class nor should any fees be involved for
preferential treatment or it could lead to the abuses and problems described above of net prejudice. A preferential system that discriminates between classes of packets, whether audio, video or otherwise, could offer a genuine benefit. This system is a bit akin to airlines offering special treatment for the elderly or for children traveling alone—anyone in that particular class (whether elderly or being a child traveling alone) will be given certain preferential treatment. Another example we discussed before is the preferential status given emergency phone calls within the otherwise neutral (by legislation) public telecommunications network (emergency-related governmental packets may be given special status on the internet for example). As discussed before, the technical term used (or euphemism) for adding preferential packet treatment or net prejudice to a network is quality of service or QoS. Much research indicates that theoretically QoS benefits to the network are vastly outweighed by increased bandwidth across the network which is far cheaper and easier to implement than highly specialized QoS systems. Nevertheless, to the extent QoS can improve the public internet, it should certainly be used and can be used in the spirit of Net Neutrality according to preferential packet treatment by class. QoS is integrated into the new IPv6 internet protocol scheme which is at present being implemented. IPv6 is going to be a feature of the internet in much the same way that IPv4; it doesn’t represent a fundamental change in the services, level of investment or anything else that relates to the business of internet service providers so there isn’t prima facie any reason for them to add extra fees for QoS. When QoS is implemented in this scheme (which is a fair scheme), preferential packet treatment for certain classes of packets becomes part of the network protocol. Service providers aren’t really providing any improved service, they’re simply continuing to adhere to new internet protocols. They haven’t actually made any new capital investments (only what should be considered maintenance investments) and thus haven’t invested in providing any new services. Installing new routers and other equipment that routes packets on the internet is routine for internet providers as is conforming to new internet standards. One has to conclude that the tremendous interest in net prejudice under the guise of QoS by internet providers isn’t based on any great promise of QoS nor any well-intentioned service but simply that it offers internet providers extortion-type pricing schemes. WHY DOES ANYONE SUPPORT FEE-BASED NET PREJUDICE? Telecommunications companies support fee-based net prejudice because they would gain more money—I purposefully did not use the word “earn.” To defeat net neutrality legislation, they have liberally spread money to various lobbyists and political groups which has successfully influenced many politicians to favor net prejudice and defeat legislation which would have protected the internet as we know it. Telecommunications equipment makers support net prejudice because they stand to make a whole lot of new
prejudiced routers, switches, software, et cetera from they which they stand to gain money. In a word, greed, what’s driving fee-based net prejudice is greed Politicians seem to be prejudicially favor the telecommunications companies, because their public statements for net prejudice and against net neutrality are incoherent to put it mildly. Here’s a Senator Ted Stevens on allowing fee-based net prejudice, “I just the other day got, an internet was sent by my staff at 10 o'clock in the morning on Friday and I just got it yesterday. Why? Because it got tangled up with all these things going on the internet commercially….it gets in line and its going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.” It’s fairly clear that Stevens lacks an understanding of even the most rudimentary aspects of basic internet technologies like e-mail and information transmission, so it’s very strange to find him to have such a strong opinion for enabling fee-based net prejudice. Telecommunications lawyers are slightly more coherent than Senator Stevens. Many points were made for instance in a transcribed (informally) speech at the Fordham Law School by William Barr, Verizon's General Counsel, on January 17, 2007. He made some points that are revealing: for instance pointing out that Google’s Market capitalization is twice that of Verizon’s, and that ad revenues are going up and broadband prices are going down. The implication is clear: telecommunication companies envy Google’s revenues and want part of Google’s revenues (whether fairly or not was not discussed). A oft-repeated phrase which originated from one of the top managers of an internet service provider is that websites are using our pipes for free. That’s akin to FedEx complaining that Amazon.com uses its service for free because Amazon doesn’t pay anything when its products are shipped to you (you presumably pay for it). Another reason given for requiring net prejudice by internet service providers is the requirement of low latency (which basically means very fast response times) by new services like multi-player gaming. Here, the solution discussed earlier of packet classbased discrimination can solve the problem. Webpages from gaming sites thus can have their packets preferentially treated as a class, the same way the elderly and unaccompanied children get special treatment from airlines. Practicing net prejudice by charging gaming websites for preferential treatment will again result in the farce or pseudo-service of the ISP simply letting some packets you’ve requested cut in line in from of other packets (that’s what happens with preferential packet treatment but the sites are not being charged for it just as that’s what happens with the elderly and they’re not charged for it by the airlines). What about my neighbor, the internet gamer, who’s getting all his packets ahead of mine? Isn’t that unfair? Shouldn’t he have to pay more? The beauty of the internet and building QoS into a network properly is that you should still be receiving whatever pages you need in a timely fashion such that you won’t know if all your neighbors are line-cutting gamers or if they’re getting best effort class delivery for the sites they use (best effort is the lowest level of service). Actually, that’s not entirely accurate, if we all become internet gamers overnight, then all the packets on the net (gaming packets) will again be
in the same class which is probably not fast enough to be fun. In this case, then, gaming service providers will need improve their service (using say CDNs which are explained below) and the network as a whole will need to be improved. What if the internet service providers want to genuinely make a network with lower latency? They could, again, law down special pipes dedicated to gaming but that’s as discussed impossible economically. Their best choice is to improve their networks as a whole as much as they can and then establish new categories of classes of packets e.g. the gaming class which will receive some preferential treatment. If they want to go further, they can establish a network of servers as close as possible to internet users to host the gaming websites and provide low latency on the server side—there are already a number of such networks which are called content delivery networks (CDNs). Ultimately the support of low latency is in the network as a whole (assuming providers don’t build a separate network just for gaming) and either the network supports low latency or it doesn’t. If the network supports low latency, it’s simply not fair as well as a waste of effort to build prejudicial routers for the sole purpose of enabling providers to charge what amount to extortion fees from websites who will be told: either pay us or have your site artificially slowed down. Some have questioned whether a net neutrality preserving law (or more from the perspective of this article, legislation preventing fee-based net prejudice) can be framed in such a way that it doesn’t prevent internet service providers from stopping spam (junk e-mails) and hacker attacks on their servers. Actually, it seems quite simple to frame the law in such a way as to not prevent such activities. The law could go something like, “internet service providers are charged to deliver genuine customer requests without prejudice.” Thus, if the ISP operates to stop e-mails it has good reason to suspect are not requested or server requests that are not sincere (i.e. an attack)—it legally can block them. There’s lastly a common sentiment that either it’s not clear how to protect net neutrality even though it is a good idea or net neutrality is for the most part being practiced so why bother protecting it? In terms of the former, there has never been a law in the governmental domain that was without exception. This applies most generously to the most sacred law of the country, the Constitution. The fact that we generally enjoy freedom of speech today, however, is no reason to throw the First Amendment and the rest of the Constitution out the window. Nor is the fact that there are exceptions to free speech and the First Amendment of the Constitution a reason to believe that the country would have been better off without it! The key principles and ideas for protecting net neutrality (and preventing fee-based net prejudice) have been codified into law many times for over a hundred years and have functioned fairly well—they bear partial responsibility for the fairly advanced state of our present-day telecommunications network. Save X. Don’t do Y which would destroy X. Both statements say the same thing but legally if implemented could have very different consequences. Similarly, we could make it law that net neutrality be obeyed. We could also have the law that pernicious net
prejudice including fee-based net prejudice be outlawed (thus preserving net neutrality). The latter is more precise, less open to vague interpretation, and probably would more effectively preserve the democratic and free spirit of the internet while also allowing it to evolve to better and better technologies. Can pernicious net prejudice be outlawed effectively by legislation? Yes. A law preventing internet service providers from charging internet users, content providers or any other web services for preferential packet treatment (or QoS) on public internet traffic would remove much of the incentive for many of the ill outcomes we’ve encountered. Going further to only allow class-based net prejudice and to disallow selective site discrimination or promotion would further secure the internet as a free and democratic medium. Such legislation would allow internet providers to adopt preferential packet treatment or practice net prejudice fairly if internet standard boards become convinced that that’s the best way to continue to improve how the internet functions and adopt such a scheme (such IPv6). FEE-BASED NET PREJUDICE WOULD BE PROBABLY THE FIRST FOR-PROFIT SERVICE IN HISTORY FOR WHICH EVERY MAJOR CUSTOMER (AND VIRTUALLY ALL CUSTOMRES) ARE AGAINST IT If Google, Yahoo and Microsoft felt that fee-based net prejudice would provide a genuine service, wouldn’t they support it? Why would they be against it if it meant their sites would get new pipes and travel to you faster? Without putting words in anyone’s mouth, they as well as every major website is aware that fee-based net prejudice will amount to the pseudo service scenario of bribery or more likely extortion. That’s why they have been among the most vocal pro net neutrality advocates. They are joined by an extraordinarily broad coalition including other tech companies such as eBay and Intel as well as a huge, diverse collection of non-technology organizations such as MoveOn.org, AARP, the NRA, the Christian Coalition and the Consumer Federation. TELECOMMUNICATIONS COMPANIES HAVE ALREADY PRACTICED A PERNICIOUS ASPECT OF NET PREJUDICE BY BLOCKING COMPETING WEBSITES The biggest fear of net prejudice is not just that ISPs will extort money from internet site operators—pay us or you’ll arrive with a large delay—but that they will block altogether sites they don’t like. While internet providers claim that they would not block websites or their competitors would have an advantage over them, the costs of building out the last mile give them a monopoly or an oligopoly in their respective service areas. This means they have a fair amount of power over you. They have already exercised such power. In South Korea, a company which provides consumer internet service blocked its three million users from a video website that was competing against (and more popular than) the company’s own video website. A North Carolina ISP blocked its users from using
any web-based phone service other than its own. Canadian internet provider Telus blocked access to a Telecommunication Workers Union website during their strike that effectively blocked hundreds of additional websites in the process. AOL blocked all emails that mentioned dearaol.com which is a website against AOL’s proposed pay-tosend e-mail campaign. If net neutrality is not legislatively preserved, that is of course just the beginning of what the internet under net prejudice will look like. Imagine if Time Warner cable suddenly decided Google was defeating AOL too severely and blocked your access to Google, offering an AOL search engine as a replacement. While it is unlikely Time Warner would attempt a wholesale replacement of every website with sites of its own choice, as we have seen, blocking a site here and there has and will continue to happen. Without Congressional protection of net neutrality, that could happen tomorrow. Outraged consumers could switch from Time Warner to DSL service, it’s true, but unfortunately many are not within the correct distance of their telephone provider offices to get DSL service…and would be stuck then with Time Warner Cable and no Google. Cable and phone lines are very expensive to install and thus lend themselves to natural monopolies—that’s why you very likely have only one cable company serving you and why AT&T was forced to open up access to its phone lines back in 1984. COMMON CARRIER LAWS AND THE LONGSTANDING PRECEDENT FOR REGULATED, PREFERENTIAL TREATMENT The legal status of telecommunications, cable, and internet service provider companies is in flux (as this article is a testament to) and even before the internet was rather complicated. We can’t thus get into too many details, but a brief overview is necessary so as to understand why net neutrality is threatened. There is a long history of government mandated network neutrality via what’s called common carrier status. To be a common carrier, one is required to be non-prejudicial in terms of what content you carry so if you operate an airline, you can’t stop carrying redhaired passengers on your plane, you must carry anyone. You also have immunity from what any of your content does. So if the red-haired posse is off to commit a crime—the airline is not responsible. Similarly, if the red-haired posse planned all the details of their crime via phones, the phone companies are also immune from any responsibility. As a common carrier, then, you must carry any content but you’re similarly immune from responsibility for any damages caused by that content. A bargain then was struck. You’ve opened your service to the general public and in exchange for treating everyone in the public equally (more specifically everyone paying for the same level of service e.g. as an airline you can sell 1rst class and coach seats but you must treat everyone in each class equally), you’re granted immunity from possible crimes or other ill ends to which the public may use your service. Telecommunications companies have historically been considered common carriers. Of
late, every telecommunications carrier is also involved in the internet in some way and they argued that because of that they should be in respect to their internet activities be considered information providers (and not telecommunications providers) who are not subject to common carrier rules. The Supreme Court agreed with the telecommunications companies and their legal, federal status is now as information carriers. Are telecommunications companies now liable for the content they carry? Sometimes it seems you can have your cake and eat it too. Congress passed the Communications Decency Act and another law which protects information carriers from any potential liabilities for the content they carry. Does this immunity come with any price or any responsibility from Congress? As of now, no. There are no network neutrality type provisions that are federally mandatory for information carriers. Losing common carrier status for telecommunications companies means they may have to pay extra taxes like cable companies do (though the cable companies also pay party for being granted an effective monopoly status)…needless to say legalities are complicated. A decent solution would be to lose the taxes on cable companies as well as lose any monopoly status, but federally mandate anti-pernicious net prejudice in exchange for right of way through public land and immunity provisions. That seems a fair bargain. If internet providers insist that they should be able to level the playing field by being able to enact fee-based net prejudice, then at the very least it should be mandated that the internet providers themselves also level the playing field by opening up their networks to competing service providers—competition would likely preserve net neutrality on its own (right now there isn’t much competition on the internet service provider end—you’re lucky if you have a choice between cable and DSL). While internet providers complain that they don’t make any money (I’d personally be happy to run Verizon and I will wage my entire future life earnings that I’ll make the shareholders money) and that websites are using our pipes for free, the internet providers don’t seem to mind using city, state, federal and our personal land for free (again this doesn’t apply to cable companies as of now who do pay taxes). State common carrier laws. In a quite interesting twist on the debate about legislation, Daniel Berninger has dug up that even if internet service providers are not “common carriers” according to the federal government, they must effectively operate as “common carriers” according to most states’ laws or risk losing their rights to have pipes travel in those states. Here’s the critical excerpt: The obligations established on a state by state basis all specify that access to state right-of-way at largely no cost or limit requires common carrier status (aka net neutrality.) The loss of common carrier status invalidates the contracts. The Bell companies have no access to state right-of-way for deployment of private, closed,
non-neutral, non-common carrier network deployments. Maryland represents a typical case. The authority of Maryland to regulate telephone companies shows up in the Maryland Constitution Article 12 titled “Public Works” noting among other things that “the Directors of all said Public Works guard the public interest, and prevent the establishment of tolls which shall discriminate against the interest of the citizens or products of this State.” The threat of losing state right-of-way in even one state not to mention multiple states is thus a bulwark against interest service providers attempting to violate the common carrier requirement of net neutrality. It’s still not nearly as strong a protection, however, as clear and precise federal law which would apply to every state. These state laws are still something and likely represent a significant deterrent. LONG HISTORY OF NECESSARY GOVERNMENTAL INTERVENTION IN TELECOMMUNICATIONS There is a long history of effective and necessary government regulation of the telecommunications industry. Governments all over the world have had to force various telecommunications networks to inter-connect, for example. Without such intervention, you’d have to have two or three or ten different phones to connect to every telecommunications network in your country not to mention worldwide! In 1984, AT&T was famously broken up and with spectacular results for the nation—consistently lower long distance costs and improved service. The passage of a net neutrality (or at the least an anti-fee-based net prejudice) bill is one of the most crucial steps that can be taken by the government today to preserve democracy, freedom and the internet. There is overwhelming reason and recent history to believe that net prejudice, apart from being inherently undesirable, will be used for only pernicious ends whether unfairly blocking competing websites or gaining money from providing no useful service to consumers by accepting bribes from or extorting website operators. There are many genuine ways to offer genuine services—lay more cables to consumers and charge for it, or develop better wireless technologies to transmit broadband access. While net prejudice easy way for internet providers to gain cash without much effort on their part, it is not fair to obtain money from what is effectively bribery or extortion and the rest of us would really pay as the internet as a place where we each have a voice would be destroyed. The United States Has Fallen Considerably Behind its World Peers in Broadband Penetration and Services Poor governmental policies (or superior policies in other countries) have the led the U.S. which had a slight lead over many countries in various broadband internet access metrics
to lag far behind most other peer countries. Japan, for example, has broadband access at speeds more than ten times faster than typically offered n the U.S. and at significantly lower prices as well. France offers far more services at better prices and faster speeds, despite six years ago having only a quarter of the broadband penetration that the U.S. had at that time. Where have U.S. governmental policies gone wrong? Economist Paul Krugman recently pointed out that it’s because the U.S. government of recent has been a prisoner of “freemarket ideology” even in a case of oligopoly where classical economics predicts free markets will be inefficient (NYTimes, 7/23/07). Government regulation particularly related to common carrier status has been a longstanding necessity in order for telecommunications companies to serve the consumer rather than have simply consumers serve them. As Krugman wrote, “…the world may look flat once you're in cyberspace - but to get there you need to go through a narrow passageway, down your phone line or down your TV cable. And if the companies controlling these passageways can behave like the robber barons of yore, levying whatever tolls they like on those who pass by, commerce suffers. America's Internet flourished in the dial-up era because federal regulators didn't let that happen - they forced local phone companies to act as common carriers, allowing competing service providers to use their lines. (ibid.)” France is a good example to briefly consider. The country’s broadband and overall internet services market has flourished thanks to French regulators’ insistence on strict local-loop unbundling—forcing incumbent telecommunications companies to open up their pipes for all companies to use. Half-hearted measures were attempted in the U.S., but failed. To reach internet nirvana for the U.S. is going to take much more than simply making fee-based net prejudice unlawful (which is the scope/topic of this article), but it is as we have found an absolutely essential start. CONCLUSIONS Net neutrality and net prejudice we’ve found are polysemous terms with multiple implications. It doesn’t seem from our analysis that fee-based net prejudice would have anything but pernicious effects. There’s also a big possibility for pernicious net prejudice if anything other than class-based net prejudice is allowed i.e. if service providers can pick particular websites to either prefer or discriminate against. In the spirit of this article, legislation to protect the net (and us!) can be framed quite simply with two provisions: 1. fees can not be levied in regards to QoS (or net prejudicial) features of the network by internet service providers, and 2. only class-based QoS or net prejudice be allowed. The first provision prevents your ISP from charging you and or the websites you visit for the pseudo-service of letting sites cut in line. The second provision insures that no sites
will be artificially slowed down or blocked by your ISP, so that AOL for instance wouldn’t be allowed to block e-mails from anti-AOL groups or were Google to buy or become an ISP, it couldn’t artificially slow down Yahoo’s search engine when you request it. New technologies such as WiMax can potentially open up the so-called last mile to more providers than just the cable and phone monopolies, but allowing any of the pernicious net prejudice practices in the meantime would set a very dangerous precedent, one which the free and democratic internet could be permanently stifled by. WHAT CAN I DO TO STOP PERNICIOUS NET PREJUDICE AND SAVE THE INTERNET? Urge your Senators and Representative to draft and support anti- pernicious net prejudice legislation. Try to get your state to pass explicit legislation outlawing pernicious net prejudice. If you’re a lawyer or think you can organize lawyers, challenge in State Court any fee-based or pernicious net prejudicial activities your Internet Service Provider (or any ISP) proposes. While I (of course) would like to see federal legislation proposed along the lines of the argument in this paper, there are bills which have been drafted which express strong support and protections for the idea of net neutrality and against pernicious net prejudice. While to date they have been defeated, they could be revived. These bills include the "Advanced Telecommunications and Opportunities Reform Act" (HR.5252) (originally this bill was known as the "Internet Freedom Preservation Act of 2006" (S. 2917)) proposed by Senators Snowe and Dorgan, “the Internet Freedom and Non-Discrimination Act of 2006” sponsored by Senators John Conyers and Jim Sensenbrenner, and “the Internet Non-Discrimination Act of 2006” by Senator Wyden.
About the author: Alok Bhardwaj was formerly a researcher at the Center for TeleInformation at the Columbia University Business School. He’s currently the founder and president of Hidden Reflex, a software and web services start-up company, as well as the proprietor of an educational services company in New York City. He earned a degree in philosophy from Princeton University in 1996.