An Essay on Network Neutrality

The History Behind Network Neutrality

Network Neutrality, usually just referred to as net neutrality, is a relatively new issue in the United States compared to some of the other problems that public policy has taken on and solved in the past. Unfortunately, this fact has caused many to regard network neutrality as a passing issue, one that would ultimately solve itself without any government intervention. In reality, however, net neutrality is a very serious issue that has the ability to affect nearly everyone in this quickly growing digital world.

Beginning with the invention of the telegram in the 1860s, the underlying ideas behind network neutrality became embedded in American communication systems. Under United States law, providers of telegram – and later telephone – services were classified as “common carriers”. This means that all communications that passed through them were treated with equal importance no matter what the source, destination, or contents of the message may be.

As electronic communication became widespread throughout America, Franklin D. Roosevelt created the Federal Communications Commission (FCC) via the Communications Act of 1934. The purpose of the FCC was to regulate all radio spectrum use and to manage interstate communications.

On April 30, 1993, the invention of the World Wide Web by Sir Tim Berners-Lee at CERN marked the beginning of the rapid growth in demand for consumer Internet service. At the time, Internet service was viewed by the FCC – and thus American law – as a subset of the telecommunications sector. This concept would last for only a short period of time.

With the growing demand for high-speed broadband connections, Internet Service Providers (ISPs) looked for mediums other than telephone-based dial-up over which they could deliver Internet connectivity. Such mediums included the cable in use by television services and unused spectrum on the copper wire in use by telephone companies. These two methods of providing connectivity became known as Cable Internet and Digital Subscriber Lines (DSL) respectively. Both of these Internet-capable mediums were already deployed widely throughout America and so they quickly became the primary choice for consumers seeking broadband connections.

An important difference between Cable Internet and DSL at the time, was that the FCC viewed Cable Internet as an Information Service, while DSL remained classified as a Telecommunications Service. Under current law, Information Service Providers were not subject to the obligations involved with being a common carrier. After intense lobbying from DSL-based ISPs, the FCC removed their common carrier obligations by reclassifying DSL as an Information Service on August 5, 2005 – thus putting it on the same playing field as Cable Internet. After DSL providers became free of the restriction of having to be a common carrier, the net neutrality debate suddenly became the center of attention for Internet, fair-market, and anti-censorship activists.

The Current Policy and Why It Isn’t Working

At the current moment, Congress has not created any policy either embracing or rejecting network neutrality. However, there have been many failed attempts to create legislation that would resolve the issue of net neutrality once and for all. The following attempts at writing network neutrality into legislation were introduced and killed by the end of the 109^th Congress: The Internet Non-Discrimination Act of 2006 (S. 2360), the Communications, Opportunity, Promotion and Enhancement Act of 2006 (H.R. 5252), and the Internet Freedom and Non-Discrimination Act of 2006 (H.R. 5417). The Network Neutrality Act of 2006 (H.R. 5273) was referred to the Subcommittee on Telecommunications and the Internet; the 2007 Internet Freedom Preservation Act (S. 215) was read twice and referred to the Committee on Commerce, Science, and Transportation; and the Internet Freedom Preservation Act of 2008 (H.R. 5353) was recently introduced to the committee, House Energy and Commerce.

Although there are many people and corporations who fear government regulation of the Internet and advocate “stay the course” mentality, one must realize that relying on the market to self-regulate is not always a good idea. The majority of Internet Service Providers practice network neutrality mostly because there is no other option at the moment. However, it can be seen that given the chance, ISPs will break network neutrality if it is in their own best interests. Such examples of ISPs breaking net neutrality include the recent occurrences of Cox Cable, Comcast Cable, and Madison River Communications filtering certain services off of their customer’s connections.

Essentially, ISPs are looking to be able to create ways in which they can compartmentalize pieces of the Internet and sell them back to their customers individually and for higher rates. For example, on any network neutral ISP, two people connected to the Internet can then connect to each other and exchange data using any arbitrary Internet application. On a non-neutral ISP, these two users might be blocked from connecting to each other in normal ways and instead be forced to use a specific ISP-mandated application that would carry some additional charge.

Undoubtedly the described scenario can be deemed anticompetitive for various reasons. The first reason is that the hypothetical ISP is charging the consumer twice for what is essentially the same exact service. When one user connects to the Internet, they should be able to send and receive any type of data without restriction. In this example, the user is being charged once for their connection, and again for the use of an (ISP-mandated) application. The second reason that the above scenario is anticompetitive is that it effectively locks out any third-party company that wishes to provide a similar service over the Internet by not allowing customers of that ISP to use said third-party service. Although one may say it is easy to just switch to an ISP that doesn’t have as aggressive of a filter, the problem with lies in the fact that the anti-competitive practices of one major ISP affects all other Internet users whose traffic must be routed through their network, and makes it difficult to get away from the problem by just changing their service provider.

The New Policy Being Proposed

The new policy being proposed is one that would stop the above situation from ever occurring by making network neutrality a requirement for any ISP that wishes to operate within the United States. This newly proposed policy extends upon two already existing sets of legislation in the United States – the Communications Act of 1934 and United States Antitrust Laws. The first part of this proposed policy aims to make a legal definition of what ISPs must do in order to meet the requirements of network neutrality. The second part of this proposed policy explains how the U.S. government will be used to ensure that network neutrality is enforced and protected.

An ISP must fulfill the following requirements in order to be considered network neutral:

• 1. The ISP must carry all traffic from one peer on the network to its endpoint at a minimum of the lowest guaranteed connection speed being sold to either peer, if both peers are connected to the same network.
• 2. If one peer is on another network, then the ISP needs to only be concerned with the portion of the connection that runs through their network.
• 3. Should the ISP choose to implement quality of service (QoS) handling, the ISP must not discriminate between the source, destination, or contents of the data being handled – only the type of data as it pertains to a particular service.
  • a. If QoS is implemented, the speed of the connection within the network of the ISP must not drop below the minimum guaranteed speed being sold.
  • b. All QoS handling policies must be made publicly known.
• 4. The ISP must not block, filter, censor, modify, or forge any forms of data being transferred between any two points on its network with the sole exception of filtering spam, viruses/malware, illegal content, or content explicitly requested to be filtered by one of the peers.
  • a. An ISP must not violate the First Constitutional Amendment, which grants freedom of speech.

In addition to the above rules regarding maintaining a neutral network, an ISP must also follow these rules that ensure fair competition between ISP-based Internet applications and Internet application provided by third parties:

• 1. An ISP may charge for a connection with a given quality of service, amount of bandwidth, speed of connection, and service agreement, but an ISP may not force a customer to bundle additional non-critical or non-related services or applications onto their Internet connection.
• 2. An ISP has the right to offer their own additional Internet-based applications, but the ISP must not purposely degrade, charge extra for, or otherwise interfere with access to any particular Internet application handled by any other company.
  • a. This is to prevent an ISP from unfairly eliminating competition in non-ISP markets that they may wish to expand into by abusing their monopoly.
• 3. An ISP that abuses its monopoly position to stifle competition or violate network neutrality may become subject to a lawsuit.
  • a. All ISPs are subject to the same antitrust and anti-monopoly laws that exist for any other business, with the exception of local (municipal), state, or federally run public ISPs.
• 4. The FCC will classify the Internet as a new subset of Information Services that has traits similar to those employed by common carriers.
• 5. The FCC is made responsible for handling complains from customers and conducting its usual reports on the state of Internet communications.
• 6. The FCC has the ability to fine or reprimand any ISP that exhibits unacceptable behavior.

This new policy is a vast improvement over the status quo due to the fact that it provides clear-cut rules for what an ISP must do in order to provide fair service to U.S. customers and what will happen should they choose not to. Essentially, it places the same heavy government control currently exerted on other communication services (radio, telephone, etc.) on ISPs and prevents them from being able to abuse the monopoly that many ISPs currently enjoy.

Support and Opposition of This Policy

One of the major reasons why all of the past attempts to make network neutrality into legislation have failed is because of opposition from a fairly large and influential number of people. Most large ISPs claim that the government shouldn’t regulate the Internet because they do not fully understand how it works. They say that network neutrality is not easy to implement on a technical level and that government regulation is detrimental to the economy. In fact, 45 companies (including AT&T, Quest, and 3M) with interests in a non-neutral Internet have created a coalition named “Hands Off The Internet” that aims to fight any proposals encouraging regulation of the Internet and its related markets.

A number of very influential figureheads have stepped up and spoken out about why they feel government-mandated network neutrality is a bad idea. These include Robert Pepper (the senior managing director at Cisco Systems), Bob Kahn, and Dave Farber (two of the creators of the Internet).

Of course, with any group that opposes government regulation of a sector, there is always a group that supports it. The most prominent of these groups is the “Save The Internet” coalition. With 848 members on board – including many non-profit organizations, small businesses and ISPs, and a large number of individual bloggers – “Save The Internet” aims to urge Congress to preserve Network Neutrality, which they consider to be the “First Amendment of the Internet”. The Electronic Frontier Foundation (EFF) has also shown support for network neutrality by providing legal aid in the recent suite against Comcast’s recent throttling of certain Internet applications. Ed Markey of Massachusetts and Chip Pickering of Mississippi are two representatives fighting on the congressional forefront for network neutrality.

Why This New Policy Will Be a Success

As the everyday use of Internet applications becomes more and more common for the typical American, network neutrality will become an issue that affects more than just a small subset of the public. People will begin to realize that it is unfair for their Internet Service Providers to filter or degrade access to useful third party services, applications, and content that should otherwise be guaranteed to work properly with each payment they make to connect their devices to the Internet.

Even if network neutrality doesn’t catch on right away, the added costs and stifling of online innovation will cause congress to finally feel the need to apply the legislation proposed in this paper and enforce network neutrality within America. It is against the spirit of freedom and capitalism in American to do otherwise.

List of Sources Used

• http://news.zdnet.com/2100-1035_22-144079.html
• http://www.techcrunch.com/2008/08/31/the-net-neutrality-debate-all-on-one-page/
• http://news.cnet.com/8301-1035_3-10053045-94.html
• http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=1234951
• http://www.fcc.gov/aboutus.html
• http://www.nethistory.info/History%20of%20the%20Internet/web.html
• http://www.savetheinternet.com/=members
• http://handsoff.org/blog/member-organizations/
• http://www.technewsworld.com/story/Ii1IJ10PgRjmkt/Network-Neutrality-Avoiding-a-Net-Loss.xhtml
• http://vasarely.wiwi.hu-berlin.de/kahn_net_neutrality_transcript.html
• http://www.washingtonpost.com/wp-dyn/content/article/2007/01/18/AR2007011801508.html
• http://www.savetheinternet.com/blog/2008/02/12/internet-bill-would-bar-discrimination-engage-the-public-on-better-policy/
• http://www.eff.org/wp/packet-forgery-isps-report-comcast-affair
• http://www.heritage.org/research/internetandtechnology/wm1696.cfm
• http://www.siliconvalleywatcher.com/mt/archives/2006/06/craigslist_is_b.php
• http://www.engadget.com/2007/03/29/net-neutrality-and-the-fcc-whats-being-done-to-preserve-it/

Sources for Bills Cited

• http://www.govtrack.us/congress/bill.xpd?bill=s109-2360
• http://www.govtrack.us/congress/bill.xpd?bill=h109-5252
• http://www.govtrack.us/congress/bill.xpd?bill=h109-5417
• http://www.govtrack.us/congress/bill.xpd?bill=h109-5273
• http://www.govtrack.us/congress/bill.xpd?bill=s110-215
• http://www.govtrack.us/congress/bill.xpd?bill=h110-5353