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The Shifting World of Net Neutrality


Dan Reed
N.B.  While at Microsoft, I served on the U.S. Federal Communication Commission’s (FCC) Technical Advisory Committee, during a portion of Julius Genachowski’s service as FCC chair (2009-2013). At that time, Tom Wheeler led the advisory committee, and he later succeeded Julius as chair of the FCC (2013-2017).
 
Utter the phrase "network neutrality" and one is likely to engender two possible reactions. The first is a bewildered stare of incomprehension, something geeks experience frequently when using jargon-speak in inappropriate circumstances. (Exhibit A:  Holiday gatherings with extended family.) The debate has also become major news, with extended coverage in such outlets as the New York Times and the Wall Street Journal, and it has begun to penetrate the popular consciousness.
 
The other response, from policy wonks, technical experts, and Internet/telecom service and content providers, is likely to be impassioned advocacy, with much gesticulation.  They will either opine that (a) we must ensure unfettered and equal Internet access by and for all, or that (b) we must ensure continued Internet innovation and free enterprise investment.  
 
Well, duh, both are clearly true.  What then is the debate really about?  
 
As I wrote in an earlier piece, it is complicated and messy. (See Network Neutrality: It’s Complicated.) Although the early Internet grew from government research (see ARPANET and NSFNET, for example), today’s Internet was largely built by the private sector, which rightly expects to profit from its investment. Simultaneously, the Internet is a crucial element of our society, supporting business and commerce, government services, and public communication; these are societal needs of great importance. Simply put, both the public and the private good matter, and they are sometimes in conflict.
 
Technically, network neutrality is about Internet traffic management and its possible prioritization.  Can service providers give preference to some content based on defined criteria? Or is every packet is the same and all content must be treated equally? The technical answer is obvious. Anyone who has operated networks or conducted network research knows that signaling and quality of service (QoS) guarantees are essential elements of network management. The real issue is not technical network management, but about applying traffic shaping and other techniques to favor (or disfavor) certain entities based on business, market, or social advantage.
 
Thus, the network neutrality debate is largely a power and economic struggle between Internet service providers and those who deliver content and services. In an increasing number of cases, those two entities – service and content providers – are the same. Cellular operators and cable companies are two prime examples, providing broadband access while also offering content that competes with other content providers (e.g., Netflix).
 
The struggle is further convolved with a combination of social and political perspectives – pro-regulation or anti-regulation. Then there is the woefully obsolete nature of the governing law – the Communications Act of 1934.  Yes, you read that right – 1934!  There have been updates, most recently the Telecommunications Act of 1996, but twenty years is a geologic eon at Internet speed.
 
The legal and policy debate centers on whether the Internet should be considered a common carrier, like radio, television, and telephony, under Title II of the 1934 act, or as an information service under Title I of the 1934 act. The technical irony is that radio, television and telephony are now all streamed over the Internet. That convolution is what makes application of the 1934 law so challenging. The Internet is a carrier but it is also an information service. You can read the act here.
 
After much debate, via the Open Internet Order of 2015, the FCC, under Tom Wheeler’s leadership, chose to apply Title II, though forbearing several of the elements of Title II.  I believe that was the right decision, allowing "light touch" regulation for equal access, but others disagree. On December 14, 2017, the FCC, under new chair Ajit Pai, will likely reverse the 2015 ruling and shift questions about discriminatory rulings to the Federal Trade Commission (FTC).
 
Depending on one’s perspective, a potential reversal of the 2015 order is either wonderful, allowing free enterprise to flourish without unnecessary and burdening government regulation, or disastrous, endangering fair access and innovation, and allowing a small number of large companies to shape the future of the a critical resource with little oversight.  In practice, the full measure of either is unlikely to accrue, but there will be real effects.  That is why there is so much heat surrounding the debate.
 
Regardless of one’s business, legal, or social opinions, it is clear the network neutrality debate is yet another example of technical and business change rapidly outstripping outmoded laws, while powerful social and economic forces are at play. The nexus of digital privacy, transnational data flows, and the scope of extraterritorial legal reach is yet another. We badly need updated legal frameworks that reflect current realities and that are sufficiently flexible to accommodate rapidly evolving technologies. I wish I were more sanguine about that near-term probability. It is crucial that computer scientists become more involved as non-partisan experts.
 

 

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