Owners of network infrastructure should not be allowed to dictate how networks are used. It would be a mistake to follow the example of mobile telephony, where companies function as gatekeepers for their subscribers’ applications and services. The responsibility for formulating policy on the use of networks, including the Internet, rests with elected representatives and government officials, not with private industry.
Net neutrality is but the latest issue in the struggle for control of the Internet. The principal contestants are private and public interest groups. Thus far, the former are in the ascendancy. Private interests won a great victory with the World Intellectual Property Organization treaties of 1996, subsequently enacted into law in the signatory nations, as in the Digital Millennium Copyright Act of 1998 in the U.S. It extended copyright protection to digital works in ways that constrict the universe of freely available information on the Internet. Thus, lawmakers have favored private profits over public access in the treatment of information and knowledge.
The latest contest over Net neutrality is not quite as well defined as protection of intellectual property, but once again public and private interests are pitted against one another. While telecom companies make a legitimate point in their argument about prioritizing network traffic to provide for different tiers of service, we question the advisability of allowing network owners to dictate how the networks are used.
A major bone of contention between public and private interests concerns the role of network providers who own or control the pipes that carry the information end-to-end on the Internet. The CEO of AT&T, Edward Whitacre, stimulated considerable media discussion when he said in a BusinessWeek interview in 2005 that "they [Google, Vonage, and other content providers] don’t have any fiber out there. Why should they be allowed to use my pipes? The Internet can’t be free in that sense, because we and the cable companies have made an investment, and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes (for) free is nuts" [7]. Network providers typically propose variations of this argument by asserting that they need to prioritize the Internet traffic that flows through their pipes. Prioritization is needed to guarantee service levels to companies and services (such as VoIP and IPTV from network providers) that demand high-level reliability and generate additional revenue streams to justify current and planned infrastructure investment.
Discrimination against companies should be banned, and differential service rates achieved through traffic prioritization should be implemented in a way that is consistent with the treatment of other public infrastructure.
These arguments have elicited fierce objections from the private sector, especially content providers, as well as from a range of grassroots consumer and public-interest groups [5]. The counterargument they put forth is that innovation stimulated by the Internet over the past decade is due mainly to the Net’s open, end-to-end nature, where network providers function merely as conduits of information. Furthermore, the current move by network providers to prioritize different types of information constitutes not just discrimination but degradation of service for business customers and eventually for end users. Vinton Cerf, chairman of the board of the Internet Corporation for Assigned Names and Numbers and vice president and chief Internet evangelist at Google, said in 2006 that "Allowing broadband carriers to control what people see and do online would fundamentally undermine the principles that have made the Internet such a success… [A] number of justifications have been created to support carrier control over consumer choices online; none stand up to scrutiny" [3]. Tim Berners-Lee added that "The neutral communications medium is essential to our society. It is the basis of a fair competitive market economy. It is the basis of democracy, by which a community should decide what to do. It is the basis of science, by which humankind should decide what is true. Let us protect the neutrality of the Net" [2].
One needs to balance the network providers’ need for flexibility in pricing and service levels with the nature of the Internet infrastructure as a public good. Network providers may very well continue to exploit their dominant position to block or discriminate against direct competition in emerging services (such as VoIP and IPTV) where regulation lags technology. They could also enter into explicit agreements favoring certain types of content providers over others; for example, search engine companies (such as Google and Yahoo) could be favored over a struggling newcomer (such as alltheweb.com) that may be unable to pay as much for an exclusive deal.
There is some justification for the claim by network providers that pricing and service models could evolve further in order to increase reliability for certain types of service that demand minimal or zero network delay. Examples of such services are VoIP, certain telemetry applications like medical monitoring, and those offering strong protection against malicious code and spam. Internet traffic is typically handled by treating all packets the same, delaying and/or dropping packets only randomly or on the basis of FIFO. Network providers argue that they would have more incentive to invest in better networks—despite the fact they are often subsidized—if they had the opportunity to streamline pricing and service delivery.
This position would make sense if the infrastructure companies refrained from offering services (such as VoIP and IPTV) to consumers over the Internet. If they are in the business of providing the infrastructure with different tiers of service, along with some of the services themselves, the potential for abuse would be considerable. The network providers should therefore invest enough in infrastructure, guarantee a certain minimum level of service to all parties (minimal discrimination where packets are discriminated against only in the face of traffic congestion), and agree not to offer services other than VoIP and IPTV.
Rather than allow network providers to implement service-level differentiation, a federal government agency (such as the Federal Trade Commission or the Federal Communications Commission) could assign priorities to services (such as medical applications, VoIP, IPTV, and security). This approach would ensure uniform application of the same rules for all players [1]. It is especially important that priorities be assigned based on type of service rather than on service provider. No stakeholder or class of stakeholders in the Internet marketplace should be given special treatment. Favored actors might be able to control content or apply monopolistic pricing schemes to the disadvantage of the public.
Public policy on mobile phone and cable infrastructure contrasts sharply with policy on transportation systems [6]. In particular, public highways might be restricted to specific types of traffic. Some parkways are for passenger cars only; some roads have lanes reserved for high-occupancy vehicles. But these designations are determined by public policy, not by the contractors that build the roads. Moreover, permission to use a particular lane is not granted according to which manufacturer’s car one drives nor to a driver’s particular errand.
The Senate’s recently passed Internet Freedom Preservation Act of 2007 addresses some of the concerns we’ve raised here by making it illegal for telecom companies to discriminate against different uses of broadband service to access or offer lawful content, applications, or service [4]. It also includes a provision that would make it illegal for telecom companies to impose tolls based on content, application, or service from other entities. While the bill’s intent is admirable, it is not precise enough in its current form and could act as a disincentive to further innovation. Congress should use this opportunity to stimulate a more nuanced debate about prioritizing content that would treat the Internet infrastructure as a public good. For example, discrimination against companies should be banned, and differential service rates achieved through traffic prioritization should be implemented in a way that is consistent with the treatment of other public infrastructure. It is especially important for the federal government to avoid creating vague rules on discrimination that are difficult to track and enforce.
Government regulation of infrastructure usually makes a sharp distinction between control and maintenance and utilization. The U.S. Postal Service and companies like Federal Express and United Parcel Service are allowed to offer express delivery service as long as their operations do not systematically impede traffic flow on the highways. Regulation aims to ensure a minimally acceptable level of quality. If some form of discrimination (such as lane restrictions) is necessary to achieve this objective, the decision to do so should not be made on the basis of the company one keeps or the errand one is performing. The principles applied to highways and "public utilities" should also govern the relationship between network infrastructure and the services offered by means of that infrastructure.
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