[A2k] Kabay, The Net Neutrality Debate

[Soenke Zehle]

different take, Soenke

The Net Neutrality Debate
<http://www.acm.org/ubiquity/views/v7i20_neutrality.html>

by M. E. Kabay, PhD, CISSP-ISSMP

Cause for Alarm?

In November 2005, Rep. Joe Barton (R-TX) introduced draft legislation in
the US Congress that has generated animated debate about the concept of
net neutrality: the even-handed treatment of all content providers (Web
sites, streaming audio and video providers and so on) by all Internet
service provNiders (ISPs).

Now in its fourth draft, the "Communications Opportunity, Promotion, and
Enhancement Act of 2006" is moving through the Commerce Committee's
Subcommittee on Telecommunications and the Internet with co-sponsorship
of Rep. Fred Upton (R-MI), Chairman of the Telecommunications and the
Internet Subcommittee; Rep. Chip Pickering (R-MS), Commerce Committee
Vice-Chair; Rep Bobby Rush (D-IL); and with support from Rep. Dennis
Hastert (R-IL), Speaker of the House. The Benton Foundation, a private
think tank specializing in digital telecommunications policy, has an
overview of the bill http://tinyurl.com/ha4hz and a more extensive
analysis http://tinyurl.com/hwxmr available online.

The bill includes provisions for improvements in the regulatory approval
process for establishing new pay-for-service cable television networks;
ensure that subscribers to voice-over-IP (VoIP) users would be able to
communicate their location automatically to emergency 9-1-1 services;
prohibit discrimination against classes of subscribers (e.g., refusing
to offer cable service to districts with lower average income in a
coverage area); and enshrine the rights of municipalities to create
publicly-owned broadband ISPs.

Proponents of the bill argue that it would contribute to a lively
competitive marketplace with new offerings for consumers.

Opponents have focused on the absence of any specific prohibitions on
differential service levels relating to content. Net neutrality is the
term generally applied to the concept that ISPs should in no way
privilege specific types of content (or, for that matter, disadvantage
other types of content). A common hypothetical example used in debates
is to imagine that a specific search engine might pay ISPs fees to
ensure that responses from its Web site would be delivered to the user
faster than the results from a competing search engine that had not paid
special fees. Another example of content-based discrimination imagines
that an ISP might accord a lower priority to packets transmitting, say,
video feeds - unless the customer were to pay a special fee for
higher-speed access. The most alarming scenarios involve outright
blockage of content by source or by type. An example of blockage by
source often cited in news stories is that of the Canadian ISP Telus,
which blocked subscribers' access to a Web site of the
Telecommunications Workers Union, with which it was in conflict
http://tinyurl.com/kkzau. The example of type-based blocks much
mentioned in the debate is that of Madison River telecommunications
provider, which blocked VoIP traffic from Vonage as an anticompetitive
move to protect its own long-distance conventional long-distance service
http://tinyurl.com/hscav .

An organization called "Save the Internet.com"
http://www.savetheinternet.com/ has announced a campaign to stop what it
calls a plan by Congress to "ruin the Internet." In heated prose, the
organizers describe Rep. Barton as having "sponsored a bill to hand over
the Internet to big telephone and cable companies." Rep. Rush, claim the
writers, "supports Barton's bill that would stifle independent voices
and small businesses." In a note headed, "The Threat is Real," the
organizers write, "If the public doesn't speak up now, Congress will
cave to a multi-million dollar lobbying campaign by companies like AT&T
and Verizon who want to decide what you do, where you go, and what you
watch online." Indeed, they proclaim, "Congress thinks they can sell out
and the public will never know. The SavetheInternet.Com Coalition is
proving them wrong - together, we can save the Internet."

You can easily find a wealth of articles looking at this issue by typing
"net neutrality" into your favorite search engine. One of the most
reasoned commentaries is by Daniel Berninger: "Net neutrality means
don't tread on the Internet!" His essay was published on April 18, 2006
on the Jeff Pulver blog http://pulverblog.pulver.com/.

I do not think we are approaching The End of the Internet As We Know It
and you really can Feel Fine (with apologies to R.E.M.)
http://tinyurl.com/z9vpf

Not TEOTIAWKI

Back in the late 1990s, a common acronym in discussions about the Y2K
(year 2000) problem was TEOTWAKI: The End of the World As We Know It.

I don't think that the Net Neutrality debate is about TEOTIAWKI - The
End of the Internet as We Know It.

There are several issues mixed up in the excited rhetoric about Internet
service providers (ISPs) who might want to charge for providing faster
access to certain content providers and to certain types of Internet
traffic. I'd like to analyze the issues so that we can think about the
problems with more reason and less emotion than some of the writing I've
seen on the 'Net recently.

The issues seem to be that

     * Some people think of the Internet as a public service or a
commons, much like air. In their mental model, no one owns the Internet
and access to "it" should be free and uncontrolled. Any interference
with equal access to any aspect of the Internet is morally reprehensible
and must be opposed in all possible ways.

     * Another block of people perceive the Internet as an entity much
like the phone system. That is, their mental model is of a unified
construct under relatively centralized control, or at least, under the
control of monopolistic forces. According to this model, we need strong
regulation analogous to that which regulated the development of the
telephone system, complete with strong central-government agencies that
impose restrictions on anti-competitive behavior that could stifle the
development of small competitors to The Big Guys.

     * Without explicit new regulations, ISPs will naturally apply
restrictions on the content made available to users because wealthy
content-providers will pay fees to enhance access speeds to their
material and possibly even to block access to competitors' materials.
Under these rules, non-profit, counter-culture, and individual
content-providers won't stand a chance of having their materials read
because users will naturally flock to the quicker sources and abandon
the slower ones.

My mental model of the Internet is a bit different. I think of the
Internet as the totality of computer systems that communicate using
TCP/IP. Similarly, the World-Wide Web is the totality of computer
systems that communicate through the Internet and make content available
through HTTP and various derivatives of HTML.

Nothing in this model suggests that there is anything to own about the
Internet, or indeed that "the" Internet exists apart from
interconnections, any more than there is an "Englishspace" consisting of
all people who communicate using English. All components of the Internet
are owned by individuals, collectives, corporations, or governments;
there is nothing free about them. Yes, some owners of Internet
components provide free access to the Internet, but that free access
implies nothing about ownership.

Such a model of the Internet has implications for the problems
articulated above. For example, the whole notion that anyone has a
fundamental, inherent, inalienable right to Internet access evaporates -
except insofar as a government declares that such access must be
available to all, much as public roads are available to all because
people decided that they would be so.

Similarly, if ISPs are engaged in civil contracts to provide defined
services to users, then the terms of the contracts freely entered into
are entirely up to the parties involved. An ISP that declared that it
would bar access to all Web sites in which the word "xylophone" appeared
might lose users with an interest in music and those opposed in
principle to violations of net neutrality, but it would in no sense be
breaking a law or violating a moral principle. It would be a stupid
idea, but that's another question. By analogy, an ISP in the USA that
decided to bar access to Web sites based on political or religious
grounds might appeal to some people and not to others - but again, such
filtering would violate no fundamental principles of justice. Anyone not
liking the policies would presumably choose a different ISP.

If ISPs do eventually violate net neutrality to make money from
contracts with content producers or to privilege certain types of
traffic (video is most often mentioned), I cannot believe that users
will simply shrug and give up access to sites they wanted to visit
simply because an alternative is faster. If I want to read a story from
SCIENCE magazine, I am not going to visit SCIENTIFIC AMERICAN just
because the pages load more quickly. What makes the TEOTIAWKI folks
believe that users so fickle in their choices of content that speed
alone will be the determinant of their browsing habits?

ISP Liability and Net Neutrality

One of the issues that doesn't seem to get mentioned much in discussions
of what has been called "net neutrality" as it affects Internet service
providers (ISPs) is the notion that ISPs currently serve as common
carriers and are therefore immune to certain types of liability - but
only if they keep a hands-off attitude toward the content that they convey.

VANs

Some of the readers of this column may not know that before the Internet
became a commonplace mechanism for exchanging information, there were
services called value-added networks (VANs) that provided some of the
same functions as ISPs do today. CompuServe, Prodigy, the early versions
of America Online (AOL) and several others offered pay-for-service
access to moderated discussion groups (threaded discussion lists), news
services (e.g., the original online version of the vast ComputerSelect
database that supplied electronic copies of thousands of technical
articles a year from respected journals and technical magazines) and
commercial sites.

Even as late as 1994, these VANs offered a higher signal-to-noise ratio
than some parts of the USENET and of the fledgling World Wide Web. I
just located an article I wrote back then that included the following
text: "Far from being an Infobahn, with that word's overtones of
Teutonic neatness and order, the Internet [in 1994] resembles a loose
network of paths, some of them rutted with overuse, others infested with
vermin. Internet destinations range from the cyberspace equivalent of
well-groomed parks and impeccable libraries to unkempt garbage dumps and
run-down road-houses."

Cubby v. CompuServe

In 1991, a landmark case called Cubby, Inc. v. CompuServe, Inc.
http://tinyurl.com/ruwho established a fundamental attribute of ISPs.
CompuServe had provided facilities for a Journalism Forum that included
a section called Rumorville USA which was created by Don Fitzpatrick
Associates (DFA). A competing service called Skuttlebut was developed by
Robert Blanchard and Cubby, Inc. that was directly accessible through
subscription without going through CompuServe. When defamatory materials
were published about Skuttlebut on the Rumorville service, Cubby Inc.
and Blanchard sued Fitzpatrick and CompuServe for libel. Judge Peter
Leisure of the US District Court of New York ruled that because
CompuServe had no involvement in the content of its forums, it could not
be held responsible for libelous material posted there. The judge wrote
that "=85CompuServe is, at most, that of an independent contractor of an
independent contractor. The parties cannot be seen as standing in any
sort of agency relationship with one another, and CompuServe may not be
held liable for any of plaintiffs' claims on a theory of vicarious
liability." Many legal commentators have interpreted this judgement as
classifying CompuServe (and by implication other VANs) as equivalent to
a distributor (which is not involved in selecting content of what they
provide) rather than as a publisher (which does make judgements about
content).

Lumney v. Prodigy

In 1994, someone sent vile, threatening messages via e-mail in Alexander
G. Lunney's name by opening fraudulent accounts on the Prodigy ISP using
his identity. Lunney sued Prodigy for allowing him to be placed in a
false light (one of the classic legal definitions of defamation) but
lost the case and his appeal because, the appeals-court judge wrote in
1999, "Prodigy's role in transmitting e-mail is akin to that of a
telephone company, where one neither wants nor expects to superintend
the content of its subscribers' conversation. In this respect, an ISP,
like a telephone company, is merely a conduit."http://tinyurl.com/n65yv

Stratton Oakmont v. Prodigy

In the Stratton Oakmont Inc. v. Prodigy Services Co. case completed in
the Supreme Court of New York in 1995, an anonymous user of the "Money
Talk" bulletin board on Prodigy made libelous statements about the
principals of the Stratton Oakmont securities investment banking firm in
October 1994 http://tinyurl.com/rkyf3. Judge Stuart L. Ain ruled that
Prodigy's stated policy of reviewing and censoring postings qualified it
as a publisher with respect to its bulletin boards (note the contrast
with the judgement about its e-mails from Lunney v. Prodigy).

Market Mechanisms will Bolster Net Neutrality

I bring these cases to readers' attention because
although-I-am-not-a-lawyer-and-this-is-not-legal-advice-(for-legal-advice,-=
consult-an-attorney-qualified-in-this-area-of-legal-practice),

I think these classic cases bear directly on the issue of net neutrality
of ISPs. To the extent that ISPs begin to interfere with unbiased,
unrestricted access to content from different providers, I think they
will fall afoul of the existing case law that specifically protects ISPs
that net neutrality and will find themselves qualifying for
responsibility for content as publishers.

I doubt that such increased liability for content decisions will provide
a good business case for changing accessibility of content to users.
ISPs who take money from content providers to increase accessibility to
their content or to block access to competitors may forfeit their
defensive claims to being content-neutral distributors immune to
liability for libel and other legal infringements (I have not discussed
other issues such as intellectual property violations). Civil law may
provide an excellent tool for preventing abusive interference with
access to information on the Internet.

I look forward to a flood of commentary from cyberspace attorneys
interested in this issue and will summarize their comments in a later
article.

I'm already cringing.

M. E. Kabay, PhD, CISSP-ISSMP is Associate Professor in the Division of
Business and Management at Norwich University in Northfield, VT. Mich
can be reached by e-mail at mailto:mkabay@norwich.edu ; Web site at
http://www2.norwich.edu/mkabay/index.htm .

Source: Ubiquity Volume 7, Issue 20 (May 23, 2006 - May 29, 2006)
www.acm.org/ubiquity