“Net Neutrality”: A crucial, high stakes battlefield
“Net neutrality” is a sound bite that conceals the diversity and complexity of the issues it encompasses. Compromises between multiple interests and diverse fundamental principles and values are inevitable in the real world of finite, even if growing network capacities, and limited, even if large investment capabilities. Promoting and protecting the distinctive interests of consumers and small businesses in the face of lobbying by well financed powerful media and ICT stakeholders poses a particular challenge.
Three arenas are central to the debates and controversies about “net neutrality”, namely: (1) Technical, network-related operational issues; (2) Competition Law; and (3) Human Rights, notably freedom of speech and of access to information.
The Meaning of “Net Neutrality”
Fundamentally “net neutrality” concerns the nature and scope of the content, applications, and services to which a network user should enjoy access, as well as the conditions under which this access is available. Restrictions on either the scope and/or the conditions of access may be imposed by network operators, services providers, owners of content or applications, terminal equipment suppliers, and/or regulators or other branches of Governments, or by various combinations of these stakeholders.
“Net neutrality” does not mean that anything and everything should be accessible over the internet with no restrictions. Activities considered illegal if other means of communication are used, such as for example the distribution of pornographic pictures of children by mail, are also subject to legal action if they make use of the internet. However “net neutrality” should reflect the principle that any restrictions on usage and users of the internet should be minimized.
Violations of “net neutrality”
Two basic types of “net bias” concern the advocates of “net neutrality”:
1. Inhibition or in extreme cases blockage of activities and usage of the internet to which users are entitled; and
2. Discriminatory practices by a network access operator or a services provider which inhibit, handicap, or block the transmission of traffic from some sources in ways that contravene Competition Law.
The operational scope of “net neutrality”
“Net neutrality” has been defined operationally in terms of the precepts of “openness”, which in the U.S. have been embodied in four aspects defined by Google. According to Google a user should be able to use or attach any device to a network, and not be limited to devices that are approved by the network operator. A user should also be able to utilize any software applications, services or content over a network that they desire. A network must be open to interconnection with other networks at any technically feasible point. Finally, networks should make capacity available on a wholesale basis on reasonable nondiscriminatory terms for use by third parties.
Google itself has been criticized on several counts. It has been alleged that Google engages in discriminatory practices in the agreements it reaches with some Web site operators, tries to make use of others’ content for its own purposes without fair compensation, and does not take adequate account in its proposals of the techno-economic realities of networks.
“Net Neutrality” and Finite Resources
Arguments in favor of limitations in the ways in which the internet is used are not all based on selfish self-interests. There are genuine operational challenges in managing efficiently the use of network facilities as a result of the inherently finite nature of the resources involved. A balance is required to avoid two undesirable extreme outcomes of “tragedy of the commons” and “tragedy of the anticommons.”
In a “tragedy of the commons” too many people seeking to use a finite, shared set of resources overload, and thereby make those resources unavailable to all of them. The opposite “tragedy of the anticommons” is characterized by a surfeit of rules, regulations and holders of rights to use the resources, so that it becomes very difficult technically, and/or unattractive economically, for anyone to exploit them.
It is both legitimate and indeed necessary for network operators to monitor and manage the traffic that is presented to and ideally delivered over their networks in order to navigate between these two “tragic” outcomes. So the question becomes how to define and enforce:
(a) Legitimate means and practices for operators to manage traffic over their networks, and
(b) Effective and non-discriminatory steps and actions operators can take to ensure the best possible service quality, reliability and availability for the greatest number of users.
“Net neutrality” is not a panacea for alleged customer-hostile and discriminatory anti-competitive practices of network operators, equipment suppliers, or content, applications, and services providers, nor is it necessarily an unreasonable goal whose pursuit will cause harm to these key players in the world of the “net”. The internet plays an increasingly important role as a platform for converged services including communications and access to content and information which broadcasters, newspapers, and other media have traditionally provided. The stakes are high, with implications that extend well beyond the rules of competition and customers’ rights within the arena and markets for network services.
Influencing future “net neutrality” decisions
Major stakeholders such as network operators, network equipment and device vendors, content owners, and major software and services companies will all be advocating strongly on their own behalf with respect to “net neutrality.” They have substantial financial and other resources and can hire the usual lawyers, economists, lobbyists and others to provide testimony and analyses that support their goals. The question is how to and who will represent the interests of individual consumers and small entrepreneurs in influencing the shape of future new or modified laws and regulations that deal with “net neutrality.”
It would be extremely naive to expect their distinctive interests to receive priority in the recommendations presented by large stakeholders. This concern is especially acute in African countries where the breadth and depth of the independent resources and expertise available to Governments, as guardians and promoters of the interests of citizens and other less powerful interests, may be inadequate on their own to act as an effective countervailing force against powerful industrial and commercial lobbies.
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