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  • Robert Stines

The Internet - Neutrality or Management?

The open Internet drives the economy and serves as a critical tool for people to conduct commerce, communicate, educate, entertain, and engage in the world around them. But what does an open Internet mean and is the debate over network neutrality really a question about keeping the Internet "open"?

One of the features of the Internet is the "end-to-end" principle. It is the idea that the network infrastructure remains separate from the content it carries, and that all data are treated equally by the carriers that transmit them. The end-to-end design promotes a network that is "application-blind."

In the early days of the Internet, service providers could not distinguish between the applications and content flowing through the network. This meant that all content (cat videos, hate speech, pornography, educational programs) was allowed equal access to the Internet and the end user decided what they wanted to see. Hence, the "open" Internet.

On the open Internet, the end user does the filtering, not the Internet service provider.

Technology is now capable of monitoring and deciphering the content traveling across the network. With the ability to monitor, ISPs can now filter content. This gave rise to the network neutrality debate.

The assumption is that most people – regardless of their political affiliation – do not want their cable company controlling what they can see and do on the Internet, or charging a premium to access desired content.

Network Neutrality?

Network neutrality is the principle that all Internet traffic should be treated equally. Net neutrality, in theory, prohibits ISPs from intentionally blocking, throttling (slowing down) or charging money for online content.

Arguably, without net neutrality, ISPs could charge content providers, such as Netflix or YouTube, a fee for delivering their content faster to customers than competitors can. Net neutrality supporters argue that this especially hurts startups, which can't afford such fees.

In 2015, the Obama administration took certain steps to impose net neutrality, thinking it was the best method to keep the Internet open. The irony is that to keep the Internet open, the government had to regulate broadband companies that provide access to the Internet. Many detractors thought that regulating ISPs defeated the purpose of keeping the net open.

The World Has Changed Since 2015

It is common knowledge that the new president disagrees with many of the previous administration's decisions. This year, under the new administration, the FCC repealed the neutrality regulations.

Some of the cited reasons for the decision: To allow innovation and new broadband infrastructure or technologies. The "light touch" approach will allow broadband companies to experiment with different business models or to allow broadband providers to give priority to certain applications, like medical or self-driving cars. Of course, some say these reasons are weak and the main reason might be that broadband companies want to charge a premium for so called Internet "fast lanes."

Politics and money may have played a role in FCC's recent decision, but such a discussion is for a different type of blog.

I did want to highlight a couple issues.

Managing a Resource

There are people who might want an Internet fast lane. The Internet infrastructure is subject to congestion. A common analogy is congestion on a highway. The congestion impacts drivers differently. A driver heading to the emergency room will suffer more from congestion than the driver heading to a recreational activity. Under those circumstances, some drivers are willing to pay a premium for the express lane.

Similarly, certain users and applications feel the effects of congestion more severely than others. In my law practice, if I have to meet a filing deadline, and the Internet slows down because someone else is watching a YouTube video of cats, I might pay a premium for a fast lane at that point in time.

The question then becomes, are we really debating about whether to have equal access to an abundant resource, or managing access to a finite resource.

Also, who is empowered to manage the resource -- the public or private sector? Will market forces determine the outcome. Some people are willing to pay for the fast lane, but is there a better global economic outcome if everybody has equal access to the Internet.

Following the highway analogy - everybody has access to roads and highways, but there are express lanes. It's a thought provoking debate.

The Issue of Privacy

The Internet's original end-to-end design allowed for anonymity. By necessity, the Internet has changed. ISPs now collect metadata, such as your IP addresses and port numbers. This information can tell ISPs who you're communicating with and help them make an educated guess about whether you visited a web page or sent an email.

ISPs were never in the business of monitoring content. Order the new regime, ISPs might have more of a financial incentive to monitor content and then block or slow down certain types of content. For example, my child frequently logs into PBS KIDS that offers various forms of content (games, educational articles, videos). To determine whether my child gets on the fast lane, will ISPs have to determine whether the end-user (my child) or the content provider (PBS) paid the toll. In theory, the ISP now knows who accessed Internet, what website was visited, and want content was consumed. What does the ISP do with all that information? This type of monitoring may impinge on information privacy.

Business as Usual?

Whether it's a question of keeping the the Internet open or managing a valuable resource, it's not surprising that these issues are split down party lines. Will these decisions affect the Internet today or in the near future? Some (mainly the ISPs) say no. It will be business as usual - no blocking or throttling and no privacy issues. There are, however, already reports of throttling incidents. The most egregious thus far is Verizon throttling the Santa Clara County firefighters Internet service while they helped battle the massive Mendocino Complex fire in July.

Some states are challenging the FCC repeal and other groups have filed lawsuits. I'm sure the FCC, FTC and state attorney generals will want to ensure privacy and security is a top priority for ISPs. In other words, it is business as usual - politics, commerce, lobbying groups, lawsuits, and the Internet continues to grow.


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