US Net Neutrality Debate Has Global Governance Implications

By Liza Porteus Viana for Intellectual Property Watch
NEW YORK – The Internet neutrality debate is raging in the United States, and some observers say that if a legislative standard can be set here, it could serve as a global principle for Internet governance in the future.

Internet neutrality (“Net neutrality”) refers to a principle that is applied to broadband (high-speed) networks free of restrictions, such as what content those networks carry and what devices are used (e.g., game controllers or wireless routers).

Proponents – which include companies like Amazon.com, eBay, Google, Microsoft, Facebook, Skype, Yahoo and Internet pioneer Vint Cerf – say Internet providers which operate the pipes on which the content travels – should not be able to give preferential treatment to content distributed via their networks. They argue that the government – specifically the Federal Communications Commission – needs to step in to ensure equal access to content at equal prices, regardless of who the user is or what the content is, particularly in an era of increased media consolidation.

Artists, charity groups, civil liberties groups and coalitions such as SaveTheInternet.com argue that an unrestricted Internet has allowed it to flourish and has provided opportunities to thrive in ways that would otherwise not be possible. They also say it is vital to preserving freedom of speech.

“The CEOs of all the largest telecom companies have made clear their intent to build a tiered Internet with faster service for the select few companies willing or able to pay the exorbitant tolls. Network Neutrality advocates are not imagining a doomsday scenario,” said SaveTheInternet.com.

But telecommunications companies like Comcast, AT&T, Verizon and Time Warner, as well as other industry groups on the other side of the debate, say regulation aimed at preserving Net neutrality will stifle Internet innovation, particularly when there is not overwhelming evidence of a problem to begin with. Companies say they are not discriminating when they delay traffic between file-sharing sites, for example, but they maintain they are just trying to prevent the networks from being overloaded for other users when applications such as Web video are on the rise. Most companies have excessive and/or acceptable use policies.

“Reasonable network management is, always has been, and likely will continue to be, essential to providing the high-speed Internet access – or any other network-based service for that matter – that consumers demand,” Comcast wrote in an FCC filing [pdf] last month.

Comcast reignited the Net neutrality debate in the United States when news surfaced that the cable giant interfered with peer-to-peer applications like BitTorrent. File-sharing and downloading of largely copyrighted material is a major cause of network bottlenecks.

“We have chosen the least intrusive method to help the vast majority of our customers avoid service degradation,” David Cohen, a Comcast executive vice president, said last month during an FCC hearing on the issue. “Our customers want us to fight spam and viruses, and they want us to fight congestion.”

But Internet providers not only want to charge heavy bandwidth users for their heavy utilisation of available broadband, they also want to charge content providers like YouTube for the demand they put on their customers’ network. FCC Chairman Kevin Martin has said service providers should be allowed to take reasonable steps to make efficient use of their networks, but that management policies must be disclosed.

House Representatives Edward Markey (Massachusetts Democrat) and Chip Pickering (Mississippi Republican) last month introduced The Internet Freedom Preservation Act which would, among other things, establish overarching national broadband policy to preserve and promote the “open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network.” It would also task the FCC to ensure service providers are adhering to the agency’s broadband policies.

“It’s very clearly not regulation,” Markey spokeswoman Jessica Schafer told Intellectual Property Watch. “What it’s doing is it’s enshrining the Net neutrality principles in communication law.”

Consumer group Public Knowledge, which supports Markey’s bill, said the legislation essentially marries up the Internet connectivity issues the FCC is concerned about with the classic principles of the Communications Act. “Other bills have been critical of being overly regulatory, overly detailed,” said Public Knowledge spokesman Art Brodsky. “If nothing else, it’s going to stimulate debate and keep the issue alive.”

Opponents say there is no need for more regulation and Congress should let the marketplace work.

“This legislation is antithetical to the congressional innovation agenda goals of extending broadband’s reach, and speeding delivery of advanced applications that will improve the environment, personal security, education, and health care � particularly in rural areas,” said Walter McCormick, president of the US Telecom industry association. “It would blindly legislate a new national broadband policy, without regard to its implications, and then require the FCC to spend the next year determining whether the Internet is being constructed, managed, and operated in conformance with this new government mandate.”

The Fiber-to-the-Home Council North America agrees with the US Federal Trade Commission and Justice Department, which have essentially said more restrictions or regulations could be detrimental to the Internet’s health. The group is a non-profit organisation that includes municipalities, utilities, developers, and traditional and non-traditional service providers, including various fibre, broadband and telecommunications companies, involved in building industry consensus on key home connectivity issues.

“The basic sense of our membership is that nobody has the power to start blocking peoples’ Web sites and things like that because subscribers will just go to new suppliers of the network. There aren’t market monopoly forces out there,” council President Joe Savage told Intellectual Property Watch.

Plus, there are many ways tech-savvy people could get around any one firm’s attempts to block access to content. “We think that until there’s widespread, or at least more than one or two well-documented issues that have come up � it’s pretty evident that current regulations are working.”

At a Tuesday hearing before the House Judiciary Committee Antitrust Task Force, some lawmakers agreed they were loathe to issue more regulation, but acknowledged that something needs to be done – perhaps an antitrust approach – to ensure access to content for all who want it.

Committee chairman Rep. John Conyers, a Michigan Democrat, said if “pay to play” was a national policy – meaning those who use higher amounts of bandwidth would pay more for it – “many of the innovations we’ve enjoyed with the Internet would never have occurred under this proposed regime.”

Conyers added: “I’m concerned that if Congress stands by and does nothing we will soon find ourselves living in a world where those who can pay can play but those who don’t are simply out of luck, � where politicians will be able to stifle the voices of citizen activists through deals with Internet service providers � [and] where an increasingly consolidated entertainment industry will be able to prevent independent artists and filmmakers from being heard.”

But Rep. Steve Chabot (Ohio Republican) argued that, “legislation is not always the right answer, competition is.” He said the “heavy hand” of government will prevent networks from becoming more efficient, effective, could slow bandwidth and, ultimately, harm consumers.

International Interest

Some foreign policy analysts have been keeping a watchful eye on the Net neutrality debate in the United States and some governments have had their share of neutrality issues to deal with.

For example, in Canada late last month, the Standing Committee on Canadian Heritage released a report [pdf] on its national public broadcaster, CBC/Radio Canada, which includes several pages on Net neutrality. “Network non-neutrality could have significant consequences for CBC/Radio-Canada since it is not in a position to respond to market changes through convergence on a sufficiently large scale,” the report reads. “It depends on the owners of digital infrastructure for the delivery of its content over broadband and wireless networks in its bid to remain relevant � if the Internet evolves into a multi-tiered networks, where content providers pay for different levels of service, the possible degradation of its content and services, or the requirement to pay addition fees for their online delivery, would put the corporation at a significant competitive disadvantage.”

A video-sharing site last year accused a French ISP of choking access to its site, while a feud in the United Kingdom involved the BBC and ISPs. But the issue does not yet have the fury surrounding that it has in the US.

European consumers have many more ISPs to choose from than American consumers do, so the threat of monopoly over broadband pipes does not seem as dire. The US lags behind foreign counterparts in broadband penetration rates, behind heavily regulated countries in the European Union, as well as South Korea, Canada, the United Kingdom, and Japan. Cable and telephone companies make up most of the access providers.

Another difference between the United States and Europe is that among European countries, the big Net neutrality obstacles are governments, not private ISPs, when they filter and block certain sites.

It is for those reasons that, “at a global level, the idea of universal access and blocking content is much more relevant” than bandwidth tiering, said Milton Mueller of the Internet Governance Project, who wrote a November 2007 paper entitled “Net Neutrality as Global Principle for Internet Governance.” [pdf] That paper argues that the Net neutrality debate “transcends domestic politics” in terms of consumers’ access to content and ISPs’ abilities to transmit that content without liability – two issues increasingly important as countries like China strengthen their grip on the Web.

“Because Internet connectivity does not conform to national borders, net neutrality is really a globally applicable principle that can guide Internet governance,” the paper said.

The publication notes that the Tunis Agenda, which emerged from the 2005 World Summit on the Information Society, commits the world’s governments to develop globally applicable public policy principles for Internet governance.

Mueller suggested that a separate agreement can be negotiated globally to deal with Internet content. He said there are many advocacy groups and social movements afoot in favour of freedom of expression that would support a globally applicable Net neutrality principle as part of that agreement.

“There’s just so many reasons, political reasons, why people want to control content. Everybody gives lip service to the principles of freedom of expression but when it comes down to brass tacks, they say ‘what about this?'” Mueller said, referring to content controllers trying to find a way out of unrestricted access. “I think it’s possible for there to be greater unity.”

This week the UN International Telecommunication Union, which organised the WSIS and oversees the current Internet governance debate, held a global regulators’ symposium in Thailand on affordable broadband access.

Liza Porteus Viana may be reached at info@ip-watch.ch.