A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) Focused Internet Neutrality Legislation Warranted To Protect Open Internet
(2) The Future for Internet Neutrality is Uncertain
(3) Legislative Recommendations and Outlook
After substantial consultations with stakeholders on all sides of the issue, CDT recently released a paper concluding that Congress should enact legislation to preserve the Internet as an open platform for speech and innovation, without gatekeepers or centralized control. At the same time, CDT believes that legislation should focus narrowly on safeguarding the essential characteristics of the Internet, and should leave broadband network providers free to experiment with non-neutral arrangements on the non-Internet portions of their networks. The issue generally has been labeled "network neutrality" in the current policy debate, but "Internet neutrality" would better reflect the appropriate scope for legislative action.
The Internet has always been neutral in a several crucial respects:
These essential attributes of the Internet are rooted in its history and have been central to its extraordinary benefits. In the landmark ACLU v. Reno litigation, the Internet's neutral and nondiscriminatory architecture was singled out as a constitutionally relevant basis to give the medium the highest form of free speech protection. The result has been a profusion of blogging and other forms of political, creative, and collaborative expression, all developing without anyone needing to make arrangements with network operators or anyone else before speaking. The neutral Internet likewise has led to the development of innovative technologies and applications, including the World Wide Web, Web-based e-mail services, voice-over-IP, and instant messaging -- all pioneered and deployed without active involvement of, or permission from, network operators.
As discussed in greater detail below, the future of Internet neutrality is uncertain. In the absence of legislated safeguards, there is a real risk that today's network operators could choose not to retain the core elements of Internet neutrality. This risk, and the potential consequences, are simply too great to take no action. Once new, non-neutral networks and business arrangements have been put in place, overturning them is likely to be extremely difficult. Legislation is warranted to ensure that neutrality will continue to be factored into network architecture and business plans from the start.
The neutral Internet did not arise through the commercial marketplace, and there is no reason to assume that marketplace forces alone can guarantee its preservation. The Internet was created under governmental and academic auspices. Moreover, it rode on top of the telephone network, which was subject to common carrier regulation. Thus, the owners of the physical telephone wires were legally prohibited from exercising any type of gatekeeper control.
Today, there are a number of reasons for concern. Several top broadband executives have made statements suggesting that they wish to obtain payments from services (e.g., Yahoo!) used by their subscribers, or to enter into special arrangements with certain Web sites or content providers to guarantee a higher delivery priority or quality of service. Having the network operator negotiate to select or prioritize certain content or applications would mark a significant departure from the no-gatekeeper Internet that has prevailed to date.
Roughly contemporaneously with these statements, decisions by the FCC and the Supreme Court eliminated any further application of common carrier rules to broadband networks. As a result, there are no longer any enforceable rules barring discrimination on broadband networks.
Changes in the marketplace as the Internet has shifted from narrowband to broadband are relevant as well. In the narrowband world, there were thousands of dial-up Internet service providers. Barriers to entry for new ISPs were low, and consumers could switch between them simply by typing in a new telephone number and other identifiers into the remote access dialer. As a result, if one ISP lacked openness or discriminated against content selected by a user, the user had plenty of options for moving to an ISP with different policies.
In the broadband world, consumers have more limited choices. Barriers to entry for new ISPs are greater, and changing providers generally requires a subscriber to obtain some new equipment. Large network operators are often part of large corporate families with broad holdings beyond just the network, which can create incentives to favor their own content or services. This would not have been possible from a legal or practical perspective in the narrowband marketplace -- but in today's broadband marketplace, the possibility is real.
It is certainly the case that the continued growth of broadband networks depends on operators' profitability and support from the capital markets. Deploying networks is expensive, and video and other new high-bandwidth applications may pose real congestion challenges. But none of this should require network operators to seek new revenues through fee-based discrimination on the Internet portions of their networks. There are other options -- for example, charging broadband subscribers for what they consume (so that true bandwidth hogs pay more), or developing innovative partnerships with content and service providers on the non-Internet portions of the networks.
Most congressional debate on the Internet neutrality question to date has occurred in connection with consideration of broader telecommunications reform legislation. CDT believes that legislative provisions to ensure the Internet's current level of openness are an essential element any telecommunications reform package.
An appropriate legislative framework should include some basic rules requiring nondiscrimination, but only on those portions of broadband networks dedicated to the Internet. The rules should not entail full common carrier obligations, and should clearly preclude price regulation. They should be set forth in legislation, not left to the discretion of an administrative agency. The role of an agency -- presumably either the FCC or the FTC -- should be to enforce the rules through a streamlined complaint process with definite timelines.
Legislation should not preclude legitimate network management activities that are consistent with the Internet's basic openness. Examples of activities that should not be prohibited include provision of caching services, blocking or filtering of illegal or fraudulent content, identification and removal of pirated materials, and prioritizing of packets based on the type of traffic (video, voice-over-IP, etc.) without collecting payment from the content providers.
With respect to the non-Internet portions of broadband networks, legislation should require careful monitoring and reporting rather than the imposition of binding rules. Monitoring should focus on whether actions taken by network operators on the non-Internet portions of the networks are having a negative impact on the growth and robustness of the Internet portion. Monitoring also could track the emergence of new competitors in the broadband market and any other factors that might suggest that neutrality rules could be safely sunset. Reporting should not, however, mean that network providers' ability to make business decisions about how best to allocate bandwidth should be subject to a government approval process.
The versions of neutrality legislation currently included in pending telecommunications reform bills do not provide clear protection for the essential attributes of the Internet. While they appear to prohibit network operators from blocking access to content or applications, it is at best unclear whether they would apply at all to discriminatory tactics short of total blocking. They also leave the FCC with substantial case-by-case discretion in interpreting the vague rules.
Prospects for actual enactment of these telecommunications reform bills this year are uncertain; with the fall election approaching, there is limited time left on the legislative calendar. But in any event, there is a strong need for serious dialogue among stakeholders in the Internet neutrality debate. The public rhetoric on this issue often has served to obscure the real policy questions rather than illuminate them. Substantive dialogue, free of such rhetoric, could help promote common understanding of what practices and characteristics are and are not essential to the Internet. It could play an important role in finalizing an appropriate and workable legislative framework. And it could provide a significant supplement to such a framework, since the kind of light-touch legislative approach envisioned by CDT would not seek to anticipate and preemptively address every conceivable type of behavior in which broadband providers might engage.
The end result, in CDT's view, should be a limited set of enforceable neutrality requirements that, backed up by a basic monitoring and reporting scheme, would protect the essential characteristics of the Internet without imposing significant burdens on network providers following the letter and spirit of the rules. Broadband providers would remain free to experiment with non-neutral services on the non-Internet portion of their networks, and no regulatory agency would be given broad ongoing authority to devise regulations for the Internet.