The Politics and Power of Internet Infrastructure Pt. 2

Please see the first part of this project here.

PART 2: NETWORK NEUTRALITY

In my last post I described the centralized control of the Internet’s backbone  by only 5 major companies around the world. This is an example of horizontal integration at the level of Internet service supplies. Thus far, this horizontal integration has posed few problems. However, when combined with vertical integration, this centralized control becomes far more problematic in the world of Internet politics.

Roughly speaking, horizontal integration of the Internet backbone represents a higher level of control over the Internet, but vertical integration represents more direct control over the “consumer” end of the Internet. Vertical integration in Internet companies is seen as particularly dangerous because it threatens the basic end-to-end architecture of Internet networks I described earlier. When ISP’s gain greater control not just of the infrastructural backbone, but also control the network “downstream” closer to Internet consumers, ISPs must walk a fine line between simply creating and maintaining infrastructure and manipulating this infrastructure in ways that fundamentally change the nature of Internet access. Vertical integration of high-level ISPs is dangerous because it makes it very easy and very tempting for companies to modify the network in ways beneficial to them as a company.

This issue of manipulating the conduits of the Internet in ways that change the nature of Internet access is at the heart of the idea of “net neutrality”. The phrase, introduced into Internet discourse by Tim Wu, a professor at Columbia Law School, generally refers to the idea that all data traveling on the Internet ought to be treated equally. The notion of net neutrality forms a kind of baseline for our understanding about the appropriate regulation of the Internet- it describes a kind of basic social contract about the Internet. Yet this term has many many possible practical manifestations and meanings. In it’s 2005 “Broadband Policy Statement”, the FCC stated that:

“To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to:

access the lawful Internet content of their choice…

run applications and use services of their choice, subject to the needs of law enforcement…

connect their choice of legal devices that do not harm the network…

competition among network providers, application and service providers, and content providers.”

This broad statement about “net neutrality” and the rights of Internet users sets a kind of baseline expectation for Internet infrastructure and services within the United States. Yet not all countries share this basic understanding, and even in the U.S. the FCC is encountering trouble finding legal grounds to effectively enforce these measures. It is fairly well known that in countries like China, where there is a radically different understanding of permissible free speech and much tighter control of media outlets, the range of access to “lawful Internet content” of the consumer’s choice is much smaller. In order to maintain this control over the Net, the Chinese government does not simply create laws about content and hope that citizens follow them, but maintains a large complex of surveillance, monitoring, and censoring via technological means and via the control of private corporations (I will discuss the implications of this more in the 3rd section.)

This practice of regulating behavior by modifying the conduits of the Internet seems to violate the traditional definition of network neutrality, and likely even the FCC’s definition thereof. However, this is a fairly common model of intervention in many places around the world.

That said, many would also consider the United States to be in violation of “net neutrality”, even by its own definition set out by the FCC. The U.S. government is very weak in terms of its regulation of the Internet, and in particular the Telecommunications Act of 1996 made deregulation of media ownership the norm. This means that there is very little done in the way of ensuring the FCC’s fourth provision entitling consumers to “competition among network providers, application and service providers, and content providers.”

In a recent case, the FCC determined that Comcast, a network provider that also provides video content, should not be allowed to slow down internet service or otherwise interfere with customers using peer-to-peer software (software often but not exclusively used for illegal file sharing.)  This seems to be a clear case of an owner of Internet conduits modifying those conduits out of self-interest- a violation of net neutrality. However, this decision was overturned by a Federal court which decided that the FCC did not have the jurisdiction to enforce this law. In this case we see that the work of “Internet governance”, or deciding the basic functionality of the Internet and the rights of Internet users, is being largely carried out by private businesses. In contrast, in China the government is the primary determinant of network policy, and exerts direct control over the network. We can see from these two examples that definitions of  “net neutrality” and the social contracts between citizens and their government about how media ought to be regulated (or not) vary widely from region to region.

It is interesting is that, although there seems to be little widespread concern about violations of net neutrality by private companies, citizens do seem to be against more traditional control over behavior via law enforcement. The widespread SOPA/PIPA protests in January 2012 can be read as evidence that citizens do not find it an acceptable action of the government to intervene in the functioning of the Internet. The bills ostensibly were meant as measures to protect intellectual property; interestingly, many ISPs have actively taken measures to regulate piracy by various intrusive measures including “throttling”, or slowing down data flows to recalcitrant downloaders. Yet this privately-enacted regulation seems to receive very little criticism. There are many other possible variables to consider here, but it seems that in the world of Internet politics, private businesses may be seen as more appropriate regulators than the government. This is extremely important, because it represents a precedent of direct technological control and regulation, rather than behavior-based or legal regulation. I will consider the implications of this precedent more in a later section.

This above case suggests the question: how is ‘net neutrality’ brought about? Through government regulation, or through free markets? Do we need governments to prevent radical horizontal and vertical integration that allows companies to modify Internet access to suit their personal interests? Or do we need to prevent the government from surveying and filtering online content, potentially overstepping the bounds of mere law enforcement and becoming censors?

Based on the extremely limited evidence described above, it seems that U.S. citizens see free markets as the key to net neutrality, and government regulation as potentially destructive towards free, neutral access.

To consider this question further, lets examine a few cases of government regulation versus free market scenarios.

In the U.S., we largely have a “free market” scenario. As mentioned, the Telecommunications Act of 1996 deregulated the market in the hopes of encouraging competition and lowering the barrier to entry for new businesses. We also have very few laws regulating content, and virtually none enforcing content regulation through technical means (ie, requiring private businesses to actively regulate this content in accordance with U.S. law). In fact, the U.S. has many laws which protect private businesses from being held liable for hosting illegal content posted by third parties.

In contrast, in much of the E.U. governments enforce or encourage competition between ISPs through a variety of legal measures. This means that in the E.U., prices for Internet service are much, much cheaper, and broadband is a lot faster than in the U.S. This competition eliminates the problem seen in the U.S. where private companies can slow down service to competing content providers, or throttle Internet speeds for peer-to-peer users. That said, in the E.U. it is also (slightly) more common to enforce technical filtering of Internet content. Many countries maintain blacklists of domain names that ISPs are required to block; typically these are exclusively directed at child pornography sites, but recently the U.K. ordered ISPs to block The Pirate Bay, a site primarily used for illegal downloading. In “Beyond Denial”, authors Ronald Deibert and Rafal Rohozinski suggest that even this minimal (and highly supportable) government regulation on a technical level sets a dangerous precedent:

“The convenient rubric of terrorism, child pornography, and cyber security has contributed to a growing expectation that states should enforce order in cyberspace, including policing unwanted content. Paradoxically, advanced democratic states within the Organization for Security and Cooperation in Europe (OSCE)—including members of the European Union (EU)—are (perhaps unintentionally) leading the way toward the establishment of a global norm around filtering of political content with the introduction of proposals to censor hate speech and militant Islamic content on the Internet. This follows already existing measures in the UK, Canada, and elsewhere aimed at eliminating access to child pornography.”

This kind of filtering at the level of ISPs can be seen potentially both as a violation of net neutrality, in that data being sent across the network is being searched and discriminately filtered based on content, and a violation of free speech. Although overall child pornography should not be protected by the ideals of net neutrality or free speech, simply utilizing this technology opens a door to more serious content filtering and violations of net neutrality.

In these two cases, we see two inverse sets of power relations in regards to Internet infrastructure, with different resulting conditions of “net neutrality”. In the U.S., the balance of power lies heavily with ISPs and telecommunications companies. This limits the risk of violations of net neutrality in terms of government enforced surveillance and content-filtering, but increases the risk of content throttling and the kind of monopolistic control that allows ISPs to modify the Internet conduits for personal gain, without allowing consumers a choice of alternative, unmodified Internet access.  In the U.K. and around the E.U., the balance of power lies more heavily with the government. This increases competition and makes the Internet access individuals receive less constrained by commercial interests (ie, imagine a world where one did not need to choose between Comcast’s pricey “triple play” bundling, or where having Verizon’s extremely fast FiOS connection didn’t mean exorbitant prices, loss of telephone service during power outages, and the inability to switch back to a copper-based service- as they remove the old lines to prevent this.), but also means that the government is more ready to enforce content filtering of a kind that potentially violates rights to net neutrality as well as freedom of speech.

This relative balance of power between state governments and private companies greatly influences (or possibly reflects?) local understandings and practices of “net neutrality”. As I will explore in the next section, deeper questions about “digital rights”- and in particular questions about whether Internet access is a basic right- are greatly influenced by the relative power of NGOs to both businesses which own Internet infrastructure and the governments which regulate them.