Net Neutrality?

What do Reykjavik and Washington have in common, that potentially affects us all? Answer: “net neutrality”, the principle that all governments and Internet service providers treat data equally, neither speeding or slowing its transmission nor blocking access without legitimate justification. And while, at first sight, net neutrality may seem straightforward, the closer one looks the more complex and contradictory the options appear. Next month, Washington’s Federal Communications Commission (FCC) will vote on new regulations for the Internet that could have a significant effect on the shape of the digital landscape over the coming years. Across the Atlantic Iceland is making a pitch as an icy anchorage for digital cargoes. Dealing with the difficult choices that regulatory bodies such as the FCC face may make places like Iceland singularly important. At the core of this is the paradox that, in order to ensure an open Internet, some data may need to be blocked.

There are five issues here. First is whether the FCC votes to stay with current light touch regulations, known as “Title I”, or whether the commission concedes to pressure to adopt tighter, “Title II”, rules. This choice is tied up with a second issue, the increasing consolidation of broadband providers that is creating near-monopolies in some parts of the world. Third is the way in which net neutrality is interpreted in practice and, in particular, what a principle known as “no blocking” means. Together, these issues have significant implications for universities – for both research and teaching. And fifth, and looking to the future, is the question of how a balance between net neutrality and data protection may be achieved, which is to return to the example of Reykjavik.

Up until now, the Internet has been lightly regulated, following Title I provisions set out in the US’s Communication Act. Anticipating that this could change Verizon, one of the largest broadband providers, challenged the extent of the FCC’s regulatory powers in a complex legal case that was decided in Verizon’s favour early last year. This ruling has raised extensive concerns, with over four million representations to the Commission, including a strong policy steer from the White House.

In essence, big broadband providers such as Verizon want to stay with light touch Title I provisions because these allow for additional revenues, particularly from speeding up or slowing down access to individual web sites according to differential payment tariffs. Their case is supported by the Republican Party, now dominant in Congress and Senate, in the interests of commercial competitiveness. The counter-case, which has grown to an avalanche of anxiety over the past year, is that the FCC should impose some of the Title II provisions of the Communications Act that have long been used for telephone services. This would prevent practices such as charging for differential Internet access, preserving a healthy ecosystem for innovation and the myriad small office start-ups that have given us a host of public benefit services and useful apps.

One petitioner to the FCC is the White House, with a rousing statement from President Obama:

An open Internet is essential to the American economy, and increasingly to our very way of life. By lowering the cost of launching a new idea, igniting new political movements, and bringing communities closer together, it has been one of the most significant democratizing influences the world has ever known.

‘Net neutrality’ has been built into the fabric of the Internet since its creation — but it is also a principle that we cannot take for granted. We cannot allow Internet service providers (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas. That is why today, I am asking the Federal Communications Commission (FCC) to answer the call of almost 4 million public comments, and implement the strongest possible rules to protect net neutrality.

The White House position goes on to list four “bright-line rules” to ensure the continuation of net neutrality: no blocking of legal content; no “throttling” (or access speed controls); net neutrality across all points of interconnection between ISPs and the rest of the Internet; and no paid prioritization.

This issue is inseparable from the increasing consolidation of large broadband providers and the near monopolies that this is creating. Comcast, the US’s largest cable company, is currently seeking approval to take over Time Warner, the second largest; if this merger is approved, the new conglomerate will be the only established cable company available to almost two-thirds of the US population. Similar moves are happening elsewhere and are a consequence of network effects; the exponential-like advantage that comes every time a new subscriber, with their web of contacts, is enrolled.

Given historic suspicions of monopolies in general, as well as more specific criticisms of companies such as Microsoft and Amazon, there is a prevalent, visceral, suspicion of the motives of big beasts such as Verizon, Comcast, AT@T and Time Warner. But its not that clear that virtual monopolies are the same as the late nineteenth century industrial giants for which most current legislation was designed. A recent, and thoughtful, essay in the Economist sets out some of the counter-arguments. These include the point that public interest use of the Internet depends on the seamless and global reach of fibre optics provided by big trans-nationals, the role of social media monopolies such as Twitter in enabling freedom of speech in the face of repressive political regimes, and the cross-subsidization effects that can follow from differential pricing by global platforms.

The question of how net neutrality is interpreted in practice is also more complex than it might at first seem. In particular, the ‘no blocking” principle goes to the core of the issues in question. Here is the first of President Obama’s bright-line rules: “No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player — not just those commercially affiliated with an ISP — gets a fair shot at your business”.

But by specifying that the “no blocking” principle is about commerce and enterprise, the White House is ducking the far more complicated issue of digital sovereignty. In essence, digital sovereignty is the right of a state to use its authority and legislation to control, resist or deny digital traffic across what it understands as its borders. Self-evidently, digital sovereignty is another, and significant, form of blocking.

Exercising claims to digital sovereignty is most commonly represented as actions by repressive political regimes that are intended to limit basic rights of access to information and of freedom of speech, notably by countries such as Egypt, Turkey, China and, more recently, Russia. But digital sovereignty also embraces situations where states may want to act to protect rights of privacy and the misuse of data in the interests of freedom of expression. For example, Brazil proposed exercising digital sovereignty to protect its citizens in response to the scandal of US intelligence gathering revealed by Edward Snowden. And any organization or individual that subscribes to one of the many available Virtual Private Networks exercises a similar act of sovereignty in order to block access to information about their identity and location.

The White House’s bright-line rule for “no blocking” is, then, pretty selective. This partiality is consistent with the USA judiciary’s current interpretation of the reach of America’s jurisdiction over digital data.

As net-critic Evgeny Morozov has recently pointed out, the USA Government is currently defending a landmark court case. Last year, the courts upheld a demand from the police that Microsoft hand over e-mails that are stored on a server in Dublin as part of a drugs case. As Morozov puts it, imagine the inverse, with the Chinese government demanding data from a server in Washington as evidence for a court sitting in Beijing. In upholding the Dublin demand, the courts are asserting that the USA has national sovereignty over any digital data that originates in the US, wherever that data is now located.

The court ruling is vigorously contested by Microsoft. Here is an extract from the current court documents: “the power to embark on unilateral law enforcement incursions into a foreign sovereign country – directly or indirectly – has profound foreign policy consequences. Worse still, it threatens the privacy of US citizens”. The appeal case is backed by a wide range of organizations, including the Guardian, Apple and – Verizon.

Consequently, although (as President Obama puts it), the Internet may be “one of the greatest gifts our economy — and our society — has ever known”, it does not necessarily follow that this gift can only be preserved by an absolute principle of “no blocking”. While preventing blocking may be in the clear interests of start-ups, innovation and enterprise, it is clearly more complicated when intelligence and law enforcement agencies use the principle to batter down virtual doors anywhere in the world.

What implications do these net neutrality issues have for information technologies and their use in universities? First, we have a profound interest in openness, both for teaching and research. For teaching, places such as MIT and the Open University pioneered the concept of making curricula and their associated resources freely available on the Web. Open access to publicly funded research results is a widely supported principle, irrespective of the complications in achieving it. Open data, and ability to trawl massive, globally distributed data sets without coming up against pay-walls is already fundamental to key areas of research. Given this, it must be in all universities’ interests to support the Title II case when the FCC votes on Internet regulation next month.

But second, there will be a matching concern with an interpretation of net neutrality that allows either a domestic or a foreign agency unrestricted access to data, wherever this data is, and without clear, precise and open international protocols of legality.

The Dublin case that Microsoft and others are contesting is a narcotics investigation that would probably be upheld if such international protocols existed. But remember the far more complicated case of Boston College’s Belfast Project. Here, dozens of frank interviews had been taped with former IRA and loyalist paramilitaries under the university’s assurances of strict confidentiality; the kind of assurances that researchers routinely give in the pursuit of knowledge, and which are part of the essential scaffolding of academic freedom. Some of these tapes were obtained by the Northern Ireland Police Service through the US courts, using similar principles to those applied by the US courts to the e-mails on the Dublin server. Boston College’s Belfast archive is analogue, but today it would of course be digital. If net neutrality is to be interpreted as an unrestricted right to obtain information under any circumstances, key research across a wide range of fields could be compromised.

Finally, then, how can a balance be achieved between net neutrality, data protection and the rights of privacy? Back to Iceland.

Current and future use of the Internet depends as much on the Cloud as it does on the massive infrastructure of cables owned and operated by big companies such as Comcast and Verizon. And the Cloud is, in turn, a family of massive data centres, often in remote locations, voracious in their consumption of energy and furnace-like in their generation of heat. If net neutrality is to be reconciled with ethical data preservation and security, then appropriate combinations of a cold climate, unlimited cheap energy and fierce political defence of data protection and freedom of expression should win out. Iceland meets these criteria.

Iceland’s unique combination of long, cold winters and abundant geothermal power is attracting international investment in data centres. Currently, in a development that may signal a trend, the former US Navy base at Keflavik is being converted to this purpose with equity funding from Britain’s Wellcome Trust. This economic shift, following from the spectacular collapse of Iceland’s earlier role as a banking centre, has broad political support. And because Iceland is not a member of the European Union, it is not party to the EU Data Retention Directive, which requires member states to retain records of all citizens’ telecommunications for up to two years and to permit access by police and security services.

If we are to reconcile the founding Internet principles of openness and data neutrality with the predatory and quasi-legal actions that have come to characterise governments’ digital behaviour we may well need both the principles of net neutrality encompassed in the US’s Title II provisions, as well as the political protection and environmental conditions of places like Iceland.

Sources

Economist, November 29 2014. “Internet Monopolies”

Fung, Brian December 30 2014. “The next big turning point in the net neutrality debate”. Washington Post

Fung, Brian 2 January 2014 “Get ready: The FCC says it will vote on net neutrality in February”. Washington Post

Gaedtke, Felix December 28 2014. “Can Iceland become the ‘Switzerland of data’?” Aljazeera.com.

Goel, Vindu and Andrew E Kramer, 1 January 2015. Web Freedom Is Seen as a Growing Global Issue. New York Times.

Guardian, 14 December 2014: “Privacy is not dead: Microsoft lawyer prepares to take on US government”.

Karr, Timothy 31 December 2014. “Four Pivotal Internet Issues as the Year Turns 2015”. Huffington Post

Nagesh, Gautham , Wall Street Journal, 4 January 2015. Republicans Lay Plans to Fight FCC’s Net-Neutrality Rules

White House “Net Neutrality: President Obama’s Plan for a Free and Open Internet”. http://www.whitehouse.gov/net-neutrality

 

 

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