Net neutrality is a concept that has outlived its usefulness. Here is why. (Photo: Shutterstock)

Net Neutrality: What the Public Gets Wrong

OPINION: Repealing “net neutrality” in the US will have no bearing on Internet freedom or security there or anywhere else.

Andrej Savin, Associate Professor. Law Department. Copenhagen Business School, Denmark.

Published 12 December 2017 - 06:25

On December 14, 2017, the Federal Communications Commission (FCC) in the United States will hold what is widely perceived to be a very significant vote on the repeal of the so-called “net neutrality.”

The Proposal was published in April 2017 and generated significant interest and emotion among all categories of stakeholders, with the majority of consumer associations and a good deal of public opinion being against and the telecoms providers in favour.

Voices on both sides of the Atlantic have claimed that this repeal means the death of the Internet as we know it, that internet service providers will now have the ability to introduce fast and slow lanes, and that they will be able to charge more for allowing users to access popular services such as streaming platforms.

Such consequences do indeed sound very dramatic, but the vast majority of arguments that the authors rely on are plain wrong. They demonstrate confusion about the terminology and misunderstand both the technical con-cepts and basic Internet architecture.

The Internet is a complex web of commercial traffic exchange mechanisms and has never been truly “neutral.” (Photo: Shutterstock)

At the same time, the fact that the repeal is suggested and promoted by a politically compromised presidency makes what is already a political issue about Internet architecture a veritable minefield.

Since the Internet is global, it is worth asking: What is the background of the American story and could it have an impact elsewhere, say in Europe?

What is “net neutrality”?

A good place to start is to first define what we mean by “net neutrality.” The term was coined by the American scholar Tim Wu in a 2003 paper exploring whether a neutral Internet, which the author defined as the Internet which does not prefer one application (such as email) over another, is best preserved through regulation. And, if so, what kind?

The term as we understand it today is best defined as the idea that the Internet is neutral towards the traffic that flows through it. In other words, a neutral Internet does not discriminate traffic by origin or content. This, to-gether with its decentralised structure, is often taken to be the very defining feature of the Internet and the reason for its success.

In this sense, net neutrality is not only a description of its present state but also the idea that legislators ought to step in to protect such a state and introduce measures which would prohibit Internet Service Providers (ISPs) from degrading this neutrality or otherwise compromising it.

This idea usually generates a policy debate concentrating on whether to have such legislation at all and, if so, how far it should go.

To better understand whether the “repeal” of today’s net neutrality is a threat, we need to consider three things.

1) US repeal returns the Internet to its 2015 status

The Internet that we know and love today was born, developed, and matured, without any specific legislation protecting its neutrality.

As elaborated at length by Lawrence Lessig and other scholars, Internet architecture itself produces regulatory effects. While legislation may occasionally be used to maintain this, the free Internet is not a result of a particular regulatory intervention but precisely the opposite—it was possible because no regulation existed in the first place (unlike with other media, including radio, television or newspapers).

The first attempt to regulate net neutrality came about in 2010 when FCC issued its Open Internet Order—a set of guidelines that required broadband providers to be transparent about their practices and prohibited block-ing and unreasonable discrimination of content (i.e. favouring own services against competitors’).

The measures quickly became the target of litigation by ISPs claiming that excess regulation constrained their business. Most (with the exception of the one on transparency) were struck down in a case that was decided in January 2014. While the legal arguments were complex, the main point was that FCC could not regulate net neu-trality because it ‘lacked competence’ to do so.

Undeterred, FCC reclassified the Internet in 2015 from an ‘information society service’ to a public utility under the 1996 Telecommunications Act and reintroduced some of the regulation from 2010. This allowed it to acquire the competence, which it previously lacked, and to lawfully monitor for prioritization of own content and throt-tling down of competitors.

In the context of the proposed repeal of net neutrality, the present FCC proposal is essentially an attempt to re-voke that classification and return the Internet to its pre-2015 status as an information society service.

The take home message is that the level of net neutrality regulation will revert back to what it was during the Clinton, Bush, and Obama administrations.

It is also essential to emphasise that the present proposal is not to repeal a law (since that law never existed) but to scale back the extent of one regulatory agency’s (FCC) competence to intervene. Competition, contract, and consumer laws, will continue to apply to net neutrality just as they have in the past.

2) Net neutrality does not affect the “backbone” of the Internet

The structure of the modern Internet is very complex and divided according to how providers obtain traffic. In a very simplified form it can be divided into:

The Internet backbone. This can best be described as large global networks that connect the entire In-ternet. When streaming services enter into arrangements to enable faster or more efficient content dis-tribution this is almost always on the backbone and not on the last mile.
The last mile: This refers to the connection that delivers the Internet to the retail user. This is the con-nection we purchase from our local ISP and it is what most users see as “the Internet.” Net neutrality as a concept—and this is a key idea—by definition operates only on the last mile.

The backbone arrangements have always existed and always involve a payment transfer from one network to the other. But such a transaction can never be a violation of net neutrality since it never takes place on the last mile.

For example, when a streaming service pays a provider to ensure that its services are not slowed down, it is a content-delivery service paying a backbone provider, not a last mile provider.

A vast majority of the real and imagined problems associated in the public mind with net neutrality either origi-nate on the backbone or are confined to the backbone and thus cannot be solved by any neutrality legislation.

3) European Internet is only mildly “neutral”

Prior to 2015, the EU had no direct regulation of net neutrality: No regulation (other than competition law) exist-ed on the backbone and only very limited rules controlled the last mile.

Limited protections were introduced in 2009 and allowed individual national regulatory agencies to impose min-imum requirements for the quality of service if and when they were deemed necessary and to take measures to prevent service degradation and slowing down of Internet traffic where needed. It also required ISPs to be trans-parent about their traffic management practices.

A proposal for more comprehensive and stronger net neutrality regulation was adopted only recently in 2015 and came into force in April 2016. This introduced further net neutrality protection: It required ISPs to treat all traffic equally, meaning that blocking or throttling of traffic for purely commercial reasons is prohibited. But, crucially, reasonable traffic management is allowed and so are special services (e.g. fast lanes for business purposes), the latter only as an addition to the regular Internet, not in competition with it.

The current legislation also allows zero rating—the practice whereby services preferred by the provider (e.g. provider’s own instant messaging or VoIP solutions) are not included in the data quota that consumers pay for.

Problems can be solved without net neutrality protections

In summary, EU law contains basic protections of net neutrality and the impending US repeal will have no effect on the existence or operation of these rules.

And despite what many may claim, there is very little evidence that ISPs are interested in, or already engaging in violations of net neutrality. In fact, such behaviour would make little commercial sense. While there is anecdotal evidence that ISPs occasionally slow certain traffic for reasons other than essential traffic management (for ex-ample, to harm a competing product), all instances of such behaviour have already been efficiently dealt with in the complete absence of net neutrality laws (usually through competition law).

To put it another way, there are currently no problems that net neutrality regulation is capable of solving.

Equally importantly, net neutrality is an incredibly complex idea in terms of technology and policy that is con-stantly presented in black and white terms and hijacked by various political platforms.

Attempting to simplify it leads nowhere, as the highly technical concepts behind it do not lend themselves to simplifications.

The concept of net neutrality is no longer useful

Finally, and possibly most importantly, net neutrality does not say anything about whether the Internet is open, generally accessible, censored, or otherwise free.

Having net neutrality laws—any form of net neutrality laws—in no way guarantees Internet freedom. Such free-dom can just as easily be violated by measures completely outside of the scope of such rules.

The impending December repeal, in spite of it being proposed by an otherwise problematic administration, will likely have no effect whatsoever on the Internet as we know it.

Furthermore, if the backbone is taken into consideration, the Internet has never truly been neutral but always a result of complex web of commercial traffic exchange mechanisms that have only become more complex.

In that light, net neutrality is a concept that has outlived its usefulness.

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Read this article in Danish at ForskerZonen, part of Videnskab.dk