Like Derrick (see prior post) I am in Rio at the UN’s Internet Governance Forum. Yesterday, IGP’s new paper on Net Neutrality as a global principle for Internet governance generated heated discussion when it was presented at the annual symposium of the Global Internet Governance Academic Network (GigaNet). One might think, with some justification, that the world doesn’t need another paper about net neutrality. But it is the global focus of this one that makes a difference. The GigaNet conference proved that the world is ready to discuss and explore this principle, and to analyze its implications for global Internet policy. Here is a list of some of the tough questions faced:
1. TV and newspapers have been allowed vertical integration between content and network, why should the Internet be different?
2. What specific rules should be used to implement NN princples?
3. What about democratic countries with laws against hate speech or racist content? Shouldn’t they be allowed to continue blocking and filtering in those cases?
4. Where would the political impetus for institutionalizing a global principle come from? Are there enough key players with enough incentives to imagine a winning coalition?
5. Would it be institutionalized through a treaty? A soft law framework? What?
6. This is pointless, you will never get authoritarian governments like China to accept such a principle if it means that they have to stop blocking and filtering
7. You are trying to export the U.S. First Amendment.
Here is a sketch of how these questions were fielded.
1. It is a question of market power in the transmission segment. There is nothing inherently wrong with specialized networks (e.g., satellite radio providers) that combine transmission and content packages. In a digitally converged environment, however, broadband Internet access becomes the basis for accessing literally millions of different services and types of content, and the number of providers is typically two or three. If a highly concentrated newspaper distribution service started exercising control over what newspapers could print we’d want to take some kind of action.
2. Our paper recognizes at the outset that NN is still a principle in search of a policy and not a well-defined set of rules or regulations that can be easily translated across jurisdictions. We’re still debating the meaning of the NN norm. Still, we would favor implementations that are more like the ex post antidiscrimination sanctions of competition policy than technical regulations that attempt to dictate, ex ante, how carriers move packets.
3. The object of a NN policy to avoid building content regulations into the network itself. Such filters are inevitably crude and overinclusive, and try to mechanize sensitive judgments about content. They also undermine the global connectivity of the Internet. Thus while it should still be possible for states to make publishing, using or hosting certain kinds of content illegal, state content regulation should focus on the end points – the producers and users of content within their own jurisdictions.
4. It is first necessary for principled civil society advocates to articulate the principles and norms of net neutrality and promote them in global governance circles. But as our paper notes, both small-scale and a few large-scale suppliers of Internet-based content and services have a strong economic interest in preserving universal and nondiscriminatory Internet access on a global basis. It is also possible that some governments, in their capacity as trade negotiators or as telecom regulators, might want to ally around a NN principle.
5. It is too early to discuss specific institutional vehicles for implementing a NN principle. As a research and advocacy group, IGP wants to build support for the principle and remain flexible about tactical issues.
6. We know perfectly well that authoritarian states, especially powerful ones like China, are strongly committed to censoring the Internet and wish to impose national boundaries around it. Civil society advocacy in nonbinding global fora is unlikely to sway them. However, the unwillingness of specific governments to go along immediately with a good policy does not mean that people should stop advocating that policy. We are committed to building support for policies that support Internet freedom. Over the long term this can have an impact on any country.
7. The U.S. First Amendment is not mentioned in the IGP paper. A global principle for network neutrality is based on free expression concepts, but not on the very specific legal regime of the U.S. First Amendment.