It all started with rumors that “Google and Verizon, two leading players in Internet service and content, are nearing an agreement that could allow Verizon to speed some online content to Internet users more quickly if the content’s creators are willing to pay for the privilege“. That news wasn’t completely true because the two didn’t close a deal, but they introduced a Legislative Framework Proposal for how the Internet should be regulated. Both companies posted a statement explaining their efforts on their public policy blogs: Google and Verizon. Much has been said about the policy from many different perspectives, this post focuses on net neutrality issues.
In their legislative framework proposal, Google and Verizon underline the requirement of non-discrimination for broadband Internet access providers:
In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.
In the same document, Google and Verizon argue for ‘differentiated services’, not being broadband Internet access services, that can make use of inter alia traffic prioritization. The proposal would enable Verizon and other ISP’s, to cut special deals with a content provider to prioritize that provider’s traffic. Discrimination in its purest form!
A provider that offers a broadband Internet access service complying with the above principles could offer any other additional or differentiated services. Such other services would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization.
The proposal might not seem to endanger net neutrality (or non-discrimination) because of the theoretical distinction between broadband Internet access services and differentiated services. However, in practice service providers can move away from the public Internet and offer their services on ‘differentiated’ paid networks. Broadband access providers might have less incentive to invest in public Internet capacity, pushing content providers to alternative networks. Or in the words of Andrew Jay Schwartzman, senior vice president and policy director at the Media Access Project, in the New York Times: “the plan creates an Internet for the haves and an Internet for the have-nots”.
Susan Crawford, Lawrence Lessig, Arbara van Schewick and Tim Wu call for FCC intervention. “Enshrining such a deal in legislation would dismantle the nondiscriminatory platform for innovation that our new all-purpose pipe has provided in the past.”
Tim Wu asks “what makes the Internet great are many sites that are non-commercial. Will they be able to compete?”
Jonathan Zittrain focuses on Internet startups of the future that might become unable to compete: “Google might well be able to pay — and then leave poorer content providers behind. The next two guys who want to start, say, ShmouTube won’t be able to do it if they’ve got to negotiate business development deals with one ISP after another in order to reach those ISPs’ subscribers. And that’s the real danger: when each ISP can, in effect, speak on behalf of its unwitting subscribers, serving as the troll under the bridge offering up different conditions for access to them, the economics of the Net will start to favor the consolidated, the well-connected, the well-heeled.”
Frank Pasquale writes: “Whatever the details of this proposal, I believe that carrier/search engine business alliances will proliferate in the future. The more ISPs like Verizon can characterize what they do as “search like,” involving technical genius and editorial discretion, the better a chance they have at evading utility-style regulation”. He also lists some other responses.
James Grimmelman calls the policy a “terrible blunder on Google’s part, considered purely from the perspective of its own self-interest. Google has enjoyed a generally good relationship with many activists and civil society groups who want to protect individual freedoms online. Even if what Google is now proposing is good policy, the backroom nature of the process sends an unmistakable message to Google’s erstwhile allies: we’re with you only as long as it’s convenient for us.”
AT&T spokesman Ralph de la Vega did not pay attention, or has a completely different conception of net neutrality when he said that “it’s a positive sign that shows that those two companies can agree on something as different as net neutrality”.
Facebook took the opportunity to make some good publicity: “Facebook continues to support principles of net neutrality for both landline and wireless networks,” said Andrew Noyes, a Facebook spokesman, in a statement. “Preserving an open Internet that is accessible to innovators — regardless of their size or wealth — will promote a vibrant and competitive marketplace where consumers have ultimate control over the content and services delivered through their Internet connections”