7th Internet, Law and Politics Congress (VII). Javier de la Cueva: Conclusions for day 1

Notes from the 7th Internet, Law and Politics Congress: Net Neutrality and other challenges for the future of the Internet, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 11-12 July 2011. More notes on this event: idp2011.

Conclusions for day 1
Javier de la Cueva, Lawyer.

First of all, it is worth noting the role of Philosophy when talking about Net Neutrality. We are indeed building a new world, and this new world is not about machines, but about people. And the question is not about Net Neutrality, but about what will be the new 4th generation fundamental rights that we want for our future.

Another important issue is the definition of jurisdiction. And this jurisdiction is not only geographical, but can also be understood all along the value chain Internet provided content and services. We can speak about the different layers that make the Internet up, of about the different ends of the service, etc. But the truth is that there are many actors on the Internet and many of them belong to different legal, technical or factual jurisdictions.

A missing point during the Congress is the asymmetry of download and upload speeds. This asymmetry makes it more difficult peer-to-peer sharing, and makes it more difficult to become a real prosumer.

Again, the important thing is what do we want. In matters of Net Neutrality, do we want Net Neutrality as a right, as a principle or as a goal.

In some way, the absence of net neutrality is like adding a layer of obscurity and unfairness amongst two layers of freedom: the layer of free software, the free code that runs the Internet; and the layer of free content, the one that is freely created by the contributing users.

Of course, we have to be aware that with great power comes great responsibility: we have to acknowledge that a lot of work has still to be done in issues like privacy, reputation and honour, security, etc. Part of the solution comes, evidently, with lawyers and policy-makers learning much more on how the Internet and technology in general work.

More information

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7th Internet, Law and Politics Congress (IV). Net Neutrality: communications

Notes from the 7th Internet, Law and Politics Congress: Net Neutrality and other challenges for the future of the Internet, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 11-12 July 2011. More notes on this event: idp2011.

Track on Net Neutrality
Chairs: Rodolfo Tesone Mendizabal, President of the SDTIC (Information and Communication Technology Law Section at the Barcelona Bar Association)

Helena Nadal Sánchez
Without Net Neutrality, where then the universal logic of innovation?

Postmodernism is based on neo-liberal ideologies that do not acknowledge the lockean concept of (necessary, public) control, or the habermassian concept of the agora, the place to meet and share insights and knowledge.

A sustainable development of the Internet should be agreed. Knowledge societies cannot be built if knowledge does not flow freely. The basis of innovation is not only talent, but the exchange of knowledge.

David Arjones Giráldez
Net Neutrality from the perspective of its layer-based architecture: from public carriers to content managers?

The layer-approach to define the Internet is based on splitting it in different layers, at least three: physical layer, logic layer, content and services layer. There are three principles:

  • Each layer must be fully regulated in its own.
  • An agent in a layer must not operate in any other layer.

  • Regulation must be layer-aimed. A specific rule can apply to many of them, but they should not be designed with this goal in mind.

Within this framework, the problem of Net Neutrality can be approached different than usual.

For instance, if operators are tampering on content or services, they are going against the rule where agents cannot operate in but one layer.

Thus, the saturation of the network can be solved with a layer-based new pricing model, but without altering the rest of the layers.

Cristina Cullell March
Net Neutrality and freedoms in the telecommunications reform in the European Union: are they present in whole Europe?

The La Rue report (PDF, 140Kb) for the United Nations (May, 2011) states that access to the Internet should be as a fundamental right. How is Europe treating this right?

Key aspects of Net Neutrality that the EU has already include in their directives:

  • Freedom of choice.
  • Transparency.
  • Quality of service.

European institutions before Net Neutrality:

  • The European Commission thinks an open Internet is a major concern. Indeed, it guarantees the “freedoms on the Internet” of the European citizens, and informs the Council and the Parliament.
  • European Parliament links Net Neutrality with Digital Rights.
  • ORECE: member states are responsible for guaranteeing the neutrality in their territories. Guarantees the normative coherence and harmonization in the European Union. It publicizes good practices.

Does the EU require a complementary regulation on Net Neutrality? Surely we have to work harder on defining transparency and in setting a minimum threshold for quality of service.

José Manuel Pérez Marzabal
Open Internet, Net Neutrality and defence of the competence

There is some overlapping, a symmetry between antitrust regulation and the telcos regulation. And even if maybe the debate around Net Neutrality is not be a debate on the telecommunications’ market competition, more market competition undoubtedly favours major degrees of neutrality.

Clara Marsan Raventós
The Net as a public space: Is Net-neutrality necessary to preserve on-line freedom of expression?

It’s increasingly difficult to think about things one cannot do on the Internet. As a space, people are used to meet in that “space” regardless on who is actually providing the technological platform, only aiming at not being banned or filtered on that public space.

So, as a public space, the Internet becomes more important and the management of the information that populates is becomes a crucial aspect for the society.

Of course there are limits operating on the Internet, as public morality… as anything that already operates in the physical world. The problem being that while the Internet is truly global, such a thing as public morality is exclusively local, cultural, social.

The, which are the actors that can control the Internet and who can say whether public morality should or should not be an issue in the Internet?

There already is a vast array of tools that can be used for censoring content on the Net. And worst of all, those are tools that are decentralized and can be applied at different levels of the chain of content transmission. As tools are widespread, so are the different actors that can apply them in their processes.

Negotiation must then be a multistakeholder one.

7th Internet, Law and Politics Conference (2011)

7th Internet, Law and Politics Congress (III). The Net Neutrality debate: Stakeholders’ perspective

Notes from the 7th Internet, Law and Politics Congress: Net Neutrality and other challenges for the future of the Internet, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 11-12 July 2011. More notes on this event: idp2011.

Panel: The Net Neutrality debate: Stakeholders’ perspective
Chairs: Miquel Peguera. Senior Lecturer, School of Law and Political Science (UOC)

Maite Arcos. General Director of RedTel (Spanish Association of Telecommunications Operators)

The Internet is a complex ecosystem: there are content providers (e.g. digital newspapers), service providers (e.g. Google), facilitating services (e.g. PayPal), connectivity providers (telecoms), user interfaces (e.g. Windows) and the users. Most of these actors are interconnected, but content and service providers are (usually) not connected with telecoms, which has caused several problems between them, amongst which who pays for the intensity of usage of the networks and whether content and services should be served on a neutral basis.

And there is an increasing pressure on telecoms as traffic increases at highest rates year after year… while Internet access charges have been diminishing in real trends. Content and service providers have no incentives on providing “light” services (there is no “price” on the bytes they transfer). It ends up with operators not being able to catch up with investment needs to maintain a quality service.

Possibilities:

  1. Stop investments, while degrading the service.
  2. Increase Internet access fees.
  3. Product and service differentiation.
  4. New negotiation with service and application providers to look for new and more balanced agreements.

Telcos do not thing #1 and #2 are an actual possibility, so we should be exploring #3 and #4.

Andreu Teixidor. Director de estrategia editorial de BUBOK

The printing press did not change the way to publish writings, but changed the world, as the Internet is doing to ours. The Internet is changing how works are published, but also how will democracy be transformed, the way we feel, etc. So, neutrality is not about an industry, it is about how we share our future.

Ofelia Tejerina. Lawyer. Asociación de Internautas

A first problem, dire problem, when it comes to network regulation is that policy makers usually do not understand the new nature of a digital society.

There are prior stages to net regulation that have not been satisfied as transparency or accountability of telcom practices.

And this transparency and accountability has to be guaranteed by the Judiciary branch, not the Government and of course not the private sector. And it is the Legislative branch that has to find out how to update the laws that we are using and that are completely obsolete.

One of the most important reflections has to be around pricing:

  • What are we really paying? Infrastructures? Content? Services? At what cost?
  • Who should be paying? Should any prosumer pay when they upload (and not only download) content?

Discussion

Ismael Peña-López: why don’t we nationalize the infrastructures? Wouldn’t that be solving many problems at once? Arcos: the problem would then be who pays for the infrastructure, would it be taxes? fees paid by the operators?

Antoni Elias: another problem would be how innovation on infrastructures would be triggered by public initiative. Most innovation comes from competing infrastructures, which would cease to be if they were to be merged under a single public infrastructure. [own short comment on the latter is reminding what happened with innovation in railroads in the UK once privatized or in electricity suppliers in the US]

Chris Marsden: it is not true that most infrastructures are paid by private money, as many last milers already know, having to pay Internet access from their own money or being supplied by the government as part of their universal access policy. On the other hand, the investment is nothing compared with the insvestments in railroads in the XIXth and XXth centuries, while benefits would most probably be way higher. Concerning competition amongst networks, what is more common is that telcos do share networks and just rarely compete on that issue.

Javier de la Cueva: why is it that the OCED states that we have the most expensive broadband services? Arcos: Spain is one of the few countries where there is a real choice where to get your broadband service. Besides, quality standards in Spain are very high, but this is not taken into account in the measurements performed by the OECD.

7th Internet, Law and Politics Conference (2011)

7th Internet, Law and Politics Congress (II). The Net Neutrality debate: The Policy Options

Notes from the 7th Internet, Law and Politics Congress: Net Neutrality and other challenges for the future of the Internet, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 11-12 July 2011. More notes on this event: idp2011.

Panel: The Net Neutrality debate: The Policy Options
Chairs: Miquel Peguera, Senior Lecturer, School of Law and Political Science (UOC).

Antoni Elias, Professor at ETS d’Enginyeria de Telecomunicació de Barcelona, Universitat Politècnica de Catalunya (Telecommunication Engineering School at UPC)
The debate on net neutrality: regulation-based policy options

Four stages that stress the Internet:

  • Technical complexity
  • Legal complexity
  • Economic complexity
  • A social engine

For all these reasons there are arguments enough to have a supranational structure to regulate the Internet. There is no solution on the issue of net neutrality without this supranational regulatory institution, as the Internet knows no borders. Especially when most communications run over what we generally call the Internet: and IP-based protocol with a name system regulated by the IANA/ICANN.

Telecomms used to charge by access to the service (line rent) and for each use of the service (e.g. minutes called). With DSL, the paying system changes and operators tend to be paid through flat rates. This change implies that the growth of usage is not (directly) associated with a parallel increase in income. Does this scale or is this sustainable?

If we compare the Internet with the printing press, what we might be facing now is how the Internet opens up a new enlightenment as the press did in the XVIII century. But, for this new enlightenment to happen, like the printing press, the Internet must be free from control.

Innovation and investment in networks are as important as the new applications, services, contents or devices. And, of course, traffic must be managed and users and services must be managed too. But managing is not discirminating: discriminating is treating different what is not, not treating different what is different.

Joan Barata, Professor of Communication Law and Vice Dean for International Relations and Quality at Blanquerna Communications School, Universitat Ramon Llull

Net neutrality is not (only) about technology.

There is a big difference between hetero-regulation and self-regulation. And self-regulation might not be enough, so external regulation may apply.

And it is not (only) about discriminating traffic, but also, for instance, about the design and functioning of search engines: how do they search, how do they show the results, etc.

The problem is that if we add a regulatory burden to the carrier, we are also adding to it the possibility to open and peak on the packets that it is carrying. So, we may have a trade-off between free competition and privacy or even security.

‘Reasonable’ discrimination is also a complex issue. It is not ‘reasonable’ to discriminate on a monopolistic basis, to avoid competition. On the other hand, it is not ‘reasonable’ to discriminate on a politics basis, banning specific ideologies. But, would it be ‘reasonable’ to discriminate if the user wants so? The FCC acknowledges that whenever the user has control over the discrimination, that is ‘reasonable’.

But the discrimination based on what you pay is not ‘reasonable’.

So, when we speak about regulations — and regulators — it may be a good idea not to design it to regulate networks, but also with the aim to regulate content, as net neutrality is a matter of both worlds: technology and society.

Ángel León, State Department for Telecommunications and Information Society
Net Neutrality: a critical vision of the normative approach

Why are we speaking about Net Neutrality when al the goals seem to be the traditional ones that applied to the regulation of telecommunications as we used to know them?

A first difference is using Net Neutrality and its regulation as a unifier of different problems or open topics on telecomm regulation. A second one is that Net Neutrality only applies to a specific kind of networks: the Internet. And a third one is that the regulation will apply regardless of the size or market power of the operator.

Most of the regulation on Net Neutrality focus on the quality of the service. But some obligations we impose on the operators just do not allow them to provide this quality service.

On the other hand, there are some practices that circumvent any kind of restriction, like being able to control the presence of the user at a given time, where is the user, knowing their capabilities to connect, being able to stablish different pricing systems, etc.

The usual Net Neutrality approach favours a layered model, with a neutral point of access, but a discriminating service. Indeed, it does not allow for priorities, or different treatment for different cases.

Internet represents a new paradigm which does not allow for traditional regulatory approaches. It’s value change has become so broad, that regulating only access or some specific checkpoints is almost useless.

Discussion

Chris T. Marsden: wouldn’t it be possible to try and sync Europe with the US? León: the problem is that laws and rules (norms, regulation in general) are two different things. And in the case of Europe, Laws are really behind providing an appropriate framework within which rules and norms can be designed. That is not the case of the US, where the FCC can act powerfully with a Law scheme drawn in 1996.

Miquel Peguera: what is the future like? Barata: one of the most important things will be being able to put the correct questions and being able to explain them to the population at large. Elias: the collapse of the network is not something that one can envision, but it is nevertheless a powerful argument against Net Neutrality. Indeed, it is the chaos and anarchy of the Internet what made it the rich space that it is. León: the citizenry wants an open Internet and governments should provide the framework for that to be possible. The question is how Net Neutrality can enter laws: as a right, a regulatory principle or a goal. And each one requires a very different approach.

More information

7th Internet, Law and Politics Conference (2011)

7th Internet, Law and Politics Congress (I). Christopher T. Marsden: Network Neutrality

Notes from the 7th Internet, Law and Politics Congress: Net Neutrality and other challenges for the future of the Internet, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 11-12 July 2011. More notes on this event: idp2011.

Christopher T. Marsden, Communications Law Prof, University of Essex, UK
Network Neutrality: European Law?

Common carriage is fair reasonable and non-discriminatory treatment of content whatever its nature. Eli M. Noam predicted in 1994 the end of common carriage, though the debate is much older. Every time there has been a debate on monopolies on the “carrying” nature of some specific infrastructures, the debate on common carriage has rised: inns and boats, railways, telegraphs, then modern networks, etc.

Network neutrality debate began as we know it in 1999 due to mergers of cable TV and broadband companies, and sparkled by Lessig and Lemley FCC submission The end of End-to-End.

Internet, as an open network, was regulated by common carriage, and some general rights were granted to it to avoid discrimination:

  • Interoperability
  • Interconnection
  • Privacy
  • Interception

There actually are a number of actual and considered practices that are about to — or already have — cross the red line of net neutrality, like different tariffs according to usage, different speeds, etc.

So far we have a Net Neutrality ‘lite’, with some decisions in Canada, the US or Europe, with ‘non-discrimination’ presumption subject to national security, law enforcement, public safety, etc. and a ‘reasonable network management’. And we will negotiate Net Neutrality ‘heavy’ about different speed rates, special and managed services, etc.

The problem with the many backdoors that the exceptions add to ISP regulation imply, in practical terms, that there are many possibilities for ISPs not to be neutral at all.

Presently, Chile (2010), Finland (2010) and the Netherlands (2011) have issued Net Neutrality specific laws, while Canada and Norway are on their way to it.

In Europe, we had a declaration to protect Net Neutrality and no will to implement nothing but just delaying it forever (despite officially being a debate and a formal proposal for a directive).

Discussion

Q: What can policy-makers do? A: The ECOSOC is actually doing research on Net Neutrality. Civil society is also working hard, as it did at the OECD high-level meeting on net neutrality. There has to be a serious negotiation, especially in matters as censorship and what is the acceptable level of censorship that we want.

More information

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Internet, Politics, Policy (VII). Internet Governance (II)

Notes from the Internet, Politics, Policy 2010: An Impact Assessment conference, organized by the Oxford Internet Institute, and held at St. Anne’s College, Oxford, UK, on September 16-17, 2010. More notes on this event: ipp2010.

Political Economy of the Network Neutrality in the European Union
Meelis Kitsing, Department of Political Science, National Center for Digital Government, University of Massachusetts Amherst

Network neutrality: access providers should not charge higher prices for priority delivery, elimination of price discrimination and traffic prioritization, no denial of access to specific services or applications, etc.

In Europe both content providers and network operators supported the final version of the EU telecom packages, while normally (e.g. in the US) they have opposite visions. The reason may be that they provide complementary groups, so regulations on one party might end up impacting the other party. Of course this may be context-dependent and valid only where functional separation prevails. In any case, it is more like a coordination game, like the battle of the sexes game.

But the debate is scarce and narrowed to technical issues, leaving aside ideology.

On the other hand, even if there is an agreement at the European level, regulations have to be transposed at the national level.

Estonia is a small but critical case in pioneering ICT-related legislation, maybe because of the importance of Skype at the international level.

Let’s Get Physical: Methodologies for Framing Critical Internet Policy and Governance Issues from a Sustainable Development Perspective
Don MacLean, International Institute for Sustainable Development

The information society perspective is terrific (more access to more content in less time, etc.), as terrific as terrible is the perspective over sustainable development: the ecological footprint has surpassed the biocapacity of our planet and now we are incurring into an ecological debt (WWW (2008). Living planet report, p.22), though there are several policies that could reduce this ecological debt (íbid. p.23).

Impacts of Internet and ICTs on sustainable development: first order effects (direct), second order effects (indirect) and third order effects (systemic). And some uncertainties: what technological designs and standards to connect everything and minimize environmental impacts, policies to convert first and second order effects into systemic transformation, governance principles, how to connect the Internet and ICTs to sustainable development, etc.

A project identified 10 critical Internet policy uncertainties and explored the impact on sustainable development of policy choices based on government-led, market-led, security-driven, and community-based governance scenarios.

Some recommendations are to consolidate the existing research on relationship of the Internet with sustainable development, survey research on the web 1.0 relationship between second and third order effects (individual behaviour, attitudes, values, economic structures, social structures, government structures).

Canada’s internet policy: Is ‘inclusiveness’ road-kill on the information highway
Mary C. Milliken, University of New Brunswick

Many people do not participate because (a) they have no access but especially (b) they are not included in the design of the participation processes.

In Canada, civil society organizations were excluded from telecommunication policy, though they had been included and active in media policy.

Governments have a very business-oriented approach when regulating telecommunications and broadcast media, and the people have been left aside.

The CBC began using the Internet in order to be really universal, though they didn’t had specific resources to do so. After a restructure, the CBC labels itself as a content provider, and a provider of content that has to be possible to broadcast in any channel or platform.

But the Internet has no attached requirement to be a public service, and be regulated as such. If the Internet had been understood as a broadcasting media, it could have been regulated as other platforms and have attached this public service requirement/criteria.

Policy-making for digital development: the role of the government
Ismael Peña-López, Open University of Catalonia

If you cannot see the slides, please visit <a href="http://ictlogy.net/?p=3505">http://ictlogy.net/?p=3505</a>

Papers

Internet, Politics, Policy 2010: An Impact Assessment (2010)