Divide and rule

With the UK government and BT threatening net neutrality, Joel Stein looks at its history and why it is a fundamental ideal to uphold

Image: CC-AT-SA Flickr: morgaine

Earlier this month, BT reignited the net neutrality debate in the UK with the launch of its new Content Connect service, which lets ISPs charge content providers for high-speed delivery of their data. So what is net neutrality? How has the concept evolved? And what are the implications of BT’s announcement?

Net neutrality is the idea that all data flowing across the internet is treated as having equal importance. This doesn’t mean that people get the internet for free, or that you can’t pay more for a higher quality service. But it does mean that service providers must treat all web traffic equally, and not seek payment from other entities to ‘fast-track’ their data.

This idea, central to a free and open internet, has a heritage that stretches back well beyond the information age; ‘common carrier’ regulations were put in place during the early days of the railway – these prevented the owners and operators of the rail network from discriminating against cargo on the basis of its destination or owner, and similar rules were later applied to telegraph and telephone networks (albeit not consistently).

Ten years ago, founder of Creative Commons, Lawrence Lessig, was already warning that ISPs running cable services had “exercised their power to ban certain kinds of applications (specifically, those that enable peer-to-peer service) [and] blocked particular content (advertising from competitors, for example) when that content was not consistent with their business model.” In 2003, Tim Wu, a professor at Colombia Law School, proposed legislation that might deal with these kinds of issues.

By 2005, consumers, ISPs and cable companies in the US were debating the concept of net neutrality, and, in 2006, AT&T agreed to adhere to net neutrality provisions as part of its $85 billion merger with BellSouth. This agreement, despite containing a couple of exceptions to the principle, was the first step in establishing what net neutrality really meant in a practical context, although Republican Commissioners warned that the FCC’s approval of the merger shouldn’t be treated as a ruling on net neutrality.

Here in the UK, the debate took longer to fully materialise. In 2007, then Ofcom policy chief Douglas Scott indicated that the regulator planned a “hands-off” approach to the issue. Speaking rather more bluntly, Virgin Media CEO Neil Berkett declared in a 2008 interview that “this net neutrality thing is a load of bollocks.” In June 2010, Ofcom published a discussion paper on the subject, but Culture Minister Ed Vaizey appeared to have made his decision already, stating in November that ISPs should be free to experiment with the way they deliver content, and explicitly suggesting the possibility of “a two-sided market, where consumers and content providers could choose to pay for differing levels of quality of service.” He later claimed that his speech had been misinterpreted. Around the same time, a consultation carried out by the European Commission revealed serious concerns about the effects of ‘traffic management’ and bandwidth throttling on the future of networks.

Back in the US, the FCC set out its plan for safeguarding net neutrality in 2009, and invited input from stakeholders. Google and Verizon proposed a new legislative framework in August 2010, suggesting, contrary to an April 2010 court ruling that imposed limits on the FCC’s authority to regulate the internet, that the FCC should be given the power to enforce net neutrality. However, a long and troubling list of exemptions in the Google/Verizon proposal left critics highly suspicious of its stated goals.

On 22 December 2010, having identified a number of legal justifications for its regulatory intervention, the FCC implemented a new set of rules (the Open Internet Order) in a move it claimed would protect net neutrality. Unfortunately, the order appeared to be “riddled with loopholes and exemptions” and could set a legal precedent for more sinister regulation of the internet by the FCC in the future.

Despite the evident weaknesses in the FCC’s new rules, which are favourable to ISPs and cable companies in many ways, Verizon have this week decided to fight the legislation in the US Court of Appeals. Verizon argue that the FCC’s “assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers.” Verizon claim they are committed to “preserving an open internet,” but they are opposed to regulation of any kind. The idea that net neutrality should be left to those who stand to profit from a two-tier internet is perverse to say the least, but that is essentially how they are presenting the issue.

In the UK, Ofcom is due to clarify its stance on net neutrality later this year. The current situation, though, is worrying. BT has recently launched its priority Content Connect service, sparking fierce criticism. The Open Rights Group’s Jim Killock has said that “This is a sea change in the way that content is delivered by ISPs. It is essentially them saying: ‘Rather than delivering whatever content is on the internet as best we can, here are our services that we will deliver through our own network.’” BT has denied that Content Connect will pave the way for a two-tier internet, but the reality is that a two-tier system would be profitable for them. BT claims to support the concept of net neutrality, but has also said that ISPs should be free to charge content providers for a ‘higher quality’ delivery mechanism. Clearly, there is a gaping inconsistency here. Like Verizon, BT want to be trusted, but are doing little to inspire faith.

Towards the end of 2010, the Open Rights Group and 19 other organisations including eBay, Skype, Which, We7, Yahoo and the NUJ sent an open letter to Ed Vaizey demanding that the government enshrines net neutrality in law. Since BT’s announcement, this issue has become increasingly urgent. Net neutrality protects the rights of end-users to access information freely, but it is also fundamentally necessary for competition, creativity and innovation. This isn’t just about the preserving the democratic architecture of the internet, but also about integrating it as productively as possible with the market. A two-tier internet would inevitably lead to a world where content provision is monopolised by a few big players. This isn’t just a cultural crime, but also something which could distort the economy in profound and perilous ways.

Wikipedia founder Jimmy Wales thinks that net neutrality fears remain “largely theoretical”. This is surely naive. At multiple levels, commercial forces have already colonised the internet, increasingly threatening its status as an open domain. Make no mistake, net neutrality is under attack, and those that seek to defend it must be ready for battle.

 

Joel Stein has an MA in Media & Journalism. He blogs for the Insight Film Festival and tweets as @joelstein