How do You Like your Net Neutrality: Weak or Strong?

Net neutrality occupies a very strange position in the online world. Everyone seems to talk about it - especially those with vested interests - but there's very little rigorous discussion of what it means, both technical and economically. ...

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Net neutrality occupies a very strange position in the online world. Everyone seems to talk about it – especially those with vested interests – but there's very little rigorous discussion of what it means, both technical and economically. That's what makes a new report [.pdf] "The open internet – a platform for growth" particularly valuable: it provides some much needed detailed analysis of the issues.

But first, a caveat. This research was commissioned by the BBC, Blinkbox, Channel 4, Skype, and Yahoo, and you don't have to be a genius to guess (a) what they think about the need for net neutrality and (b) what the report says. But even though sceptics are bound to be, well, sceptical about its recommendations, I think it's well-worth reading nonetheless.

The report lays out its position in the Executive Summary:

The principles governing the open internet were established as norms early on and include:

The ability of end-users to discover and access lawful internet-based content or applications of their choice.

The ability of content and application providers to access end-users "without permission" from network operators and no requirement to pay for access to end-users.

We do not include in our definition of the open internet a requirement that all data are necessarily given equal priority, an additional concept that is often included in definitions of "net neutrality". There are circumstances in which traffic management for legal or technical reasons is beneficial, provided the approach is not discriminatory.

I'll come back to that last point later.

The main part of the report opens with an analysis of the benefits of the open Internet – the preferred term for "net neutrality" here. One box gives the following examples of how net neutrality has already been undermined in Europe (beginning, purely coincidentally, with the BBC as victim):

Between late 2009 and 2010 the BBC iPlayer suffered a reduction in service bit rate and quality for many end-users which the BBC, but not end-users (at least initially), detected. This resulted from the introduction of a BT policy in relation to video streaming that their Option 1 broadband users would be restricted to a maximum video streaming rate of 896 kbps between 5 pm and midnight. In practice implementation of this policy also impacted on the medium quality iPlayer 800 kbps stream with many users reduced to the low quality 480 kbps stream.

In the UK Vodafone charge a premium of £15 per month if users of mobile devices wish to use VoIP applications such as Skype.

Orange explicitly restrict the use of certain non-Orange services in their terms and conditions which state that "The Offer is not to be used for other activities such as non-Orange internet-based streaming services, voice or video over the internet, peer to peer file sharing, non-Orange internet-based video."

In the Netherlands KPN announced its intention in April 2011 to charge a premium for access to specific applications including VoIP, instant messaging and streaming video. The Dutch Parliament responded by passing a bill to implement net neutrality principles in June 2011 (to become law it must also pass the Senate).

Chilling stuff.

But the real heart of the report is to be found in the chapter entitled "Myths regarding the internet value chain". Those myths include "demand is bad" - as if having too much business was a problem; "costs are ballooning because of data growth" - except that technical advances are bringing down costs all the time; and "application providers cause traffic" - when it's the users who ultimately generate traffic through their requests.

The final two myths touch on what is perhaps the most outrageous of the anti-net neutrality crowd's attempts to muddy the waters. It's the idea that application providers should be charged by the end-users' Internet providers to have their bits delivered...which somehow manages to overlook the rather obvious fact that application providers do pay to have their bits delivered – by their Internet providers, just as end-users pay to receive them.

I've never understood why anyone with half a brain took this ridiculous argument at all seriously, but sadly some politicians have, probably because they find all this techy stuff too hard to follow. The current report makes a good, calm job of rebutting that particular bit of FUD, along with the idea that all that extra dosh would magically lead to broadband investment going up (rather than being handed out as directors' bonuses or shareholders' dividends, say....)

After a further chapter filled with rather unexciting (to me, at least) economics, the final section runs through the options for protecting the open Internet/net neutrality, and then concludes with a call for the following:

A clear signal of commitment to the open internet by EU institutions, national governments and regulators.

Internet access should be clearly defined and the use of the term in marketing restricted to those who provide open access to the internet. This measure could be implemented nationally under consumer protection powers.

The application of an industry code of conduct and dispute resolution procedures, trough "self-regulation with oversight", should be promoted. The code should require:

- Open access to and distribution of internet-based, lawful content and applications for consumers; no blocking of legal services and discrimination on the basis of commercial rivalry.

- Protection against unilateral and opportunistic requests for payment i.e. holding players to ransom.

- A principle of parity of access if and where prioritisation is provided on voluntary commercial terms for any content or applications i.e. the same opportunity on the same terms should be available to all (analogous to the principle of equivalence applied at the network access layer).

Policy-makers and national regulators (e.g. Ofcom) should closely monitor market developments given the risks to innovation. If the suggested measures prove insufficient, then intervention by national regulators utilising their powers to protect the open internet under the revised EU Electronic Communications Framework, or the introduction by policy makers of a new legally binding open internet requirement, should be considered.

The key issue, then, is how this "parity of access if and where prioritisation is provided on voluntary commercial terms for any content or applications i.e. the same opportunity on the same terms should be available to all" would work. For either you have absolute parity – what might be called "strong" network neutrality – or this "weak" kind, where there is no requirement for all bits to be treated equally, but for there to be a kind of fairness.

I'm not sure what to think of this. In principle, it might be a neat way of protecting net neutrality without resorting to heavy-handed regulation. But equally, it would depend on the network operators playing fair, and the cynic in me worries they might try to engage in practices that weren't exactly cricket.

So what are your views? Is weak net neutrality enough to give us the things we need, or do we have to go the whole hog to the strong form? Answers on the back of an IP packet...

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