Net Neutrality for an egalitarian Internet

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Article published in ALAI’s magazine No. 503: Hacia una Internet ciudadana 28/04/2015

Developing countries, including their otherwise politically conscious and active groups, have to date mostly engaged only with issues of basic access to the Internet, and the quality or bandwidth of connectivity.  Talking about the architectural and governance issues relating to the Internet is often considered to be premature when people do not have basic access.  Taking advantage of such apathy, telcos and big Internet companies (those providing content and applications) have chosen developing countries to begin fiddling with the basic egalitarian design of the Internet.  The purpose is to set up permanent rent seeking positions with regard to this most important techno-social infrastructure of the current times.  Facebook and Google have got into agreements with Internet Service Providers (ISPs) to make their services available free of data charges.  This makes for an uneven playing field for competing services, including those provided by start-ups or by non-profit organizations who cannot afford to pay the ISPs for making their services similarly available with no data charges.  Facebook has gone a step further and pulled together a bouquet of different kinds of services into an offering called which is provided free of data charges, in partnerships with ISPs.  The big telcos, who are the main ISPs, are also exploring business models to provide priority channels – with faster and better transmission – to content providers who are willing to pay extra, at the expense of all other traffic.  Often they simply block communication services like Skype and Viber that compete with voice services provided by the telcos, or ask for higher data charges specifically for using such services.


Some such practices are currently common in most developing countries.  If these are allowed to take root, the basic egalitarian model of the Internet, of giving equal status to all content and applications over it, will be deformed forever.  This is not only about equity within our communicative sphere, or even just the media, which are no doubt important considerations.  As most social sectors are undergoing fundamental transformations on the back of the networked digital paradigm, such fundamental distortions in the architecture of the Internet have society-wide implications in terms of how egalitarian or otherwise our emerging social systems would be.


Net neutrality is a principle that the ISPs will treat all content, applications and services equally, and not prioritize or degrade any in relation to others.  Telcos have the obvious incentive to build priority channels and charge more for them.  Dominant Internet companies have the incentive to rent such priority channels, thus employing their financial muscle to suppress competition, which often comes from poorly-resourced start-ups.  Such kinds of commercial deals, though prima facie unfair, are common in most economic areas.  It is important then to understand why regulatory interventions are needed in relation to the Internet to ensure that no discrimination on commercial grounds takes place.  Meanwhile, there are many shades of views about net neutrality, and even what is meant by net neutrality.  It is common to hear big telcos and big Internet companies, who most people feel violate net neutrality, claiming to be full supporters of net neutrality.  What they mean is that they do not consider some kinds of discrimination, even if commercially motivated, as violations of net neutrality.


What net neutrality is not


It is therefore important to seek clarity around what net neutrality really is, and what is the basis of such a regulatory principle.  One can start by pointing to what net neutrality is not.  Although it is often understood and propounded as such, net neutrality is not a technical principle.  Neither is it a free market principle.  It is true that the Internet's initial architecture was built on the principle that the carrier pipe will be completely dumb, with no capacity to discriminate between the bytes passing over it.  All intelligence was at the periphery, in the end devices which collated the bytes into intelligible patterns.  For a long time now, however, there is considerable intelligence built into the network, which is able to discriminate between bytes for many purposes, especially for traffic management, to ensure good Internet experience for all users.  As long as such discrimination is not done for commercial considerations, whether to favour an ISP's own offerings, or that of their commercial partners, such discrimination is not considered as a violation of net neutrality.  Net neutrality as any kind of technical principle is therefore long dead.  The term is today used principally in the meaning of a regulatory intervention.


A lot of people like to present net neutrality as a free market principle.  Their position is that the market should be allowed to choose which Internet content/ application/ service will succeed and which not.  Telcos cannot be playing favorites in this regard, and thus interfering with a free market.  Very often net neutrality is defined as the right of a user (or consumer) to access and use any content, application or service of her choice.  But then the question arises: does invoking the state's regulatory intervention that disallows many possible business models for the telcos not amount to an interference with free market and free choice?  After all, most telcos today appear ready to provide a variety of models, including those with net neutrality (no doubt only as a result of the enormous pressure that successful net neutrality advocacy has brought upon them), as a set of 'choices' for the customer.  This does appear to be the best way to foster a free market!  It is therefore difficult to defend net neutrality in the name of the free market and free choice alone.


Much more than free choice, net neutrality is about equal opportunity.  Just as the common schooling system is a social means for a certain equality of opportunity for all children, net neutrality is basically an attempt to ensure equal opportunity to various social actors and activities that employ the Internet for many different purposes.  This does certainly include start-up Internet companies, which imperative, since they certainly are not among the most oppressed classes of people, is promoted in the name of ensuring innovation.  Unfortunately, it is the language of the market that is somewhat exclusively invoked in the context of net neutrality.  To understand the real meaning and significance of the net neutrality principle, it is important to claim the larger social moorings of the Internet.  It can be considered to provide a general 'playing field' for shaping and supporting a very broad range of social activities and institutions, the market being just one of them.  The 'evenness' or neutrality of this playing field, meaning the Internet, is important for the consumers, producers and innovators – the market actors – but before that, it is also very much required for citizens, for a variety of social relationships, for culture and for democracy.


Building a case for net neutrality


A much better basis for net neutrality is the 'common carriage' principle coming from telecom regulation. It has precedence in many areas of transport, roads and bridges, and postal services.  As per this principle, a carrier service has to be equally available to all possible 'traffic' over it, in a non-discriminatory manner.  The US regulator recently had to classify Internet as a telecommunication service from its earlier classification as an 'information service' to be able to apply the common carriage principle to it, and then extrapolate it to net neutrality regulation.  However, traditional common carriage thinking often does allow some kinds of paid prioritisation, as we well know in the case of the postal/ courier services.  It is also common to offer different models whereby either the receiving or the sending party could pay for transit.


Such an 'alternative' is the basis of the very controversial practice of 'zero rating' of Internet services. Here some select applications/ services are offered to consumers free of data charges, because the service provider offers to pay the telco for the data costs instead of the consumer.  All other services are available for regular data charges.  It was a zero rating offer from the biggest telco in India which is currently causing a great uproar in India in defense of net neutrality.  Around 100,000 emails are currently being sent daily to the telecom regulator on this matter, with the total number already more than a million to date.  Responding to the charges against it, the concerned telco has claimed that it does not and never will prioritise or throttle any traffic.  What it is doing is merely reversing the role of the payer for some data traffic between the consumer and the producer.  This, the telco claims, does not distort the basic net neutrality principle, in that no traffic gets prioritized or de-prioritized.  It is still not clear if the new net neutrality regulation in the US would prohibit such zero rating practices.  Apparently, something more that the common carriage principle, applied in the communication and transport sectors, is required to keep the Internet really non-discriminatory.


Indeed, Internet today is quite more than just a channel of communication.  To start with, it is universally recognized as a new form of media.  Apart from the 'common carriage' principle, application of some media regulatory principles to this new media of the Internet can provide a good basis for protecting and promoting its non-discriminatory, public nature.  Media is recognized as a sector of such exceptional social importance that it is customary not only to prohibit various kinds of discrimination, which may be allowed for regular commercial services, but also to ensure things like checks on vertical integration (for instance, between carrier and content layers), limits on cross-media or cross-platform ownership, clear separation between editorial and commercial content, positive discrimination to protect diversities of various kinds, and so on.  It will be pertinent to extrapolate some such regulatory principles from the media space to the Internet and see what kind of regulation best serves the public interest, and how the Internet can be really neutral and egalitarian, ensuring equity for all.


The false binary of 'bad telcos' and 'good Internet companies'


Looking at the Internet as media takes us to a consideration of its 'neutrality' and public nature in layers beyond the infrastructure or the telecom one.  It is argued by many 'Internet enthusiasts' that regulation is needed in the telecom layer but not in the higher – application or content – layers of the Internet.  The 'unique monopoly tendencies' of the telecom layer is given as the primary reason.  There is some truth in this assertion, since the telco business involves huge upfront costs as well as steeply declining cost/revenue ratios as more competing players come in. Here then we are able to come up with a clear principle on the basis of which necessary regulatory decisions can be made: any layer of the Internet that exhibits significant monopoly tendencies may require regulation to ensure appropriate 'neutrality' for and across actors and activities that use that layer.  This is necessary because the Internet is of such a fundamental importance to the emerging social structures that it cannot be left entirely to market forces.  Any regulatory stance with regard to the Internet therefore needs to be taken on the basis of this clear principle aimed at serving the public interest.  It is important to get out of the simplistic notion of 'hate telcos, love Internet companies' which often informs net neutrality discourse at a popular level.  This has no doubt been fed by considerable public perception management by multinational Internet companies, and also has some ideological as well as geo-political basis which it is not possible to go into in this article.


Telcos are no doubt in a very significant 'controlling' or 'gate-keeping' position.  They have shown a propensity to act in an oligarchic manner towards systematic net neutrality violations, market forces alone being unable to check such distortions.  Net neutrality is therefore important to enforce.  Without net neutrality much of the egalitarian potential of the Internet will be lost, and the emergent digitally-underpinned social structures will be inherently more unequal than even the current ones that are bad enough.  However, we must also keep in mind that there are extremely significant monopoly characteristics in other layers of the Internet as well, which are as basic to an equitable or even 'digital playing field'.  Accordingly, appropriate regulation may also be required for these higher layers of the Internet, to keep them sufficiently open and avoid rent-providing positions.  It is much more difficult today for people to shift out of their default applications for social media (Facebook), instant media (Twitter), messaging (WhatsApp) and knowledge work ('the Google environment') than it is to change  one's telcom service provider!  (This is especially true for places where number portability has been enforced through regulation, like in India.)  This fact underlies a very interesting tale that gets obfuscated in the current net neutrality debate that is often presented as some kind of stand-off between the bad, exploitative telco sector and the liberating, entrepreneurial Internet sector.  (Was the same private telco sector not the hero of the 'mobile revolution' in developing countries, till just a few years ago!)


It is about people's rights and egalitarianism


Keeping the Internet neutral is extremely important, as it becomes not just the infrastructure but the matrix of so much social activity, and of society's organizations and institutions.  It would not be hyperbolic to say that we are moving towards an Internet-mediated society.  It is any society's political decision that determines what it treats as the 'playing field' issues, sectors or conditions whereby a certain degree of equity is enforced in such areas through policy or regulation, and what are considered as the 'play' areas, in which regard, people can compete and accordingly 'win' (or lose) allocation of resources.  Traditionally, governance, justice and basic security are considered 'playing field' areas, as also basic education, health, and an increasingly number of what are understood as people's rights.  Whether it is found necessary to ensure that some basic Internet services are provided equitably to all – not only as consumers of services, but also as producers, sharers, innovators, citizens, and so on – is therefore a socio-political decision, depending on what kind of society we want.  It is such socio-political considerations that underlie the regulatory principle of net neutrality.  Accordingly, it will be appropriate to locate the Internet in a rights based framework, not only of negative rights like freedom of expression and privacy, but also positive rights such as universal access and a certain degree of basic 'neutrality' and egalitarianism of the Internet.


In sum, net neutrality is neither a technical principle, nor something necessary to uphold free markets. It is an egalitarian principle as applied to a key building block and determinant of our new social systems, which the Internet is.  Enforcing this principle is necessary if we are to ensure greater egalitarianism of our societies as we go ahead. It is necessary to preserve and promote the logic of horizontality and equality that made the Internet such a disruptive force, not only in the economic but also the political, social and cultural spheres.  It is as important to check the concurrent tendencies of rapid centralization of power in so many areas, that the networked social logic has caused.  But to be able to ensure all these, the principles of neutrality, non-discrimination and equity have to be applied consistently and meticulously to all layers of the Internet.  The key struggle today is about the neutrality of the infrastructure or telecom layer vis a vis the higher layers of applications, content and services.  However, similar struggles will be required for addressing monopolies, lock-ins and rent-structures in these higher layers.  Therefore, while it is important to rally, and rally hard, for net neutrality, one must beware of doing so under the banner of the Googles and Facebooks of this world (while tactical alliances may certainly be considered).  We need to keep our powder dry for the day when we will be rallying for opening up the Googles and the Facebooks, and ensuring 'neutrality' in the layers that they monopolize!


Treating net neutrality as basically a social egalitarian principle also helps us avoid extreme 'technical' positions – like seeking strict neutralities of some kinds even when they may manifestly be against the public interest.  It is possible that, at times, upholding the public interest may call for positive discrimination in favor of some applications, content and services.  This may not amount to a violation of net neutrality, in the same way as reservations for women in jobs is not considered gender discrimination.  As Internet-connected mobile phones become near ubiquitous, even in developing countries, it is entirely possible that governments enable and promote a zero data charge channel for some essential citizen services, which could include obtaining their participation in key public discussions and decisions. Similarly, with Internet likely to become a key if not the main platform for community media, it could be useful to explore committed channels for local community radio/ TV, possibly with zero data charges. Such possibilities can be enforced by the regulator on the telcos through license conditions.  Such measures indeed contribute to greater non-discrimination or neutrality of the Internet, in that they merely mitigate inequalities and discriminations that get built into the overall social structures.  Positive discrimination on the Internet in the public interest, determined by duly legitimate means, fits with the definition of net neutrality that bars any discrimination 'by infrastructure providers' on any kind of 'commercial grounds' among different applications, content and services.


Parminder Jeet Singh is with IT for Change, an NGO based in India, which works at the intersection of digital technologies and social change, with a focus on equity and social justice.


Article published in: Latin America in Movement 503, ALAI, April 2015.  “Towards a people’s Internet”

Publicado en Revista: Hacia una Internet ciudadana

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