Sleight of Hand or Global Problem: The Two Sides of the Net Neutrality Debate

Sleight of Hand or Global Problem: The Two Sides of the Net Neutrality Debate

Sulan Wong (Universidad Católica de Temuco, Chile), Julio Rojas-Mora (Universidad Austral de Chile, Chile) and Eitan Altman (INRIA, France)
DOI: 10.4018/978-1-4666-8336-5.ch003


The neutral nature of Internet has allowed its consolidation as a crucial tool in the dissemination of knowledge and access to culture. Due the creation of new business models of Internet access, a debate about the need of keeping a neutral Internet has emerged, leading to a sudden regulatory process that seems to emerge from a process of public consensus. However, participation in this debate requires knowledge in telecommunications, economics, and law, leaving participation to expert actors. In public consultations on Net Neutrality and in the resulting legal documents, three fundamental problems related to net neutrality are studied. Firstly, what constitutes a neutral, open and free Internet? Secondly, what is the effect of traffic management and what are the consequences of providing differentiated services? Finally, can transparency be an efficient tool to curb potential violations of net neutrality? This article presents the historical background that led to this debate and how its main points have been treated primarily in USA and Europe.
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In recent years we have witnessed a public debate on the future of the Internet, between those who defend the principle of net neutrality, which restricts traffic management and promotes free and open access to contents, sites and platforms on the web, and those who support selective traffic management to avoid network congestion, improve security and foster the creation of new business models. Exceptional legislative initiatives have been taken, which may pave the way to shape a different future for the Internet. Public consultations about net neutrality were launched in both USA and Europe.

The way in which this debate has been conducted on both sides of the Atlantic has been different. In the United States the government has promoted discussion through the Federal Communications Commission (FCC), recognizing that there is a real problem of discriminative Internet traffic management. In an unprecedented decision that rebuffed the legal authority of the FCC on neutrality issues, a Court in the USA has twice halted its attempts to set up rules on the open nature of Internet. European authorities, however, have consistently denied the existence of a problem of neutrality that could jeopardize their networks. The discussion highlighted that there were large differences in the interpretation of the principle of net neutrality among different stakeholders, ending up focusing more on the importance of maintaining a free and open Internet than a neutral one, in order to avoid addressing the need to formulate clear rules that ensure the net neutrality principle. Only last year, the European Parliament began to discuss about the importance of including the principle of net neutrality in European regulation, while at the same time the freedom to create “specialized services” was also proposed.

We have also seen the first country, Chile, adopting legislation that establishes network neutrality, followed by the Netherlands and Slovenia. Before Snowden's leaks, Brazil had been working since 2011 on a bill in which the principles, guarantees, rights and obligations regarding the use of Internet were established. It was not until this year that this project was pushed through, using the leaks as catalyst for legislative urgency and its prompt approval. Given that Snowden's revelations showed, on one hand, the power of the United States over the Internet and, on the other hand, the weakness of the other governments to protect the private data of their citizens, including that of their leaders, whose vocal protests have been heard from Olympus, Brazil decided to enshrine in its law something more than its commitment to net neutrality, giving the world the first legal recognition of the borderless nature of the Internet. The effect of one country’s decision, especially those who happen to host most of the services regularly accessed by users, on any subject that attempts against the net neutrality principle, will undoubtedly affect the entire Internet.

Why do we consider the topic important? Why do we open up the topic into the open knowledge debate? The net neutrality principle touches the heart of the Internet. The Internet has had a huge impact on economy and communication, but also on the exercise of socio-cultural and fundamental rights. In 2009 France passed a law against unauthorized downloading of copyrighted material. It established that measures against piracy, included disconnection from the Internet, could be issued by an administrative authority. The Constitutional Council went back to the Declaration of the Rights of Man and of the Citizen (from the time of the French revolution, two hundred years before Internet's birth) to conclude that the freedom of speech could not be entrusted to a new non-judicial authority in order to protect holders of copyrights and neighboring rights. In its judgment, it recognized that the right to free communication of ideas and opinions implies the freedom to access the Internet (French Constitutional Council, 2009-580 DC §12); in other words, Internet is an instrument for exercising the freedom of speech. In article 19 of Universal Declaration of Human Rights it states: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Internet has created a legitimate expectation of the right to reliably and securely access information, knowledge and culture. However, the debate continues to focus on issues of technical and economic order, thus moving the discussion on the importance of maintaining an open and neutral Internet to access information, knowledge and culture, as it is undeniable that the practices of sharing and exchanging knowledge have been altered by the Internet.

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