Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you posses any methods of enforcement we have true reason to fear.
As the internet has grown in popularity and as its function has expanded, the need for increased regulation has become apparent. Ecommerce and the associated concerns with the security of financial information and the ability to distribute large media files are arguably two of the main factors creating pressure on the openness of the internet. Indeed it seems to be the case today that the very openness and freedom Barlow and others sought now depends on regulation.
Following the discovery that some ISPs are favouring certain types of traffic over others, questions have been raised as to what form of regulation, if any, would be most suitable to maintain network neutrality. Comcast is one company who has acknowledged imposing restrictions on the flow of data from the BitTorrent file sharing network. Recently they have announced an intention to develop a ‘File Sharing Bill of Rights’ with the Comcast chief technology officer Tom Werner stating that having such a framework will help P2P companies, ISPs and content owners find common ground to support consumers who want to use P2P applications to deliver legal content. This proposal seeks to establish a form of voluntary self regulation.
Self regulation typically occurs when governments allow industries to develop their own standard practices often providing in legislation for a government authority to approve and oversee their development. In Australia, self regulation of the internet occurs primarily through the Internet Industry Association. There a number of approved and draft codes of practice including the Spam Code, Content Code, Gambling Code, Privacy Code (Draft) and Cybercrime Code (Draft).
Like many, I am sceptical about whether this is the best form of regulation for an issue as important as network neutrality. Particular issues with the way this proposal seems to be developing include that it is only designed to address the sharing of ‘legal’ information. Given that all file sharing networks have some legal purpose this in itself suggests that the wider adoption of ISP based filtering or shaping may be a concurrent possibility. The appointment of members to the entity forming such a policy is also problematic with no independent allocation of places. Although there has been some suggestion of a representative from Free Press being appointed to the committee, the organisation which initially lobbied the FCC to investigate Comcast, it is unclear at this stage whether there will be an even representation of consumer advocates to commercial entities. Those most likely to be involved in the development of the code are those least interested in ensuring the network remains neutral. ISPs, major software developers and copyright holders all seek to benefit financially from being able to prioritise traffic at the expense of independent creators. The lack of oversight of the FCC in the development of the code may also be problematic as would be enforcement without official recognition by the government.
Other possibilities include the use of technology to ensure ISPs are not directing the flow of traffic. Peter Eckersley of EFF writes that there are a number of software packages available now and due to be released shortly which can be employed to ensure neutrality. Arguably this is still a form of self regulation as again there is no oversight or input from the government into the establishment, operation and enforcement of the regulation. While the software is developed by third parties there remains significant questions as to the input by the general public and the potential bias for ISPs and major media corporations.
Some suggest that the better approach is a legislative one with a Bill drafted in the United States. The Internet Freedom Preservation Act was developed in February 2008 and requires the:
Federal Communications Commission to assess whether broadband providers are "blocking, thwarting or unreasonably interfering" with consumers' rights to access, send, receive or offer content, applications and services over networks.[ msnbc/Associated Press, 'Net neutrality' bill introduced (13 February 2008) <http://www.msnbc.msn.com/id/23147101/> at 18 February 2008]
Others suggest that altering the network to such an extent would be extremely difficult and that no intervention by the government is required or that the best approach is simply increased competition in the broadband market.
This is a fundamental issue that should not be left to chance. Most likely a combination of all of these approaches is needed however self regulation, on its own, without a deliberate effort to consider consumers and independent creators seems the least neutral approach of all.
Further Reading
Wikipedia, A Declaration of the Independence of Cyberspace (1 March 2008)
<http://en.wikipedia.org/wiki/A_Declaration_of_the_Independence_of_Cyberspace > at 27 April 2008
Internet Industry Association <http://www.iia.net.au/> at 27 April 2008
The Register, Comcast proposes P2P 'bill of rights' (16 April 2008) <http://www.theregister.co.uk/2008/04/16/comcast_proposes_p2p_bill_of_rights/> at 26 April 2008
TechDirt,Changing The Internet's Architecture Isn't So Easy (24 April 2008)
<http://www.techdirt.com/articles/20080419/150606895.shtml> at 26 April 2008
TechDirt, But Why Do We Need A P2P Bill Of Rights In The First Place? (16 April 2008) <http://www.techdirt.com/articles/20080416/015107858.shtml> at 23 April 2008
Washington Post/The Associated Press, Comcast wants 'bill of rights' for file-sharers and ISPs (15 April 2008) <http://www.washingtonpost.com/wp-dyn/content/article/2008/04/15/AR2008041501993.html> at 17 April 2008
The Star, (5 April 2008) <http://www.thestar.com/Business/article/410454> at 8 April 2008
TechDirt, BBC To ISPs: Don't Traffic Shape Me, Bro (4 April 2008) <http://www.techdirt.com/articles/20080403/151858743.shtml> at 7 April 2008
EFF Deeplinks, Comcast Reduces Discrimination, Plans To End It Altogether (28 March 2008) <http://www.eff.org/deeplinks/2008/03/comcast-reducing-discrimination-planning-end-it-altoghether-isp-testing-remains-es> at 30 March 2008
EFF Deeplinks, Software for Keeping ISPs Honest (28 March 2008) <http://www.eff.org/deeplinks/2008/03/keeping-isps-honest> at 30 March 2008
TechDirt, Comcast Realizes Blocking By Protocol Is A Problem; Asks BitTorrent For Some Help (27 March 2008) <http://www.techdirt.com/articles/20080327/094811665.shtml> at 30 March 2008
TechDirt, Surprise: Hollywood Favors Short-Term Fads to Long-Term Strategy (14 March 2008) <http://www.techdirt.com/articles/20080313/232935540.shtml> at 18 March 2008
P2PBlog, German cable ISP admits Bittorrent blocking (10 March 2008) <http://www.p2p-blog.com/item-539.html> at 11 March 2008
TechDirt, Censoring The 'Net Is Hard (5 March 2008) <http://www.techdirt.com/articles/20080304/143250431.shtml> at 7 March 2008
SiliconValley.com/Associated Press, N.Y. attorney general subpoenas Comcast on traffic throttling (26 February 2008) <http://www.siliconvalley.com/news/ci_8369162?nclick_check=1> at 29 February 2008
The Register, New York Subpoenas Comcast 'reasonable network management' records (27 February 2008) <http://www.theregister.co.uk/2008/02/27/andrew_cuomo_subpoenas_comcast/> at 28 February 2008
TechDirt, We Need A Broadband Competition Act, Not A Net Neutrality Act (26 February 2008) <http://www.techdirt.com/articles/20080225/135642351.shtml> at 28 February 2008
CNet News Blog, Net pioneers trash Comcast's P2P traffic treatment (25 February 2008) <http://www.news.com/8301-10784_3-9878841-7.html?tag=nefd.top> at 26 February 2008
The New York Times, FCC to Act on Delaying of Broadband Traffic (25 February 2008) <http://www.nytimes.com/2008/02/25/technology/25cnd-fcc.html?_r=2&ex=1361682000&en=400675c21d9dc50b&ei=5088&partner=rssnyt&emc=rss&pagewanted=all&oref=slogin&oref=slogin> at 28 February 2008
FreedomToTinker, Comcast’s Disappointing Defense (18 February 2008) <http://www.freedom-to-tinker.com/?p=1256> at 22 February 2008
TechDirt, As Expected, BitTorrent Providers Planning To Route Around Comcast Barrier (18 February 2008) <http://www.techdirt.com/articles/20080215/171450267.shtml> at 19 February 2008
Digital Music News, In a Jam, Comcast Defends Traffic-Throttling (13 February 2008) <http://www.digitalmusicnews.com/stories/021208comcast> at 19 February 2008
The Register, BitTorrent busts Comcast BitTorrent busting (19 February 2008) <http://www.theregister.co.uk/2008/02/19/bittorrent_developers_hit_back_at_comcast/> at 19 February 2008
msnbc/Associated Press, 'Net neutrality' bill introduced (13 February 2008) <http://www.msnbc.msn.com/id/23147101/> at 18 February 2008
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