Net Neutrality is About Freedom

One big problem with “network neutrality” discussions is that the concept often is stretched so far it makes no sense. Recall that the original idea was “freedom.” The notion of “permissionless innovation” is key to internet creativity. But that freedom was intended to apply to all parts of the value chain.

Freedom was for users: people were to be free to use all lawful applications. Freedom was for app providers, who would be free to innovate and create new value, functions and capabilities.

But freedom also was for access providers. That was why internet access services were not regulated as common carrier services. As with other parts of the ecosystem, the idea was to allow permissionless innovation for data services and apps of all types.

In recent years, advocates have acted as though the only part of the ecosystem allowed freedom were app providers, not consumers or access providers.

Along the way, the concept has been stretched beyond recognition. When the Federal Communications Commission developed its internet freedoms principles, it spoke directly only about application and end user freedom, the notion being that internet service providers were not to act as gatekeepers. Fair enough.

The problem is that many other practices--including those which impinge on or limit the freedom of other participants in the value chain--have come to be seen as network neutrality issues.

Are usage caps, overage fees or zero rating (giving consumers apps and services at no charge) “network neutrality issues at all? Or are all those examples of terms and conditions of service?

Are those pricing and packaging issues not also issues of “freedom?” It is an old problem. Consider freedom of speech itself. Whose rights are protected, those of the speaker, or those of the listener? And how do we resolve conflicts between the rights of speakers and listeners?

Even if the term “network neutrality” was not coined until about 2003, and no matter the partisan position, network neutrality basic principles have been fairly clear at one level.

The fundamental principle, in the United States, is that consumers are allowed to use any lawful application, and that use of lawful apps cannot be blocked by an access provider.

Also, one might well argue that such consumer freedom also extends to app providers and access providers, who similarly are free to pursue lawful ways of creating new services, features, apps and value, and are likewise free to create any lawful business models to support those efforts.

Still, looking narrowly at end user freedom, nothing about ending common carrier regulation of internet access undermines the fundamental principle of access to all lawful internet-accessed applications. But not all services or apps using internet protocol are actually “internet” apps.

All networks might use internet protocol. But not all IP networks are part of the “internet” whose applications consumers have a right to use. Private networks (business networks of all types, cable TV services, carrier voice and messaging networks) might use IP, but are not necessarily part of the “internet” used by consumers.

In principle, that is why managed networks and business internet access is not covered by consumer “network neutrality” rules.

So network neutrality is complicated because there are several other principles and freedoms involved, and as always is the case, rights and freedoms can conflict.

And one right a network operator has is to manage network resources under conditions when network load is very high, since no network actually is built to support any conceivable amount of potential use.

Instead, networks are built to support “typical” or “typical peak” demand. And that means any network can become congested, on occasion.

So even if all agree that U.S. consumers have the right to use any lawful app, there are other rights held by others. The way those rights might be exercised is the issue.

Do app providers or access providers have the right to maintain quality of service for their apps? Yes. That is why content delivery networks exist, and why “managed services” are regulated differently than “internet” apps.

Beyond all that, other arguably distinct issues have fallen under the “neutrality” concept, even if, logically, they are distinct issues. Whether it is lawful to offer “no extra cost” features and access to some apps (zero rating) provides a clear example.

Some oppose zero rating of features, services and apps that have value for consumers, and are offered at no incremental cost. In some cases that has been applied to “Free Basics,” a program supplying no charge access to Facebook and other apps, even when a user has not paid-for internet access connection.

In other cases, some have objected to ISPs subsidizing use of features or apps as well. A few have objected to mobile ISPs offering free HBO, free Netflix or free music apps to their customers. Some have opposed any policies that allow mobile users to consume streaming video or music without incurring any usage on their data plans.

The point is that, beyond a basic set of expectations related to use of all lawful applications by consumers (with exceptions for network management and business services), a number of other issues have been seen as within the scope of network neutrality, even if such prohibitions tend to compromise “internet freedom” of other app or access providers.

So strong forms of network neutrality always involve the issue of “whose freedom is taken away.”

Even actual “blocking of apps” (something network neutrality prohibits) has been a standard tool for managing voice network congestion. That speaks to the issue of end user application freedom, which is broader than existed for voice.

Though most people who now use voice networks have never encountered it, use of voice networks was managed, under conditions of very-high load, by denying callers access. The recording “I’m sorry, all circuits are busy now, please try your call again later” used to be the signal that the network was under high load, and some incremental users were literally blocked from using the network.

That is a clear example of network management, and did involve literally blocking of a lawful app (talking on the telephone).

And every network operator arguably has the duty, not only the right, to manage the network under conditions of congestion, in order to preserve quality of service.

And it matters whose freedom is limited. Historically, there have been a few (literally two or three instances) where an internet service provider tried to block a lawful app, and those instances were immediately prohibited by the FCC.

In one instance, a  small internet service provider tried to block use of Skype, a lawful application in the United States, was promptly notified by the Federal Communications Commission that this practice was impermissible, and was promptly ended.

Comcast is the only large ISP to have engaged in efforts to block or manage lawful apps in the U.S. market (Bitcoin).

Fundamentally, it is the consumer right to use lawful applications which is the heart of the “freedom” policy. But app and access providers are not, for that reason, denied their own freedom to create.

If an app provider wants to create a separate, for-fee feature or service, it may. If an access provider wants to create faster tiers of service, it may. If an app or access provider wishes to subsidize use of some for-fee features, they may. None of those impinge consumer freedom to use all lawful apps.