The nuances of the net neutrality debate

The concept of network neutrality has already been discussed in this blog, but involves certain nuances that are usually neglected in more tabloid-style debates. It is important to reflect on this, because the answers and concepts involved are not merely dichotomous, as one would expect in a simple yes/no debate on the implementation of net neutrality in the most diverse legal systems in the world. So what are these variants?

First and foremost: is there a need to regulate net neutrality?

Isonomy in the treatment of online data packages is an idea that began to be envisaged in the 1990s, with the popularization of network access, but also with the beginning of conflicts and concerns in this field of research. According to Lawrence Lessig, the architecture of the network would be one of the essential elements for the conformation of Law referring to the internet, since who writes the codes and draws the infrastructure of the network is also shaping reality. From this finding, authors like Tim Wu refined this thinking and formulated theories that connection providers would be true gatekeepers of data traffic. That is, they would have the ability to control everything that reaches the end users since it would pass through this “funnel”.

This generates concerns since any form of content control and discrimination also has the potential to alter perceptions, to inhibit freedom of expression, to generate economic and competitive bubbles, to discourage innovation, among other aspects. However, this same provider also performs essential security functions in this control, for example filtering unwanted content by users.

Because the internet has a regenerative capacity and can be used for different purposes, depending on the users’ wishes and abilities, it is important that this freedom and security be maintained. For Pedro Ramos, if we want the internet to be used as an instrument of change and social development, this choice about ideal regulation must necessarily be part of the debates about network governance, especially regarding user autonomy to do with the internet what he considers appropriate. But how to do this in a net neutrality environment? Was she absolute? Relative? Regulation, whether ex ante or ex post, will determine these parameters from a more operational perspective.

It is possible to regulate the architecture of the Internet, with respect to net neutrality, without necessarily falling into the fallacy of an argument simply “pro” or “against” its implementation. There are several forms of discrimination: blocking which application providers; change in navigation speed, whether positive or negative; and discrimination by price, also negatively or positively.

Certainly, the set of costs and benefits of an environment without net neutrality, or of a neutrality with exceptions, can vary between traffic, connection, application, and user providers. Even the government is a sector interested in shaping these costs and benefits, since it is in their interest to maintain incentives for innovation, for example. Blocking Voice over Internet Protocol (VoIP) services, for example, can be beneficial for connection providers who are also telecommunication companies, but bad for application providers, users and an innovation environment on the shallower layer of the internet.

It is interesting to note, too, that telecommunication services tend to have higher profit margins than internet application services. This explains, in part, the efforts of telecommunication companies in trying to keep their users through exceptions to network neutrality. On the other hand, it makes sense to prioritize data traffic from applications that have less latency tolerance, such as streaming, on demand, VoiP, and DNS services. Bitorrents, backups and software downloads have greater tolerance to this latency, so they could be delayed.

When the debate is placed in this way, between services that tolerate latency and services that do not tolerate latency, the interlocutor is forced to make a choice between “yes” or “no”. But is it really necessary? Does this prioritization need to be active? In other words, is there a reasonable logic to justify this proposal of internet band discrimination, especially in fixed connections? There is little evidence to substantiate this dichotomy based on infrastructure criteria, although telecommunication companies often use this argumentative logic

Neutrality with exceptions: but which ones?

Creating a regime of exceptions, as was the Brazilian response by means of Decree No. 8,771, of 2016, may be a much more reasonable and pragmatic medium for the treatment of network neutrality. After successive public consultations and a troubled political moment in 2016, the following exceptions were chosen when the Decree was enacted, in its article 4th, by technical requirements indispensable to the adequate provision of services and applications; or by the prioritization of emergency services.

The Decree also makes express reference to the way of conducting these exceptions to network neutrality, and it is necessary to comply with all the requirements set forth in article 9, § 2nd, of the Brazilian Internet Bill of Rights, which are: to refrain from causing harm to users; act with proportionality, transparency and isonomy; inform previously in a transparent, clear and sufficiently descriptive way to its users about the traffic management and mitigation practices adopted, including those related to network security; and offer services on non-discriminatory commercial terms and refrain from conducting anti-competitive conduct.

In other words, the practice of discriminating data traffic in Brazil was regulated, taking into account a compromise between legal and freedom criteria for the application of traffic management. Countries such as Chile, Mexico, Japan, Colombia, the Netherlands and the United States sought to regulate ex ante network neutrality in their internal legislations, taking into account their economic objectives, social values and cultural priorities.

False Polarization

The conclusion reached by this argumentation is that interests are extremely diverse when the topic on the table is network neutrality. Stakeholders do not necessarily divide themselves between “for” and “against” non-discrimination of data, because their social and market actions also vary and are complex, generating a contextual interdependence not polarized in this simplistic way.

* This text was elaborated from the studies of the author and lectures of the Escola Jurídica de Governança da Internet, promoted by Comitê Gestor da Internet and ITS – Rio, in Brasília, in 2017. In particular, it is worth mentioning the relevance of Pedro Ramos‘ work to deepen the topic of network neutrality.