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Ethical Analysis of Network Neutrality 

Ethical Analysis of Network Neutrality  
 

Author of this paper:
Adrian Crenshaw
Original Article:
Google and the Problem With 'Net Neutrality'
Author of original article:
Bret Swanson

http://online.wsj.com/article/SB20001424052748703628304574452951795911162.html  
 
 

Questions:

What is the dilemma(s)? 
 

      Is Network Neutrality needed for a level and fair playing field on the Internet? Does it stifle innovation? Are the cost allocations fair?  

      As we were asked to cover the topic more than the specific opinion piece in the Wall Street Journal, I think it would be useful to define Network Neutrality. The author of the article seems to be working from a slightly different definition than what I am use to, but whose definition should we follow? For the sake of this discussion I’ll use Tim Wu’s:

      “Network neutrality is best defined as a network design principle.   The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally. This allows the network to carry every form of information and support every kind of application.  The principle suggests that information networks are often more valuable when they are less specialized – when they are a platform for multiple uses, present and future. (For people who know more about network design, what is just described is similar to the "end-to-end" design principle).” 

      My choice of Mr. Wu is not arbitrary. Not only is he a professor at the Columbia Law School, he also helped establish the term Network Neutrality with his paper "Network Neutrality, Broadband Discrimination":

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=388863  

      From the proponents’ side: The end users and content providers are paying a set price for a set data rate (bits per second, abbreviated bps in all lower case most of the time). What they decide to do with it is up to them. 
 

      From the opponents’ side: Other companies are making money off of the bandwidth we supply, so it is only fair that we make some profit off of it as well. With the increase in high bandwidth applications we need to be able to tier service more so we can allocate it to new technologies and innovations. 

      This is further complicate by the fact that more than one Internet Service Provider is normally involved during most Internet communications. The way that the public Internet works is that different ISPs will “peer” with each other to route traffic. In many cases the peering is free under the deal of “you route my data for me, and I’ll route your data for you.” Pay arrangements between peers may also be arranged. The point is, for almost any Internet traffic, the data is going over more than one ISP’s network. Here is an example:  For me to get to a website at IUS, my data (in the form of IP packets) has to navigate thought Insight’s (my ISP) network, to Level3 in Chicago, to Quest communications to Gigapop.net, to the IU network and finally to IUS. Now, imagine if one of the ISPs in the middle, say Quest or Level3, told IU “Hey, pay us a little and we will make sure your packets get a higher priority when we route them.” A possible analogy might be to think of it as an unexpected toll road on the Information Super Highway. 

      Also worth considering is if the same rules should apply to all providers of networking services. To quote from Tim Wu’s FAQ again: 

        “(Note that this doesn't suggest every network has to be neutral to be useful. Discriminatory, private networks can be extremely useful for other purposes. What the principle suggests that there is such a thing as a neutral public network, which has a particular value that depends on its neutral nature).” 

      There seems to be a fundamental difference between a commercial common carrier like an ISP, and a more private network provider like a company or university network. 

      Sorry if this is somewhat technical, but there is no way to cover it correctly without a basic understanding of how the Internet works.  

Who are the stakeholders? 

  • Website and application providers (Google, anyone that publishes a website, peer to peer file sharing services, Voice over IP providers, anyone that provides a service that uses the Internet as a common carrier)
  • Internet Service Providers (telecoms, broadband providers, etc.)
  • End users of websites and applications that use the Internet

Who are the decision-makers? 

  • Internet Service Provider executives
  • Law makers
  • End users (assuming they have the choice to move to a less restrictive provider)
 What are the options/courses of action? 

    There are many, but let’s just consider these three: 

    1. Complete Network Neutrality where all bits on the network are treated equally, no matter their purpose or destination.
    2. Limited Network Neutrality with exceptions such as ISPs being able to block malicious traffic, business and public organizations being able to limit how the network they own is used, and perhaps some other exceptions that will need to be determined.
    1. Complete free market, where the ISPs can set their rules, and the customers can decide what ISP to obtain service from.
 Apply tests, articles, analysis, theories, standards 

      First, to start this section let me mention a slight bias of mine. I am generally a free market advocate, despite where I work. That and the fact that I’m working my way though Ayn Rand’s “Atlas Shrugged” makes me think that looking at the dilemmas from an Ethical Egoism Theory perspective might be insightful (not that I totally subscribe to Rand’s ideas). It is in the ISPs’ best interest to charge what they can, from who they can. It is in the end users’ best interest to get as fast and reliable a connection to the Internet as possible, for as cheap as possible. It is in an application provider’s best interest to keep costs down, while at the same time providing a good user experience to the end users so that they keep coming back. In a perfect free market the application providers and end users could merely decide to move to another ISP if they do not like the level of service they receive because of data discrimination. The market could sort things out. This may still be somewhat true for large application providers like Google who could find someone else to provide their bandwidth, but what about end users? In any given area, there are only so many options for broadband access to the Internet, and in some locations only one. This makes the market more of a monopoly or oligopoly than a completely open market, so the ISPs do have a power advantage that may be unfair.   

      Utilitarian Theory also seems to fall short. Providing the most good for the post people can lead to denying the property rights of the individual and cause them to pull back from providing when they see that it’s not in their best interest, or they see another option that’s better for them from an “opportunity costs” perspective. Self sacrifice only goes so far. Companies may not be individuals, but it would seem that they do have some property rights to the infrastructure that they create. They are under no obligation to provide limitless bandwidth to the masses, and if they did they may not be in business for very long. 

      The Contractarians and Justice theory is only one I feel that I can really apply without significantly stretching it. Justice is an incredibly abstract theory, but for the sake of these dilemmas it would seem that justice is done by the parties treating each other fairly and no one using their overwhelming power to take something from the other party without compensation. In this case, the ISPs do seem to be in the power position. For the contract side of the theory, the end users and application providers have already agreed to pay their respective ISPs a certain fee for a connection to the Internet. The various ISPs also have contracts amongst themselves on how fair peering can be done. If ISPs cannot provide the bandwidth they contracted for, then that is a problem for them to solve. Firms and individuals should not promise something that they can not deliver. 

      For the first ethical test I’ve decide to apply the Nash model to the problem. After going though it the first time it became apparent that it only really makes sense if you know which decision maker you are and already have some idea of which way you are leaning on the matter. For the sake of this model I decided to take the role of a government official leaning towards supporting Network Neutrality.   

1. Have you defined the problem accurately?

 I certainly hope that I have. As we can see from the forum posts and article, I don’t believe everyone is discussing the same thing when they say “Network Neutrality”.   I’ll be using Mr. Wu’s definition for the sake of this analysis, but even that leaves some ill-defined gray area.  

2. How would you define the problem if you stood on the other side of the fence? 

      This assumes I’m already taking sides. As I think I’m already leaning to the side of being a proponent of Network Neutrality, I will take the opposite view for step two. If I was a provider of Internet service I would want to be able to control my section of the Internet and my business model as I see fit. I would not want the government coming in to tell me what to do with my property or making rules about concepts they may not understand. Also, I use to be able to charge for phone calls (DSL providers) or TV (Cable providers), but now users are getting that for free from me over the Internet connection I provide them. My former business models seem to be breaking because of new uses for the Internet. 

3. How did this situation occur in the first place? 

      Only conjecture here, but it seems that ISPs started promising a certain level of service back when the main applications on the Internet were web and email. Web and email traffic amounts to very little bandwidth wise when compared to peer to peer file sharing, streaming video or VoIP (Voice over IP, Skype for example).

4. To whom and to what do you give your loyalty as a person and as a member of the corporation? 

      This does not seem applicable to the situation, at least the corporation part. If I’m a decision maker in the government then my loyalty is to the citizens, but I must keep in mind that the owners of the ISPs are citizens too and have certain rights. 

5. What is your intention in making this decision? 

      My intention is to come up with a fair solution to the problem. I need to come up with a solution that is fair to all parties. The end users need to be able to receive what they have contracted for, and the ISPs need to be able to make a fair profit on their infrastructure. There may be some exceptions to the principle of “a bit is a bit is a bit” and any law I work to pass needs to address these exceptions. 

6. How does this intention compare with the probable results? 

      The probable results are unknown as of yet, as is my decision that will lead to them. I imagine that once a law is passed, it will need to be amended for new situations. Some of this may be handled by case law, and some by directly amending the statutory law. 

7. Whom could your decision or action injure? 

      Depending on the decision, it could hurt any of the stakeholders I’ve listed above in the “Who are the stakeholders?” section. 

8. Can you discuss the problem with the affected parties before you make your decision? 

      Yes, in the form of congressional hearings, town hall meeting, referendums and other normal means of communication with government officials. 

9. Are you confident that your position will be as valid over a long period of time as it seems now? 

      With the changing pace of technology, no I can’t be 100% sure my position will always be valid. As stated in step six, I foresee needing adjustments to the law as time goes by and new problems are found. 

10. Could you disclose without qualm your decision or action to your boss, your CEO, the board of directors, your family, society as a whole? 

      Once I make the decision, yes I could. Not everyone will be happy, but no one is ever totally happy with most compromises.  

11. What is the symbolic potential of your action if understood? Misunderstood? 

      I think that if the true meaning of my actions and motives are perceived, then I would not expect any major backlash. A larger concern would be misunderstood motives and goals. If I side with the proponents of Network Neutrality I might be seen as anti-free market, if I side with the opponents I could be seen as anti-consumer and in the pocket of large corporations. 

12. Under what conditions would you allow exceptions to your stand? 

      I’ve not made a firm stand yet, but I’ve decided this model is most useful only when the decision maker has already made a decision (or is at least leaning towards one) and wants to check it afterwards. 

      Let’s see what happened when I apply the Blanchard and Peale model, but this time instead of assuming I’m a government leader I’ll assume I’m an executive at the ISP.   

1. Is it legal? 

      As of yet, yes, but I would have to watch out for contract violations. There will be more on this subject at the end of the paper.  

2. Is it balanced? 

      I’m not sure that it is. A decision to charge extra for some types of data based on my company’s personal profit seems like I may be abusing my power. Prioritizing network usage to provide for the best experience for customers may be ok, especially if it is to keep the network functioning properly and to protect the end user. 

3. How does it make me feel? 

      I’d feel bad if I promised a certain level of service, but then went back to the customer and had to say “except for this sort of traffic.”  

      Other models do not seem to fit as well as the above two, but I think I know where my conclusion is heading. 

Conclusion 

      There are cases where pure Network Neutrality would not be a good idea. I would not want a law that says all providers of Internet service must provide equally for all kinds of traffic. For example, in the past the university has throttled back peer to peer file sharing traffic so it did not overwhelm the network and cause critical network application problems (slow logons, slow web surfing for research, etc.). I would not want this ability limited by law. Much the same goes for private firms that provide access to the Internet for their employees. Also, I would not want an ISP’s ability to block malicious phishing sites or pages that install drive-by-malware. Having a blanket Network Neutrality seems problematic because there are times when it is just to discriminate against certain types of traffic.

      However, there are other times when discriminating against traffic may not be just. Blocking malware and phishing sites is not the same as an ISP charging their customers one fee for a certain number of bits per second, then charging another fee to content/application providers to ensure “quality of service” as their packets transverse the Internet. At the risk of hyperbole, the latter idea sounds too much like a protection racket for my personal comfort.  

      To balance the problems and desires of the stakeholder a solution of Limited Network Neutrality seems to be in order. As stated in the options section: 

      “Limited Network Neutrality with exceptions such as ISPs being able to block malicious traffic, business and public organizations being able to limit how the network they own is used, and perhaps some other exceptions that will need to be determined.” 

      Work will still need to be done to find valid exceptions to the general principle of Network Neutrality. 

Legal Considerations 

      There seems to be very little concrete law concerning Network Neutrality in the United States as of yet. Some laws have been proposed, but defeated. Two that are still in the works are the “Internet Freedom Preservation Act” and H.R.5353. If passed the legal landscape could change. 

      There still seems to be plenty of room for torts. Internet Service Providers may be able to go after subscribers because of terms of use violations depending on the services used and the wording of the terms of service. It’s also possible that end users may be able to go after their ISP if the throttling of connections to certain sites/applications limits the data rate (bits per second) that could be reached to levels below what advertisements or contracts promised.

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