Network Neutrality: Laissez-Faire Approach or Not?

By Wong, Rebecca; Garrie, Daniel B. | Rutgers Computer & Technology Law Journal, Summer 2008 | Go to article overview

Network Neutrality: Laissez-Faire Approach or Not?


Wong, Rebecca, Garrie, Daniel B., Rutgers Computer & Technology Law Journal


ABSTRACT

The paper discusses the subject of network neutrality from an American and European legal perspective. While acknowledging the plethora of literature on network neutrality, it argues that regulation in favor of network neutrality should not be confined within the U.S./European borders, but rather network neutrality should be addressed from a global perspective through the OECD/WTO. The article will begin by defining network neutrality before discussing the technology underpinning network neutrality. It will compare the different legal approaches adopted by Europe and the United States to the regulation of network neutrality. In Europe, there is an existing electronic communications regulatory framework, which can be used to address the network neutrality problem. In particular, this article will examine the Access and Interconnection Directive, arguing that further regulations at the European level are not necessary given the legal infrastructure. The main concerns arising from the United States' unilateral stance is whether it will cause a digital divide in the electronic communications market. Legislation in the area of network neutrality is not perceived as necessary in Europe. Any regulation at a European level would disrupt the existing electronic communications framework. In the United States, network neutrality appears to be the only viable legal path. Network technology violates the spirit of the U.S. Wiretap Law and several State specific privacy laws. The article will conclude that the United States' stance to adopt network neutrality legislation will cause a seismic shift in the way we view technology.

... Analysis shows that calls for network neutrality regulation are justified: In the absence of network neutrality regulation, there is a real threat that network providers will discriminate against independent producers of applications, content or portals or exclude them from their network. This threat reduces the amount of innovation in the markets for applications, content and portals at significant costs to society.

Van Schewick, 2005. (1)

There is no indication that network operators have any plans to gather and store personally identifiable information at the router level but policy makers should be aware that the widespread adoption of packet shaping technologies at least gives operators the ability to flag packets based on the payload (contents) of the packet and the IP address of the user. This could, in turn, raise fears that data could be easily processed for purposes unrelated to traffic routing. The privacy issues may be complex under a multi-tiered Internet structure and could warrant particular attention by privacy specialists.

OECD, Internet Traffic Prioritisation: an overview 2007. (2)

I. INTRODUCTION

While network neutrality has been the subject of heated debate in the United States, the topic has received far less attention on a global scale. In this paper, the authors explore network neutrality from a European and U.S. standpoint with particular focus on the international implications arising from the unilateral stance adopted by the United States in legislating on network neutrality. The arguments in favor of network neutrality regulation should not be confined to the United States, as they apply to other nations as well. In this paper, the authors address some of the arguments advanced in favor of network neutrality including consumer protection and the need to prevent companies and countries from blocking their network services to consumers. Is it simply a power struggle between the applications and content providers fighting to use the same network and determine who governs? Some of these questions have already been debated by legal scholars such as Wu and Yoo. (3) We will, however, explore the imbalance that may be created by network neutrality legislation introduced in the U.S. in preventing essential services such as emergency responses, 911 calls, and VoIP connections from being efficiently delivered because of the potential costs that may apply. …

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