Net Neutrality or Not Net Neutrality? Is that really the question?

The European Parliament is as exciting as a cup final at the moment, at least if you are at all interested in digital issues (and if you read Netopia, I will assume you are). Thursday will see a close vote on network neutrality. The suspense is that no one can say which side will win. The net neutrality proponents say it is the key to an “open” internet, the opponents (and telecoms) say it’s a bad idea and services must pay for capacity just like subscribers. But what if it is so difficult to decide because both options are bad?

In theory, network neutrality means that no data packets should be discriminated. Most also say prioritization is wrong. Harmful code, like viruses, must be stopped of course. And spam. And some forms of illegal traffic (= child pornography). So already there are a lot of exceptions to this concept. But the main problem with this idea is something else. The independent intermediary exists only in theory. In real life intermediaries have all sorts of vested interests, such as telecoms operating content services or internet platforms setting up their own networks. Even if network neutrality were a realistic policy, that leaves no room for internet governance – at least not via democratic means. Instead, it is for the dominant online players to make the rules, as the regulator has given away its keys. That track record is not great, when the rights of users collide with the share-holders interests, most companies will be loyal to its owners. (Evgeny Morozov wrote a great book about this phenomenon.) Last year, I wrote an opinion in the European Voice on the “mirage of net neutrality”.

Now, the telecoms position is equally problematic. Of course, any business would like to charge for the same product several times, but none do it as effectively as the ISPs. They charge subscribers for broadband access with a premium for better bandwidth. They also charge extra for non-discrimination of services like voice-over-IP that compete with their own telephone services. They charge the back end services for access, plus they want to charge a premium for particularly popular (capacity-intensive) services. Plus they develop first party content services to compete with the third parties they want to charge extra. (and in the case of entertainment services, bear in mind that “bittorrent is the killer app for broadband”). In the big business logic of the telecom operators, a start-up service can get by without paying for priority in the early days, with the opportunity to buy quality once it is successful. Not really convincing for a start-up and where does such a policy lead down the line? Is even more powerful telecoms really what the internet needs? At least it is safe to say that this position has killed the idea of mere conduit once and for all.

In the former case, pro-network neutrality, independent oversight of exceptions are necessary. In the latter case, contra-network neutrality, a strict online competition authority is essential. So both sides point to the same conclusion: democratic governance is the solution. Network neutrality is a negatively defined freedom: the absence of regulation is supposed to guarantee a level playing field. We would never accept such a thinking in any other part of society. Instead we develop institutions to look after fundamental rights. There is no reason the internet should be any different. What MEP will be the first to suggest a third position, where fundamental rights and fair competition is guaranteed by an independent authority under democratic control, tasked to regulate the telecoms not only in terms of competition between the access providers, but also to guarantee a level playing field for services, fair business practices toward subscribers, rules on what sort of content should be blocked or filtered, making sure surveillance does not happen and ensuring transparency of the networks? More democracy, not less, is the way forward.