The Internet Ecosystem: The Potential for Discrimination

I. THE PREMISE BEHIND NETWORK NEUTRALITY II. RISKS TO THE INTERNET ECOSYSTEM A. Access to the Web--the Browser B. Rich Internet Applications, Video, and the New Content Companies C. Naming and Information Discovery D. Content Distribution and Cloud Computing--the Invisible Ecosystem III. THE RISKS OF REGULATION IN THE INTERNET ECOSYSTEM A. Insensible Neutrality B. Fostering a Competitive Ecosystem C. Regulating Legal Content D. Curtailing Innovation in Network Management E. Technology on Internet Time IV. MAINTAINING A VIBRANT INTERNET ECOSYSTEM A. Measure and Report B. Maintain Competitive Applications, Content, and Services C. Maintain Competitive Networks with Transparency and Clarity D. Keep Ahead of the Technology V. REGULATION SHOULD BE A PROCESS, NOT A PRODUCT I. THE PREMISE BEHIND NETWORK NEUTRALITY The premise behind the current debate in network neutrality was articulated in an FCC policy statement adopted in August 2005 (1) that stated four goals for the Internet: 1. "[C]onsumers are entitled to access the lawful ... content of their choice." (2) 2. "[C]onsumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement." (3) 3. "[C]onsumers are entitled to connect their choice of legal devices that do not harm the network." (4) 4. "[C]onsumers are entitled to competition between network providers, application and service providers, and content providers." (5) Rules that have been proposed since would extend these four core principles by adding two additional rules: (6) 1. A provider of broadband Internet access service must "treat lawful content, applications, and services in a nondiscriminatory manner." (7) 2. A provider of broadband Internet access service must "disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking." (8) Broadly speaking, participants in the network neutrality debate use the same term to conflate two issues--accessing content of their choice and, more narrowly, enabling the development of a competitive environment for services, applications, and content providers by maintaining "neutral" access to the last link for consumers or the "public" Internet (the "access network"). The two primary concerns have been that access network providers would provide preferential treatment to specific uses of the network and may go so far as to block certain kinds of applications.9 To support this concern, proponents of regulation point to a small number of documented cases where ISPs have blocked specific services (VOIP (10) and file sharing (11)). There is concern about a lack of transparency in network management and how that might diminish the opportunity for innovation in the Internet or unfairly limit competition. But the ability to limit access to Internet applications is not restricted to access networks. Such restrictions can be imposed by many components used to access Internet content, such as the browser and services or applications within the Internet. Likewise, there are many ways to enable preferential access. In a 2007 article, this Author, along with Douglas Sicker, discussed aspects of current Internet access network designs that can lead to higher barriers for innovation and new services or can allow subtle forms of preferential network access. (12) We specifically focused on asymmetric access links and content distribution networks (CDNs). Asymmetric access networks make it more difficult for consumers to "self-publish," and commercial content distribution networks (13) can effectively provide "preferential access" to content provisioned on a CDN located within an ISP's network without actually violating "neutral" access network policies. …