Only Connect 1

I’ve posted a draft of my latest law review article, Only Connect to the SSRN archive. Comments are welcome.

My claim is that there are two types of rules for communications networks: interconnection rules and non-discrimination rules. The distinction has never been fully appreciated, even though regulators have imposed both requirements many times. Non-discrimination questions predominate today, but in reality, the central challenge of our era of digital convergence is interconnection.

Both sides of the network neutrality debate are therefore mistaken. I share the concerns of network neutrality advocates that broadband network operators will constrain applications and services on their networks, thereby throttling innovation. However, I’m skeptical the remedy they propose — non-discrimination safeguards — will work. A renewed emphasis on interconnection could address the primary network neutrality concerns, and also potentially avoid a disastrous balkanization of the Internet, which otherwise looms as a real possibility.

These are important, complicated issues, and I think the current battle in Washington fails to address some essential points. Again, I welcome feedback and suggestions.

One comment on “Only Connect

  1. Uncle Mike Feb 28,2007 8:47 pm

    Thanks Kevin. I agree with you. My simple parsing the net neutrality issue goes like this:

    There are lots of people throwing around ideas of what they think Net
    > Neutrality is. For some, it is a convenient hook for other unrelated concepts
    > like free speech and open source software. For many, it is a crutch for
    > concepts like the ‘gift economy’ (free as in free beer) or various
    > libertarian/neocon ideas (Esther Dyson stating in the WSJ that the Internet
    > has always been unregulated.)
    >
    > Its obvious that
    > there is quite a bit of loose talk going on.
    >
    > I can offer what the term means in the world of law and policy, where it has
    > been adopted as a legal or policy regulatory regime.
    >
    > Net Neutrality is short for “Network Neutrality”. It is a term that is
    > intended to apply to all networks, not just the Internet. Network Neutrality
    > means that ALL networks must be operated on neutrality principles. Cable,
    > satellite, telecom, data, leased data, video, etc.
    >
    > There are three neutrality principles. They are 1) non-discrimination, 2)
    > interconnection, and 3) access.
    >
    > 1) Non-discrimination means that all bits are treated the same by the network
    > operator, including its own bits (bit parity). In the convergent environment
    > all data is ‘just bits.’The network operator cannot discriminate against (or
    > in favor of) any bits/content/traffic over the network, except as required to
    > protect the security and quality of the network. For example, a network
    > operator could, if it was possible, filter out DOS attacks, computer viruses,
    > or spam.
    >
    > This is simplistic, but that’s my purpose. I wanted to give a very concise
    > definition. Obviously there are examples that challenge the paradigm (SIP,
    > SPAM), but the principle remains the same.
    >
    > 2) Interconnection means that any network can connect to any other network and
    > move traffic over and between the two networks, at reasonable
    > non-discriminatory rates. Without interconnection there is no neutrality,
    > because there is no network. There must be a ‘right of interconnection’ so
    > that a network operator knows that it can get its traffic carried on rival
    > networks.
    >
    > Neutrality means nothing if there is no way to know that you can send traffic
    > to end users that terminate on another network. For example, someone sending
    > traffic on a telecom network must be able to know that they can send traffic
    > to an end user on the cable operator’s network.
    >
    > This resembles common carriage. It would make every network operator very
    > similar to a common carrier as to the network operations, only.
    >
    > 3) Access means that any end user can send traffic to any other end user,
    > without discrimination or interference. Don’t worry about the
    > non-discrimination stuff right now. The important principle is being able to
    > reach an end user, emphasis on the ‘end’. This is a consumer-oriented
    > restatement of Prof. Lessig’s ‘end-to-end’ principle.
    >
    > End users could be individuals, but they are also devices and even other
    > networks. For example, a modem must be able to speak with another device at
    > the other end of the network. An individual must be able to email to another
    > individual on another network, but it also applies to voice, video, or files.
    > Access also applies to video networks (at reasonable fees), telecom (for
    > competition in local and long distance and for services like voicemail, for
    > instance), and data (so that any router or modem can be attached, like a wi-fi
    > router).
    >
    > That’s all there is to network neutrality. We can discuss how to present this
    > definition, but this is the actual, real-world, working definition that has
    > been enacted into law in the other developed countries.
    >
    > Michael Weisman, JD, LLM

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