A Discourse-Principle Approach to Network Neutrality: A Model Framework and its Application

The protection of network neutrality (“NN”) is a crucial challenge for current information societies. The enshrinement of this all-important principle into policy and legislation appears necessary to foster an open Internet where users are active participants and not mere consumers. Indeed, NN empowers Internet users allowing them not only to freely receive and impart information but also to freely receive and impart innovation. By contrast, in a non-neutral Internet, the power to decide which kind of innovation and information should be accessed and distributed by end-users, would primarily lie with Internet service providers. Such centralised control over Internet traffic flows has the potential to determine nefarious consequences on media pluralism as well as on the circulation of innovation. Therefore, the extent to which the NN principle is safeguarded and implemented has a direct impact on the full enjoyment on human rights online and, therefore, also on the level of accomplishment of democracy and self-determination in the various information societies.

One of the main purposes of the Dynamic Coalition on Network Neutrality (DC NN) was to elaborate a model legal framework on network neutrality that would enable innovation and be consistent with international human-rights standards, while also being ‘scalable’, which in this context means being easily implemented and applied across different legal systems.  To come to such a “Model Framework”, the DC NN has adopted a process, grounded on openness, inclusion, transparency and participation. This article will first briefly describe the Habermassian process that the DC NN has tried to put in place and will subsequently highlight the result of such process and its concrete application, whose only aim is to protect NN in an efficient fashion. Subsequently the Model Framework will be presented and its application elaborated.

A Discourse-Principle Approach

According to Jurgen Habermas’ discourse principle, the only norms that one can claim to be valid are those meeting – or having the possibility to meet – the approval of all the participants in a practical discourse. Hence, Habermas argues that norms’ legitimacy should not be based on their “formal-semantic properties” but should be rather guaranteed by the formal conditions that allow “rational will formation” through participation to this discourse[1].

However, the philosopher acknowledges that, in spite of how sophisticated can be the efforts to achieve a consensual rule on a purely rational basis, human beings’ lack of “perfect knowledge” inexorably leaves them in a state of uncertainty regarding whether the rule they elaborate has truly been crafted according to the discourse principle. For this reason the most suitable solution – or the one with the least hindrance, depending on the point of view – is to undertake a participatory process through which the elaboration of the rule is legitimised by participants’ free contribution on an equal basis, in order to put in place “a cooperative search for truth, where nothing coerces anyone except the force of the [most persuasive]argument”[2].

To this latter extent Michael Froomkin has stressed that the achievement of the Habermasian practical discourse depends on how closely the participants to this collaborative effort manage to approach “an ideal in which (1) all voices in any way relevant get a hearing, (2) the best arguments available to us given our present state of knowledge are brought to bear, and (3) only the unforced force of the better argument determines the ‘yes’ and ‘no’ responses of the participants”[3]. However, it is important to note that only in an ideal – and particularly difficult to realise – situation it is possible to completely fulfil the aforementioned conditions.  Therefore, considering the practical difficulties to realise an ideal practical discourse, “something less than the “best” might be also be a practical discourse”[4].

The Internet-standards elaboration process developed by Internet standardisation bodies, such as the Internet Engineering Task Force (IETF), can be argued to form such a near-fulfilment of the practical-discourse conditions. This process is open to every Internet user and based on the collaborative development of Requests for Comments through a transparent e-mail interaction. The purpose of this continuous email exchange is to facilitate the participatory process that leads to the crystallisation of “rough consensus” through the confrontation of rational arguments. In this way, the proposed standards are commented and refined in order to become draft-standards, ready to be adopted uniquely by reason of their rational efficiency[5].

A Net Neutrality Policy-Blueprint

It should be acknowledged that the participatory process put in place though open, inclusive and transparent email interaction has the potential to make the Habermasian practical discourse a (close) reality. Indeed, although mailing-list debates have obvious benefits and disadvantages[6], it cannot be denied that they can be utilised as a true debate-arenas, aimed at facilitating a “rational-will formation” process, which may be a close approximation of the Habermasian practical discourse.

Such a process is particularly beneficial to highlight the potential implications of Internet-related policy-recommendations through an open dialogue, thus allowing the elaboration of “scalable and innovation-enabling”[7] policies.  The Dynamic Coalition on Network Neutrality (DC NN) has therefore been established[8] in order to transpose the practical-discourse approach that characterises Internet standardisation to network neutrality policy-making. Indeed, the structure of the DC NN has intended to reproduce the self-organised, bottom-up and collaborative environment characterising Internet-standardisation bodies. Particularly, the creation of an open, inclusive and transparent discussion-platform has been considered as a fundamental precondition in order to foster the confrontation of rational arguments that is needed to elaborate efficient solutions to safeguard network neutrality. Indeed, both the technical complexity of the NN debate and the large spectrum of stakeholders, which are involved in the direct and indirect provision of Internet communications, impose to analyse this all-important issue through a participatory and multi-stakeholder process.

The DC NN has tried to establish such a process and the Model Framework on Network Neutrality has been elaborated through exclusive e-mail interaction over a two-month period. The Dynamic Coalition mailing-list has been advertised on several websites and opened to any interested stakeholder. Mailing-list’s participants[9] are formally equal, although they can be categorised in 5 stakeholders groups: governmental entities; private-sector entities; non-governmental organisations; technical community; and academia. Mailing-list’s discussions have been moderated by a coordinator and one “on-line vote” has been called for in order to solve a terminology controversy[10]. Lastly, the mailing-list archives are freely accessible to every Internet-user.

The first “draft model” has been elaborated utilising elements from two model laws, submitted by Luca Belli and Matthijs van Bergen to the Multi-Stakeholder Dialogue on Network Neutrality and Human Rights, a conference organised under the auspices of the Council of Europe, on 29-30 May 2013. Subsequently, two comment periods – the first one lasting 30 days and the second one 10 – have been foreseen in order to reply to a “Request for Comments” on the draft model and a third, informal comment-period has been established to allow final remarks and objections.

The Model Framework on Network Neutrality is therefore the collaborative product of this cooperative interaction and should be considered as a “policy blueprint” providing guidance to national legislators on how to properly safeguard network neutrality. The adoption of this model framework should be undertaken on a merely voluntary basis and exclusively driven by the efficiency of this instrument.

 

The Model Framework on Network Neutrality and its Application

The main goal of the Model Framework is to help clarifying the NN debate and to present a way forward. To this end, the first article of the Model aims at bridging a dialectic lacuna, by precisely defining the network neutrality principle. Consequently, the Model delineates the limits of such a crucial principle as well as the criteria according to which it should be applied. Furthermore, the Model suggests an enforcement mechanism which seems essential in order to implement network neutrality in an appropriate fashion.

 

 Model Framework on Network Neutrality

1) Network neutrality is the principle according to which Internet traffic shall be treated equally, without discrimination, restriction or interference regardless of its sender, recipient, type or content, so that Internet users’ freedom of choice is not restricted by favouring or disfavouring the transmission of Internet traffic associated with particular content, services, applications, or devices.

2) In accordance with the network neutrality principle, Internet service providers shall refrain from discriminating, restricting, or otherwise interfering with the transmission of Internet traffic, unless such interference is strictly necessary and proportionate to:

a)      give effect to a legislative provision or court order;

b)      preserve the integrity and security of the network, services and the Internet users’ terminal  equipment;

c)       prevent the transmission of unsolicited communications for direct marketing purposes to Internet users who have given their prior consent to such restrictive measures;

d)      comply with an explicit request from the subscriber, provided that this request is given freely and is not incentivised by the Internet service provider or its commercial partner;

e)      mitigate the effects of temporary and exceptional network congestion, primarily by means of application-agnostic measures or, when these measures do not prove efficient, by means of application-specific measures.

3) The network neutrality principle shall apply to all Internet access services and Internet transit services offered by ISPs, regardless of the underlying technology used to transmit signals.

4) The network neutrality principle need not apply to specialised services. Internet service providers should be allowed to offer specialised services in addition to Internet access service, provided that such offerings are not to the detriment of Internet access services, or their performance, affordability, or quality. Offerings to deliver specialised services should be provided on a non-discriminatory basis and their adoption by Internet users should be voluntary.

5) Subscribers of Internet access service have the right to receive and use a public and globally unique Internet address.

6) Any techniques to inspect or analyse Internet traffic shall be in accordance with privacy and data protection legislation. By default, such techniques should only examine header information. The use of any technique which inspects or analyses the content of communications should be reviewed by the relevant national data protection authority to assess compliance with the applicable privacy and data protection obligations.

7) Internet service providers shall provide intelligible and transparent information with regard to their traffic management practices and usage polices, notably with regard to the coexistence of Internet access service and specialised services. When network capacity is shared between Internet access services and specialised services, the criteria whereby network capacity is shared, shall be clearly stated.

8) The competent national regulatory authority shall:

a)      be mandated to regularly monitor and report on Internet traffic management practices and usage polices, in order to ensure network neutrality, evaluate the potential impact of the aforementioned practices and policies on fundamental rights, ensure the provision of a sufficient quality of service and the allocation of a satisfactory level of network capacity to the Internet. Reporting should be done in an open and transparent fashion and reports shall be made freely available to the public;

b)      put in place appropriate, clear, open and efficient procedures aimed at addressing network neutrality complaints. To this end, all Internet users shall be entitled to make use of such complaint procedures in front of the relevant authority;

c)       respond to the complaints within a reasonable time and be able to use necessary measures in order to sanction the breach of the network neutrality principle.

This authority must have the necessary resources to undertake the aforementioned duties in a timely and effective manner.

9) Definitions

a)      The “Internet” is the publicly accessible electronic communications network of networks that use the Internet Protocol for communication with endpoints reachable, directly or through network address translation, via a globally unique Internet address.

b)      The expression “Internet service provider” refers to any legal person that offers Internet access service to the public or Internet transit service to another ISP.

c)       The expression “Internet access service” refers to a publicly available electronic communications service that provides connectivity to the Internet, and thereby provides the ability to the subscriber or Internet user to receive and impart data from and to the Internet, irrespective of the underlying technology used to transmit signals.

d)      The expression “Internet transit service” refers to the electronic communications service that provides Internet connectivity between Internet service providers.

e)      The expression “Internet traffic” refers to any flow of data packets transmitted through the Internet, regardless of the application or device that generated it.

f)       The expression “specialised services” refers to electronic communications services that are provided and operated within closed electronic communications networks using the Internet Protocol, but not being part of the Internet. The expression “closed electronic communications networks” refers to networks that rely on strict admission control.

g)      The expression “application-agnostic” refers to Internet traffic management practices, measures and techniques that do not depend on the characteristics of specific applications, content, services, devices and uses.

h)      The expression “subscriber” refers to the natural or legal person who has entered into an agreement with an Internet service provider to receive Internet access service.

i)        The expression “Internet user” refers to the natural or legal person who is using Internet access service, and in that capacity has the freedom to impart and receive information, and to use or offer applications and services through devices of their choice. The Internet user may be the subscriber, or any person to whom the subscriber has granted the right to use the Internet access service s/he receives. Any legal person offering content and/or applications on the Internet is also an Internet user.

 

 

The Application of the Model Framework

Article 1 of the Model first defines NN and subsequently explains the aim of this principle. NN is essentially a non-discrimination principle which applies to the transmission of Internet traffic.

According to this principle, all Internet traffic is to be transmitted equally and without discrimination, restriction or interference, regardless of the type or content of the traffic and regardless of the identity of its sender or recipient. Therefore, it may be argued that NN plays a pivotal role in enhancing freedom of choice, freedom of expression, privacy and self-determination of all Internet users, while fostering  media pluralism and economic innovation.[11]

In accordance with the network neutrality principle, ISPs must manage Internet traffic in a non-discriminatory fashion. A prime example of a non-discriminatory transmission mode is first-in, first-out, or “FIFO” transmission of Internet packets. Besides FIFO there is a multitude of other queuing and transmission policies that do not depend on the characteristics of specific applications, content, services, devices and uses. Net neutrality prescribes that ISPs must in principle apply only such “application-agnostic”[12] forms of Internet traffic management (“ITM”), while any application-specific discrimination, restriction or interference is only allowed if strictly necessary for and proportionate to any of the legitimate aims listed in article 2. The application of article 2 should be put in place through the following ‘five-step test’:

1)  It should first be established whether or not an interference, restriction or discrimination has occurred. Any ITM that is not application-agnostic should be deemed as a discrimination, restriction or interference (in short: interference);

2) the second step is to determine whether the interference in question is prescribed by the agreement between the ISP and its subscriber. If the agreement does not provide a sufficiently foreseeable ground for the interference, it is illegal. If the interference is prescribed by the agreement, we proceed to step three;

3) the third step consists in establishing whether the interference was applied for a legitimate aim. The purpose of the ITM measure must correspond with at least one of the legitimate aims, which are listed exhaustively in article 2, indents a to e.

4) the fourth step consists in determining if the measure is necessary in an open, end-to-end network. Can’t the problem be properly solved at the edges? If there is no valid reason to implement a centralised measure to solve a specific problem, then the measure is not consistent with the network neutrality principle.

5) the fifth step consists in assessing the proportionality of the ITM measure. Notably, it should be evaluated whether the benefit brought by the specific measure exceeds its possible disadvantages and whether it is possible to utilise a different, less discriminatory and possibly more efficient  measure in order to achieve the same purpose.

Similar to the way the European Court of Human Rights (“ECtHR”) leaves a wider or smaller margin of appreciation to member states in certain situations, national courts and regulatory authorities can leave a wider or smaller margin for ISPs to decide which ITM measures are necessary and proportionate. When competition is strong, switching is easy and transparency is optimal, courts and regulators can leave a wider margin of appreciation to ISPs. When the technical community is divided with regard to the discriminatory nature of a particular ITM measure, or about its efficiency or proportionality, the margin of appreciation can be left wider as well.[13]

Article 2 delineates a limited number of legitimate aims for interferences. In accordance with indent a, an ISP is permitted to comply with a specific legislative provision or a court order prescribing an interference.

Indent b provides that an interference may be justified if necessary to safeguard the integrity and security of the network, services and Internet users’ terminal equipment. As an example, the blocking of (D)DOS traffic and malware can be mentioned.

Furthermore, it is important to note that in many European jurisdictions –at least in those within the EU – it is forbidden to send unsolicited electronic communications for direct marketing purposes, commonly referred to as “spam”.[14] Although the problem of spam can also be dealt with at the ‘edge’, e.g. by filtering at the mail server, it may be considered wasteful if all spam traffic, which is said to constitute about 70-80 % of all e-mail traffic[15], is first delivered to the end-point, taking up network capacity in the process, only to be discarded immediately after delivery. Therefore, filtering illegal spam at the network level forms a legitimate purpose. However, since filtering techniques always carry a risk of over-blocking, the model requires the consent of the receiving subscriber in order to put in place spam filtering at the network level (which may be less granular and less precise, compared with application-level filtering). In addition, although consent of the sending subscriber to filter outgoing spam is not necessary (indeed, it seems unlikely that a spammer would ever express it), article 2 indent c  requires that the least restrictive and least discriminatory method that is still sufficiently effective, is used.

If a subscriber wishes that certain application-specific ITM measures be taken by the ISP, the ISP may comply with such request, in accordance with indent d. For example, this may involve Internet access services where the ISP is explicitly requested to filter out material that the subscriber objects to for religious reasons, or that is not deemed as suitable for children. Such filtering measures can also be performed at the edges, but if the Internet user prefers that the ISP takes care of this task, and the ISP offers this functionality, this should be allowed. It is  also conceivable that certain Internet users may wish to prioritise traffic relating to certain favourite applications.  The implementation of such an option in a way that leaves the Internet user in sufficiently direct control over what applications get priority and when – i.e. not by picking a plan that is set for the entire contract term – would be in accordance with the model. ISPs and their commercial partners may not, however, provide any monetary or other incentives (such as discounts or free items) for Internet users to accept or request discriminatory ITM measures.

Lastly, it should be noted that, in the event of temporary and exceptional network congestion, it may be necessary to implement certain application-specific measures, such as prioritising traffic pertaining to real-time applications that are particularly sensitive to delay and jitter, such as (video) calling or gaming, over less time-sensitive applications, such as file sharing and e-mail. Indent e of article 2 leaves room for such interferences, but as it explicitly underlines: application-agnostic measures should be used if they are sufficiently effective in achieving the legitimate aim , whereas application-specific measures can only be justified if they prove more effective and/or efficient than any available application-agnostic alternatives.

The network neutrality principle should apply to both wired and wireless forms of Internet access services, regardless of the technology used to transmit signals (e.g. Ethernet, WiFi, or HDPA).

Importantly, article 2 gives no room for ‘pay-for-priority’ business models on the Internet. The mere fact that some entities may be willing to pay ISPs for implementing certain discriminations, restrictions or interferences, such as prioritising, throttling or blocking specific Internet traffic, does not constitute a legitimate aim for such interferences.  However, such business models are not banned in toto, for they may be implemented through specialised services. Indeed, in accordance with article 4, the network neutrality principle need not apply to specialised services, which may utilise the Internet Protocol, but which are offered on closed networks which are not part of the Internet and utilise strict access control. Examples of such services include certain IP-TV and VoIP services, often offered as a part of a ‘triple play’ package, where the subscriber of Internet access service also receives a ‘set-top’ box and digital home phones. We can also imagine certain e-health applications and other types of applications that have particularly high security requirements (a good rule of thumb is that anything connected to the Internet can be “hacked”), a high sensitivity to latency and jitter and a sufficiently high value to justify investments in closed networks providing specialised services besides the open Internet. In the future we may expect to see less IP-TV and VoIP services offered as specialised services, because many Internet access services now offer sufficient bandwidth to enable on demand real-time streaming of 1080p resolution HD content (content distribution networks are helpful here as well), and Skype, Vonage and other Internet-based VoIP-applications normally have better sound quality than PSTN phone lines, while their quality can be considered comparable to specialised VoIP-services, unless they are being blocked or throttled, or if there is an exceptionally high level of congestion.

However, specialised services must not be offered in such a way that would degrade the quality of Internet access services below satisfactory levels and, if capacity is shared between Internet access services and specialised services, the ISP must clearly state this and the criteria whereby this sharing takes place. To this extent, regulatory authorities have the ability to set minimum requirements for the quality of Internet access services.

In accordance with article 5 of the Model, all Internet users have the right to a public IP address. A public IP address enables Internet users to be more than passive consumers of online content and applications, but to be equal participants in the exchange of ideas, thoughts, information, services and applications online. This requirement can be expected to speed up adoption of IPv6 and reduce adoption of carrier-grade NAT, which may determine a variety of problems such as transforming ‘big routers in big firewalls’[16].

Article 6 requires that any technique to inspect or analyse Internet traffic shall be limited to header information by default, and be reviewed by the relevant data protection authority if the contents of traffic are inspected or analysed.

Article 7 poses an obligation on ISPs to provide clear information about their traffic management policies. In order to provide the required transparency and information for users to base their choices for particular Internet access services on, ISPs must advertise the minimum bandwidth allocated to the Internet access service of the subscriber during the peak congestion levels on the ISPs network. This may be in addition to the theoretical maximum bandwidth levels which most ISPs currently advertise with.

Article 8 provides that regulatory authorities should have sufficient means and legal powers to effectively enforce net neutrality. The competent authority must regularly monitor and report on the compliance with net neutrality. The report by BEREC on traffic management practices[17] could serve as a basis for such reporting, while the Model additionally prescribes that regulatory authorities must be properly equipped to assess net neutrality from a human rights perspective.

Lastly, article 8(b) of the Model grants Internet users the right to file net neutrality infringement complaints with the regulatory authority as well as the competent court.