A prime example of the complex relationship between digital technologies and the legal system is the fluidity and geographical variance of the laws that regulate broadband access. The discussion is typically framed — as far as I can tell from my outsider’s perspective — around two absolute principles, namely network neutrality and networks vitality. The net neutrality and net vitality camps, at least in their purest expressions, often seem uninterested in hearing each other’s arguments. This tends to hide from public discussion the layered technological, economic, moral and legal aspects that underlie the delicate balance between access and economic incentives that is at the core of the issue. And things appear to be getting even more involved with the advent of 5G.
Net neutrality is — for purists — the principle that all bits are created equal. Accordingly, broadband access providers should not be allowed to “throttle” packets on the basis, for instance, of their application (e.g., BitTorrent) or their origin (as determined by the IP address). The network should be “dumb” and only convey bits from two ends of a communication session. Regulation that upholds net neutrality rules is in place in many countries around the word, including in the EU and the US. Under the previous US administration, the FCC reclassified broadband Internet access as a “common carrier”, that is, as a public utility, in 2015, allowing the enforcement of net neutrality rules. Under the new administration, this decision now appears likely to be reversed.
The counterarguments to net neutrality typically center around some notion of net vitality, which refers broadly to the dynamism of the broadband Internet ecosystem, particularly as it pertains investment and growth. The term was coined in a report by the Media Institute, where a quantitative index was proposed as a compound measure of the net vitality of a country in terms of applications and content (e.g., access, e-government, social network penetration, app development), devices (e.g., smart phone penetration and sales), networks (e.g., cybersecurity, investment, broadband prices), and macroeconomic factors (e.g., number and evaluation of start-ups).
Net neutrality purists — not all advocates fall in this category — believe that allowing broadband access providers to discriminate on the basis of a packet’s identity would pose a threat to freedom of expression and competition. Without net neutrality rules, telecom operators could in fact block competitors’ services, and also favor deep-pocketed internet companies, such as the Frightful Five (Alphabet, Amazon, Apple, Facebook and Microsoft), that can outspend start-ups for faster access. A case in point is the ban of Google Wallet by Verizon Wireless, AT&T, and T-Mobile to promote their competing Isis (!) mobile payment system.
The net vitality camp, headed by broadband access providers and economists, deems net neutrality rules to be an impediment to investment and growth. As claimed in a 2016 manifesto by European telecom operators, only by charging more for better service can sufficient revenue be raised by broadband access providers to fund new infrastructure and services.
Digging a little deeper, one finds that the issue is more complex than implied by the arguments of the two camps. To start, some discrimination among the bits carried by the network may in fact serve a useful purpose. For instance, by letting some packets be transported for free, telecom operators can offer zero-cost Internet access to the poorest communities in the developing world as in the Facebook Zero and Google Free Zone projects. And packet prioritization is in fact already implemented in LTE networks as a necessary means to ensure call quality for Voice over LTE (VoLTE is not considered to be a broadband Internet service and hence not subject to net neutrality regulations).
That net neutrality is a more subtle requirement that the “every bit is created equal” mantra is in fact well recognized by many net neutrality advocates. When making the case for net neutrality rules, the then-president Obama called for “no blocking, no throttling, no special treatment at interconnections, and no paid prioritization to speed content transmission”, hence stopping short of prescribing full bit equivalence. Tim Berners-Lee and Eric Shmidt have also voiced similar opinions.
The planned transition to 5G systems is bound to add a further layer of complexity to the relationship between net neutrality and net vitality. 5G networks are indeed expected not only to provide broadband access, but also to serve vertical industries through the deployment of ultra-reliable and low-latency communication services. In this context, it seems apparent that bits carrying information about, say, a remote surgery or the control of a vehicle, should not be treated in the same way as bits encoding an email.
As the example of VoLTE shows, a general solution may lie in isolating mobile broadband services, on which strong net neutrality guarantees can be enforced, from other types of traffic, such as ultra-reliable and machine-type communications, on which traffic differentiation may be allowed. The feasibility of this approach is reinforced by the fact that isolation is a central feature of network slicing, a technology that will allow operators of 5G to create virtual networks that are fine-tuned for specific applications.