https://www.sbs.com.au/news/will-the-us-net-neutrality-decision-affect-australian-internet-usersThe concept of network neutrality is not an Internet-exclusive term and its origins predate the 20th Century common adoption of computer use. However, in the context of the Internet, net neutrality is the notion that Internet Service Providers (ISPs) should not, discriminate against types of data in their delivery, whether by being “blocked, prioritized or delayed” (DeNardis, p. 132). This concept derives from the protection of consumer rights in relation to ‘common carriers’: any enterprise predominantly characterised by the transporting of things on behalf of customers. Examples of this concept and its relationship to net neutrality are found in the United States’ Communications Act of 1934 under which companies which fulfil the criteria of a common carrier, including both railroad companies and telephony companies, are subject to regulation by the US Federal Communications Commission, which- up until recently- included the upheld principle of net neutrality.
There are a number of issues in relation to the Internet that have sparked debates of their need for government intervention, such as moderation of hate speech or private companies use of individual’s personal information. Given characteristics of the internet, such as its anonymity and lack of borders, regulating the Internet is a somewhat futile endeavour for governments. However, given that net neutrality is concerned with the conduct of businesses who act as common carriers- in the case of the Internet being ISP’s- governments are able to legislate rules for carriers operating within their jurisdiction.
VIDEO at beginning of article: https://www.sbs.com.au/news/will-the-us-net-neutrality-decision-affect-australian-internet-users
While Australia does have carrier laws, the concept of net neutrality and its relation to Internet Service Providers is not enshrined in legislation. In examining the applications of net neutrality in the past, and in various circumstances and contexts, its relevance to governments and particularly the Australian context can be better gauged.
Issues Regarding Net Neutrality in the United States
In 2017, the Trump-appointed head of the Federal Communications Commission, Ajit Pai, overturned the previously implemented net neutrality provisions for ISPs. This was done on the grounds of protecting the ability of ISPs to invest in innovation and infrastructure (Selyukh and Green, 2017). The consequences of this for the openness of the Internet might be easily predicted by examining issues that arose prior to the Obama-era enforcement of net neutrality.
As discussed by DeNardis, abortion rights group NARAL Pro-Choice America sought to obtain a ‘short code’ from telecommunications company Verizon in 2007 for the purpose of allowing supporters to opt-in to receive information from the campaign via text message. The group gave an example of the types of messages they sent out for this purpose through other companies: “End Bush’s global gag rule against birth control for world’s poorest women! Call Congress. (202) 224-3121. Thnx! Naral Text4Choice” (Liptak, 2007). Verizon turned NARAL down in their request, citing their ‘right to block “controversial or unsavoury” text messages’ (DeNardis, p. 136). The advocacy groups rejection was featured in media outlets, namely front-page of New York Times, and gained waves of support in the form of emails to Verizon, challenging their judgement. Ultimately this reaction led to the telecommunications company overturning their decision. While Verizon fell under the category of ‘common carrier’ at the time, meaning they are ‘prohibited from discriminating on the basis of the person speaking or what is being spoke’ (DeNardis, p. 136), this only applied to voice calls- the text message form sought by NARAL was not covered by these conditions. This example demonstrates not only the ways in which net neutrality can prevent private companies from imposing restrictions on speech due to motivators such as political bias, but also complexities involved government regulation of net neutrality, which will be discussed further later.
What about Europe?
The European Union has Net Neutrality enshrined in law under article 3 of the EU Policy 2015/2120. A number of European Union member countries have their own domestic legislation further protecting net neutrality and other Internet-related concerns. Such as the Finland and the UK’s commitment to a Broadband Universal Service Obligation. As well as the Netherlands enshrining the principal in law under 2011 amendments to their Telecommunications Act and the UK’s communications regulator OFCOM (Bhatti, 2018). However, despite the UK seeing a number of provisions to implement and protect the fair treatment of data, sport entertainment networks BT and Sky still managed to strike an agreement to provide access to each of their respective content, benefitting each other and threatening competitors.
The European Digital Rights (EDRi) advocacy group has described the EU’s ‘Telecoms Single Market Regulation’ as “legislation that essentially means nothing, generating regulatory burdens and confusion, while failing to protect freedom of communication, competition and innovation” (McNamee, 2015) and claimed its attempt to protect the principle of net neutrality would actually have the opposite effect.
The EDRi’s comments and the example of the BT/Sky alliance bring into question the ability of governments to effectively regulate net neutrality at all, with those opposed to regulation, such as the Cato Institute, claiming that competition in a free market will most effectively provide consumers with the choices they desire. This is complimented by notions raised by Christopher S. Yoo, a law professor from the University of Pennsylvania, quoted by New York Times in their 2007 coverage of the NARAL and Verizon text message conflict discussed above. Yoo believes that “instead of having the government get in the game of regulating who can carry what, I would get in the game of promoting as many options as possible… you might find text-messaging companies competing on their openness policies” (Liptak 2007).
What does this mean for Australia?
Issues that arise when attempting to govern the principal of net neutrality, specifically in regard to modern communication technologies, currently appear to have culminated to a conflict between the need for technology-specific regulation (in order to effectively achieve an ‘open internet’) and the need for legislation to be able to adapt to evolution of use and innovation in technologies, whilst also allowing service providers to operate competitively.
As previously mentioned, Australia has no legislation or government body with the responsibility of protection of net neutrality in regards to the Internet. However, the overturning of the US’s protections may necessitate laws in order to protect the principal, according to Tim Single-Norton of Internet advocacy group Digital Rights Watch. Single-Norton claims that the regulation in the US set a standard for operators that Australian ISPs were voluntarily aligning with, and now consumers are at risk of their provider following the US’s trend. A number of telecommunications companies in Australia engage in zero-rating, a concept that some consider falls into a grey area of net neutrality in which use of particular Internet services are not counted in the users data usage, such as streaming services Spotify or Netflix (Duxfield, 2017).
The Australian Competition and Consumer Commission’s is an independent government body who’s primary responsibility is the protection of consumer rights, which includes monitoring anti-competitive behaviours. A spokesperson for the ACCC spoke with SBS News on the topic of net neutrality to assure Australian consumers that they have not detected blocking behaviours by ISPs in Australia, their analysis being that “the incentives and opportunities to discriminate or foreclose are not as evident in Australia as in other jurisdictions” (Elton-Pym, 2017). Further, the Commission believes that Australia’s current consumer protection legislations would be able to be utilised in order to prevent or discipline ISPs attempting to engage in such behaviours (Elton-Pym, 2017). These claims by the ACCC are not well received by net neutrality advocates in Australia, with calls for rigid legal protection of the principal coming from groups such as Digital Rights Watch (Duxfield, 2017).
Recalling the issue discussed earlier regarding the effectiveness of governmental regulation in this sphere, as well as the ideas discussed by DeNardis concerning the linguistics and the “construction of language certain interpretive effects” (p. 148), it appears that for the Australian context, a blanket legislation will likely be ineffective, as has been seen in the UK. However, given the confidence of the ACCC in it’s ability to protect consumers, the next step for the government in this area may be broadening and strengthening the commissions ability to do so in relation to net neutrality.
Bhatti, S. (2018). Net neutrality may be dead in the US, but Europe is still strongly committed to open internet access. Retrieved from https://theconversation.com/net-neutrality-may-be-dead-in-the-us-but-europe-is-still-strongly-committed-to-open-internet-access-89521
Denardis, L. (2014). Global war for internet governance (pp. 131-152). Yale University Press.
Duxfield, F. (2017). US net neutrality ruling could affect internet access in Australia. Retrieved from https://www.abc.net.au/news/2017-12-16/net-neutrality-us-decision-could-affect-australians/9265056
Elton-Pym, J. (2017). Will the US net neutrality decision affect Australian internet users?. Retrieved from https://www.sbs.com.au/news/will-the-us-net-neutrality-decision-affect-australian-internet-users
Liptak, A. (2007). Verizon Blocks Messages of Abortion Rights Group. Retrieved from https://www.nytimes.com/2007/09/27/us/27verizon.html
McNamee, J. (2015). So, what ever happened to net neutrality in Europe?. Retrieved from https://edri.org/eu_netneutrality/
Selyukh, A., & Greene, D. (2017). FCC Chairmain Ajit Pai Makes Claims for Tackling Net Neutrality Violations ‘After the Fact’. Retrieved from https://www.npr.org/sections/alltechconsidered/2017/05/05/526916610/fcc-chief-net-neutrality-rules-treating-internet-as-utility-stifle-growth