Last week, the Secretariat of the United Nations’ Internet Governance Forum approved the creation of the .

Along with a conspicuous number of workshops, dynamic coalitions represent the structural elements of the IGF. Both elements have a heterogeneous multi-stakeholder composition and are aimed at the discussion of “public policy issues related to key elements of Internet governance”, as the IGF mandate suggests. (Tunis Agenda, para. 72.a)

On the one hand, IGF workshops are unique events which allow various stakeholders to jointly analyse “hot topics” or to examine progress that such issues have undertaken since the previous IGF. On the other hand, dynamic coalitions are supposed to evolve over the years in a lively fashion and represent an exceptional opportunity to build an enduring and collaborative policy-shaping effort.

The long-term nature of dynamic coalitions is probably better-suited in order fulfil one of the most forgotten subparagraphs of the IGF mandate, according to which the forum shall “[i]dentify emerging issues, bring them to the attention of the relevant bodies and the general public, and, where appropriate, make recommendations”. (Tunis Agenda, para. 72.g)

Indeed, IGF workshops are extremely circumscribed events and although the content of their discussion is usually extremely valuable, their 90-minute length does not allow them to generate political momentum around the issues they raise and confines workshops’ debates to a conference-centre room and to a usually un-consulted report. Au contraire, dynamic-coalitions’ activities are supposed to be much broader than a 90-minute-long meeting, which is rather a moment to share the work that has been achieved over the year, discuss it and envisage the next steps.

The Interest of Creating the Network Neutrality Dynamic Coalition

“Network neutrality” is an appealing and multifaceted expression which encompasses several policy areas and may give rise to misinterpretations.

In view of the various approaches to this multi-faceted topic, it is important today to address the question of network neutrality through a multi-stakeholder approach. The purpose of the Network Neutrality Dynamic Coalition, therefore, is to provide a discussion arena aimed at allowing all interested stakeholders to jointly scrutinise the various nuances of the network-neutrality debate so as to ultimately contribute to the circulation of best practices and the elaboration of well-advised policies and regulations.

The idea of a Dynamic Coalition on Network Neutrality was presented during Multi-Stakeholders Dialogue on Network Neutrality & and Human Rights, organised under the auspices of the Council of Europe. Many of the stakeholders involved in the event have immediately manifested their interest in the initiative, stressing the need to clarify the network neutrality debate and highlighting the interest of a platform aimed at promoting the dialogue on the matter.

An Action Plan

The Dynamic Coalition on Network Neutrality will provide a common platform involving a large variety of stakeholders in a cooperative analysis of the network neutrality debate. Beyond , which will provide basic information on the work done by the dynamic coalition (e.g. publications, events, etc.), the of the coalition will allow all members and interested individuals to discuss in an open and interactive fashion.

The goal of the Dynamic Coalition will be to inform and disseminate information on current trends and policy developments with regard to network neutrality. To this end, an annual report will be produced to provide an overview on Net Neutrality tendencies, policies and draft legislation. The first Annual Report will be dedicated to the relation between network neutrality and human rights and will encompass a selection of position papers that will be presented and discussed at the next IGF.

to the 1^st Annual Report of Dynamic Coalition on Network Neutrality has been recently issued and all interested individuals and organisations are invited to participate.

Lastly, the Dynamic Coalition will attempt to elaborate a “model framework” on network neutrality, which can be deemed as consistent with international human-rights standards. Such a model framework will aim at providing guidance to national legislators and respond to the growing able to safeguard end-users’ human rights and fundamental freedoms while fostering fair competition and freedom to innovate.

By all means, every interested stakeholder is welcome this collaborative effort.

The post A New Arrival in the IGF Family: the Dynamic Coalition on Network Neutrality appeared first on IPOsgoode.

According to the Bill, Internet access service providers have the duty to: 

"(1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use an Internet access service...

(2) not impose a charge on any Internet content, service, or application provider to enable any lawful Internet content, application, or service to be offered... through the provider's service, beyond the end user charges associated with providing the service to such provider...

(6) not provide or sell to any content, application, or service provider, including any affiliate provider or joint venture, any offering that prioritizes traffic over that of other such providers on an Internet access service...."

Furthermore, the Bill is specifically designed to ensure Internet access is provided in a non-discriminatory manner.  Thus, the Bill's design is congruent with  main argument for net neutrality: since a large portion of residential consumers who subscribe to Internet access can only choose from one or two providers, allowing the providers to preferentially block access to certain websites and other online content would deny consumers browsing freedom.  Also, the Bill only applies to legal content, so Internet service providers would still have the option to attempt to completely block their users illegal downloads and uploads.

In addition, the Bill grants rule-making and enforcement duties to the Federal Communications Commission.  However, some argue that the Bill still suffers from imprecise language flaws, which was of in 2006.  For instance, the Bill requires that the Federal Communications Commission ensure Internet service providers engage in "reasonable network management" and only briefly discusses factors used in determining whether a network is reasonable managed.

Others in support of net neutrality have argued that Markey's proposed legislation would be .  They argue that government regulation on net neutrality is not necessary.  Instead, they argue that net neutrality would be better served if the government .  The government could then use these funds in areas where there is no longer a sufficiently open network to deploy additional broadband lines into the area. A third-party could then operate an alternative Internet service on the newly deployed lines.  However, this potential solution creates some challenges.  First, deployment of additional broadband infrastructure would likely take a significant amount of time and incur large expenses.  Second, it would be difficult to determine whether a network was sufficiently open.  Third, the alternative Internet service provider, operating without net neutrality regulations, could preferentially block content and become insufficiently open.

While the new Federal Communications Commission Chairman appears to be , only time will tell if Markey has done enough to persuade Congress to enact the net neutrality Bill this time.

The post Markey’s Third Strike? The Internet Freedom Preservation Act of 2009 appeared first on IPOsgoode.

Proponents of net neutrality, such as and , argue that the , which states that communications protocol operations should be defined to occur at the end-points of a communications system, naturally leads to a , where all intelligence and control is held by producers and users, not the networks that connect them.  They argue that not upholding the principle of net neutrality would allow Internet service providers to control what content users can access online.  Further, proponents argue that allowing broadband carriers to provide preferential treatment to certain customers would put smaller companies at a competitive disadvantage.  According to Lessig and McChesney:

"Most of the great innovators in the history of the Internet started out in their garages with great ideas and little capital. This is no accident. Network neutrality protections minimized control by the network owners, maximized competition and invited outsiders in to innovate. Net neutrality guaranteed a free and competitive market for Internet content. The benefits are extraordinary and undeniable."

However, opponents of net neutrality, such as and , believe that net neutrality will stifle innovation.  Specifically, they argue that prioritization of bandwidth is required for future innovation since the additional revenue from tiered services can be invested in broadband development.  Without a preferential system, opponents argue that Internet service providers would have a reduced incentive to develop better services because it would be more difficult for them to recover their investments.  As a consequence of reduced innovation, that there is increased potential for massive online crashes: "[a] massive increase in traffic that resulted in overloads of router buffers and caused localised and progressive failure through the network is one of our major concerns.  Packet loss leads to degradation of service, increased waiting times and reduces reliability to the point of unusability."

Italy, and the United States have reacted in response to the arguments raised by proponents and opponents of net neutrality.  In Italy, in March 2009 that aims to provide neutral access to the Internet, make access conditions transparent and to spread the use of new communication technologies.  It is not known when the bill will be voted on by Italy's parliament.  In the United States, the Federal Communications Commission ("FCC") has exercised its jurisdiction over the issue.  On August 1, 2008, the FCC ruled that Comcast had illegally prevented users from using file-sharing applications.  Further, FCC Chairman :

"(1) Consumers are entitled to access the lawful Internet content of their choice; (2) Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement; (3) Consumers are entitled to connect their choice of legal devices that do not harm the network; and (4) Consumers are entitled to competition among network providers, application and service providers, and content providers."

Thus, it appears that Germany and the United States have begun to support the principle of net neutrality.  In Canada, the New Democratic Party has strongly supported net neutrality.  In fact, Member of Parliament ("MP") has .  Furthermore, on June 18, 2009, federal Liberal Party MP "the Liberal Party supports the principles of net neutrality and an open and competitive Internet environment.  Internet management should be neutral and not be permitted for anti-competitive behaviour nor should it target certain websites, users, providers or legitimate software applications. We must protect the openness and freedom of the Internet, and maintain competition to spur innovation, improve service levels and reduce costs to users."  However, the Conservative Party of Canada remains non-committal on the issue, arguing that free market competition is preferable to regulation.

The post The Principle of Net Neutrality: Arguments and Recent Developments appeared first on IPOsgoode.

The combination of these effects (greater bandwidth for users, less competition for ISPs) has incentivized ISPs to change the service they are providing to home-users. In a recent article: by Barbara van Schewick and David Farber, van Schewick describes a number of scenarios in the US and Canada where ISPs have restricted their networks. On a general level there are three incentives for ISPs to impose restrictions.

1.    Further a monopoly – ISPs have an incentive to impose restrictions on their network to further profits for their own co-branded complimentary service or prevent a competitor’s substitute service. For example, ISPs such as AT&T and Verizon that offer co-branded services with Yahoo, may have an incentive to slow down traffic coming from competitors like Google.

2.    Conserve Bandwidth – ISPs have imposed network restrictions on certain protocols, ports, and applications so that in the short run high bandwidth consuming users don’t degrade the network to the point of excluding other users, and in the long run so that ISPs don’t have to invest as much in upgrading network capacity.

3.    Restrict Unwanted Content – ISPs have restricted specific internet content on their network based on their own internal policies and political views. For example, from a Webcast of a Pearl Jam concert in which the singer criticized George W. Bush.

Arguments why these Restrictions are Problematic

Within the article, van Schewick argues that these network restrictions are problematic and should be of concern because:

1.    It stifles new innovations. Both inventors and investors would be more hesitant to invest time and resources into new internet technologies for fear that it would be restricted by an ISP.

2.    It would reduce the ability of home users to freely choose what they want to consume making the market less efficient.

3.    It would truncate a home user's ability to interact, educate, and engage in any discourse and idea.

A call for Net Neutrality

These changes and potential problems have spurred a for Net Neutrality. But what does Net Neutrality encompass? In the Point/Counter point article, Farber argues that:

The definition of net neutrality reshapes itself like lungs. It expands, drawing in causes ranging from freedom of speech to open access. Then it contracts, exhaling a lot of hot air, and starts all over again.

Perhaps a good working definition to start with is the one from

Put simply, Net Neutrality means no discrimination. Net Neutrality prevents Internet providers from blocking, speeding up or slowing down Web content based on its source, ownership or destination…. It protects the consumer's right to use any equipment, content, application or service on a non-discriminatory basis without interference from the network provider. With Net Neutrality, the network's only job is to move data -- not choose which data to privilege with higher quality service.

Restoring Balance to the Internet

Assuming that the restrictions (e.g. traffic shaping) and the resultant effects (e.g. inefficient markets) are undesirable, how should the current system be changed to restore the ISP network to a less restrictive state?

While both van Schewick and Farber agree that some level of network neutrality is important, they disagree on how this should be achieved. Van Schewick argues that net neutrality laws are required. She justifies this claiming that more ISP competition and existing anti-competition laws will not discourage ISPs from restricting their networks to further monopolies, save bandwidth, and sensor unwanted content. Farber, on the other hand, argues that net neutrality laws are not necessary. Legislation in this area has been ineffectual in the past, would add an additional layer of complexity, and may actually restrict the development of the internet by restricting the free market choices networks can make. He says that further cooperation between institutions, ISPs and those concerned with the internet is needed. As well, ISPs need to provide more information to home-users on service restrictions. He also advocates for institutions to share more information on the health of the internet.

Farber’s argument and examples are persuasive. If net neutrality can be restored without legislation, this would be a simpler solution.  One of the alternatives to legislation is an increase in ISP competition. A number of advocates have called for increased competition in the ISP market.  van Schewick, however, finds issue with solely relying on the market to regulate ISPs.

One of the monopolistic practices ISPs have engaged in is blocking applications that compete with one of their other traditional business models. For example, in 2005, Madison River, a rural phone company in the US, because it threatened revenue from tradition phone services.

van Schewick argues that more competition won’t resolve this type of practice if all ISPs engage in the same practice and there is no other provider for users to switch to. As proof, van Schewick discusses how in many countries all mobile network providers block internet telephony applications to protect the revenue from their mobile voice services.  But this argument fails to take into consideration two things. One, are the countries in this example ones where there are many competitors within the same geographic market?  Two, assuming that the market is geographically competitive, is it actually  economically viable for any mobile carrier to offer this service?

Economic theory holds that because of the competition in a perfectly competitive market, the price an organization charges for a service will be driven down to the organization’s marginal cost of providing that service.  If the marginal revenue from allowing consumers to use internet telephony applications on the wireless network is not enough to offset the marginal cost of offering that service for all providers, then it doesn’t matter how competitive the market is, no provider will offer this service.  Logically this is desirable because it is the most efficient way to allocate resource. If providers were taking a loss their business would be unsustainable. At least with a competitive market, mobile providers will be striving to reduce costs and potentially provide access to internet telephony applications on their mobile services. Once one provider discovers how to make this economically feasible, then other competitors will need to as well or else face loss of customers. In a duopoly however, there is a less incentive for providers to reduce costs and price and improve service. It is more likely that both providers will engage in conscious parallelism and not undercut each other.

Secondly van Schewick argues that home-users do not have an incentive to switch if they do not realize their ISP restricts their preferred application and network.  In a competitive market, however, home users do not need to have the sophistication to detect network restrictions. Since competing ISPs want to attract customers away from their competitors, ISPs have a vested interest in investigating and exposing to home-users any restrictions their competition places on the network.

Thirdly, van Schewick argues that the cost of switching to a different ISP is significant and therefore a deterrent.  Within Canada nothing could be further from the truth.  Even with a duopoly, there are no cancellation fees except that the account will be terminated 30 days after notification, and most ISPs will send home users the high-speed modem free of charge via the mail – no technician required.  All the home-user has to do is plug in the device and input their password.

Lastly, van Schewick argues that ISPs don’t need to have a monopoly on the market to make discrimination and restrictions profitable; the increase in revenue from selling more copies of a co-branded service would be enough incentive to justify network restrictions. For example, even if Bell was competing against many ISPs and had only a small market share, Bell would still be able justify providing preferential access to Amazon music stores over other music providers if they were co-branded with Amazon. This is perhaps the most persuasive argument for net neutrality legislation. However, it is also a phenomenon of the free market that occurs frequently in other industries. The Air Canada Centre in Toronto has an exclusive arrangement with Pizza Pizza. Car manufacturers make exclusive deals with tire companies.  Loblaws carries President’s Choice products instead of Master’s Choice. The reality is that consumers frequently need to choose between products and services that are bundled with others they may have distaste for.  With enough competition, however, hopefully there would be a sufficient variety of options to satisfy the preferences of all consumers, even those who would be willing to pay a premium to have an open, unbundled gateway to the internet.

Despite van Schewick’s arguments, increasing competition in the ISP market still appears to provide a potential alternative solution to net-neutrality legislation. Perhaps the strongest argument for net neutrality laws not canvassed by van Schewick, however, is that restoring competition in the ISP market may not be possible. Currently, cable and telephone providers own the last mile of infrastructure that brings the internet to home-users. As Farber pointed out in his counter-point, and the US at forcing cable and telephone providers to relinquish control of this infrastructure has been difficult, expensive, and time consuming.   Without a forceful lever to restore competition, net neutrality laws may still be the next best option to keep the internet open.

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