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The Search for Net Neutrality

My weekly Law Bytes column (Toronto Star version, freely available version) examines the growing trend toward a two-tiered Internet, which upends the longstanding principle of network neutrality under which ISPs treat all data equally.

I argue that the network neutrality principle has served ISPs, Internet companies, and Internet users well. It has enabled ISPs to plausibly argue that they function much like common carriers and that they should therefore be exempt from liability for the content that passes through their systems.

Websites, e-commerce companies, and other innovators have also relied on network neutrality, secure in the knowledge that the network treats all companies, whether big or small, equally. That approach enables those with the best products and services, not the deepest pockets, to emerge as the market winners.

Internet users have similarly benefited from the network neutrality principle. They enjoy access to greater choice in goods, services, and content regardless of which ISP they use. While ISPs may compete based on price, service, or speed, they have not significantly differentiated their services based on availability of Internet content or applications, which remains the same for all.

Notwithstanding its benefits, in recent months ISPs have begun to chip away at the principle.

Update: My column this week on a two-tiered Internet attracted considerable attention, though several people noted privately that it focused primarily on the situation in Canada and the U.S. I’ve tried to remedy that with a piece for the BBC that includes further examples from Europe and the developing world. The bottom line is that situation is much the same with growing pressure to block applications such as VoIP and peer-to-peer services evident around the world.

By Michael Geist, Chair of Internet and E-commerce Law

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Martin Weiss  –  Dec 22, 2005 7:47 PM

I have been following the network neutrality discussion in various places on the net recently (see this).  In particular, I find Ray Gifford’s comments clear and useful. 

Related to this is the article in the current Technology Review which discusses a potential Internet redesign. While it is certainly a worthwhile exercise, I have some questions ... I believe that it is unlikely that network neutrality as we know it today would survive.  The large ISPs would certainly be deeply involved in this process, and would have every incentive to ensure that they have ability to price as they deem appropriate as shown by Whitacre’s recent remarks (and Hoewing’s in the Business Week article).

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