The FCC's Open Internet Proceeding - Implications for Political Speech



Barbara van Schewick, Stanford Law School

Date and Time

February 4, 2010 4:30 PM - 6:30 PM


Open to the public.

No RSVP required


Wallenberg Theater

FSI Contact

Kathleen Barcos

Who should decide how users can use the Internet? users or network providers? Should network providers be allowed to block certain applications or content on their networks? Should they be allowed to offer different classes of service to applications or content, and, if yes, whom should they be allowed to charge for this service? And should the answer to these questions differ depending on whether a network provider engages in these practices to manage bandwidth on its network?

Triggered by changes in Internet technology, these questions over network neutrality have moved to the center of the regulatory and legislative debates surrounding the Internet worldwide. They are at the core of the Open Internet Proceeding, launched by the Federal Communications Commission in October 2009 to explore what rules are needed to secure the Internet's openness. The talk will give an overview of the draft rules proposed by the Federal Communications Commission and explain how the alternative options under consideration would affect the environment for political speech in the United States.

Barbara van Schewick's research focuses on the economic, regulatory, and strategic implications of communication networks. In particular, she explores how changes in the architecture of computer networks affect the economic environment for innovation and competition on the Internet, and how the law should react to these changes. This work has made her a leading expert on the issue of network neutrality.Her book "Internet Architecture and Innovation" will be published by MIT Press this spring.

Professor van Schewick is the Faculty Director of Stanford Law School's Center for Internet and Society and an assistant professor of electrical engineering (by courtesy) at Stanford's Department of Electrical Engineering.

Prior to joining the Stanford Law faculty, van Schewick was a senior researcher at the Technical University Berlin, Germany, and a nonresidential fellow of the Center for Internet and Society. Van Schewick has advised the German Federal Ministry of Education and Research on innovation and technology policy and worked with the German Federal Network Agency on spectrum policy. From August 2000 to November 2001, she was the first residential fellow at the Center for Internet and Society.

Summary of the Seminar
Barbara van Schewick, Assistant Professor at the Stanford Law School, introduced the current debate about net neutrality and explored the implications for diversity and freedom of expression online.

Network providers were at one time ‘application blind' - they were unable to see what was contained in the data packets that allow information to be transmitted online. Now that this is no longer the case, a debate has emerged about the role for regulation in controlling the ability of network providers to block or interfere with applications. What was drawn up as a voluntary policy statement is now being considered and revised by the FCC's Open Internet Proceeding.

Blocking of applications is problematic on several counts. First, there may be incentives for network providers to block applications that threaten their own profitability (for example, Skype). This leads to a situation where the success of applications is no longer decided on user criteria and the overall value created for society diminishes. Second, the great promise of the internet is that it removes traditional gatekeepers (such as mass media outlets) to speech. This is undermined if network providers have the ability to control what content users see. This is particularly problematic since users cannot easily switch to another provider as they could if a particular store did not carry a product they wanted. The cost of switching makes this impractical and in places without a choice of providers, this is not an option.

In drawing up regulation against blocking the FCC is debating a number of related issues:

Discrimination: Even if blocking is prohibited, discriminating between levels of service can still allow network providers to slow down an application to the extent that it becomes un-useable. This is actually a more effective tool than blocking since it is much harder to detect. Users may attribute slow speeds to poor design and potentially useful applications will fail to get traction.                                                                                                                                                                                                                                                                                                                                                                                                                              

Charges for different levels of service: Even if we agree network providers should not discriminate between the services they provide in an arbitrary way, could they offer improved service for payment? Opponents argue that this policy would be bad for competition since new developers would be unable to pay for the levels of service that established players could afford. And it would threaten the ability of poorly resourced minority voices - e.g. small NGOs and publications - to get heard.

Exceptions to discrimination: Network providers argue that there needs to be some discrimination to allow them to undertake reasonable network management. But it is difficult to determine what counts as reasonable management. One concern is that peer to peer networks - which allow those without many resources to exchange material cheaply - might be targeted in particular, since they can create a lot of congestion. This might also threaten the ability of new applications with high bandwidths to get funding, since the risk of being slowed down by the networks would be perceived to be too high by investors.

Many of the major benefits of the internet - the ease of publishing and coordinating, for example - are only possible through applications. Hence the outcome of this debate will have serious implications for the future social and political impact of the internet. 

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