Net Neutrality and New Media Regulation

Today I’m going to look at the inevitable intersection of ‘Net neutrality and new media regulation. The populist position – one with which I concur – is to want ‘Net neutrality, and not to want new media over-regulation (and in many cases, any regulation is over-regulation). The ‘Net is new media, and thus, notwithstanding the slim possibility of a benevolent mood swing by the corporations holding the ‘Net’s short ones, we require public policy-oriented interference, i.e. regulation. I will address this in a two-parter. Today I’ll deal with the ‘Net neutrality issue, and next time, I’ll consider new media regulation – outside of the ‘Net neutrality context – by the CRTC.

Earlier this year, Professor Michael Geist of the University of Ottawa blogged a list of “Eight Tech Law Issues to Watch in 2008.” Among them were “CRTC Injects Itself into New Media Regulation Debate,” and “Net Neutrality Concerns Mount but Politicians do not Respond.”

We can see a very simple solution to either on its own: If we’re concerned about CRTC involvement in new media regulation, we can rest assured that politicians are ignoring ‘Net neutrality, and therefore staying out of the new media regulation fray. If we’re concerned about ‘Net neutrality, we can rest assured that the CRTC is butting in and will work hard to ensure that telecoms and cable companies are held at bay, and held to the limits prescribed for information conduits by the Telecommunications Act.

But what if we want both? What if we want the CRTC to censure its censorship tools, but still to work at maintaining ‘Net neutrality? What if we want to find a 21^st century way to achieve the web/net/new media dreams extolled at the end of the 20^th? In other words, how can we pursue the Barlow-esque dreams of the new cyberfrontier in a post-gold rush world where every corporation, luddite, and Facebooked teenager is part of the game? Where can we find the nuances in each of these two concerns that will allow a productive intersection of ‘Net neutrality and public policy regulation?

Prof. Geist summarizes the issues as follows:

CRTC Interference: “The public will recoil at the prospect of government regulation, but some cultural groups will welcome increased intervention.”

‘Net Neutrality: “…ISPs implement traffic throttling technologies that undermine the reliability of some Internet applications and experiment with differing treatment for some content and applications.”

We’re going to have to get into some detail here with respect to the relevant sections of the Telecommunications Act (S.C. 1993, c. 38). For those of you who are unfamiliar with the Act, “the Commission” refers to the CRTC, and a “carrier” is a telecommunication service provider, which is a conduit, as opposed to a broadcaster, which is in a sense a content creator (or at least a content mediator).

Section 36 of the Act reads as follows:

“Except where the Commission approves otherwise, a Canadian carrier shall not control the content or influence he meaning or purpose of telecommunications carried by it for the public.”

It can be interpreted to read that all carriers be content neutral; they are merely conduits with neither rights nor responsibilities in respect of the content flowing through. There is, of course, an exception for interference when directed by the CRTC, but otherwise the corporate entity (Shaw, Rogers, Bell, Telus, etc.) has no right to segment the distribution of Internet signals based on their content and thus profitability.

What we are dealing with here, in the debate for or against ‘Net neutrality, are rates and services, which are covered by Part III of the Act. Rates and services go to the core of the issue – ISPs are not trying to stick their fingers into content in order to join the so-called battle against copyright infringement. They are not trying to slow down your torrents so as to prevent movie and music piracy. They are trying to segment traffic in such a way as to charge more for media-rich content. Again, not because they intend to give those extra costs to the content creators – the ostensible “victims” of infringement – but because they feel that such use requires more resources and thus should be more expensive. While that argument may be sound, it is solely at the discretion of the CRTC whether they can raise rates either generally, or according to a segmented schema. We saw that above in s.36, which actually follows on the heels of the enumeration of relevant powers vested in the CRTC by s.32. Specifically:

“The Commission may, for the purposes of this Part,

(b) determine standards in respect of the technical aspects of telecommunications applicable to telecommunications facilities operated by or connected to those of a Canadian carrier;

(g) in the absence of any applicable provision in this Part, determine any mater and make any order to the rates, tariffs or telecommunications services of Canadian carriers.”

If ISPs want to eliminate ‘Net neutrality, they have to go through the CRTC. For if we allow them their convenient arguments about infrastructure cost for media-rich content, what’s to stop them from similar arguments in favour of premium prices for secured socket connections, such as shopping carts. Perhaps they would like a piece of that pie and will claim that encrypted traffic is proportionally larger, per useful byte of data (which it is, considering that each byte is blown up exponentially into an encrypted string), and thus frequent online shoppers should pay more through increased bandwidth costs to the online stores. The problem is that the stores pay for the bandwidth they use, and if encrypted data take up more bytes per datum than non-encrypted, then it costs more in simple traffic. But these arguments would have them pay more per byte: If a non-encrypted byte costs x, then that same byte, encrypted, costs 8x, since the encrypted datum is eight times the size. But the ‘Net neutrality opponents would have them pay more than 8x. How do I surmise that?

Right now, I pay for a cable connection at home. Perhaps I use more of the available bandwidth than one neighbour, and perhaps less than another. But we all pay the same flat rate amount, if we have the same high-speed cable connection. The plan being asked for by ‘Net neutrality opponents (ISPs) is not to charge pro rata for bandwidth, but possibly to charge more for bandwidth being consumed by media-rich content. How do I come to that conclusion? Simply this: they are packaging it that way. I already have a bandwidth allowance. If it is a problem, they should re-institute the caps they had in the early days of broadband, and simply charge users for exceeding the cap. They shouldn’t be charging more for some content over others, if the bandwidth consumption is the same. Perhaps I am wrong. Perhaps they intend to charge more for bytes above a certain quantity, regardless of content. But then why do they want to have the right to segment traffic by content type? The opponents to ‘Net neutrality are not vying for a pro rated cost structure based on bandwidth consumption, but for a categorical schema of flat rates based on content types.

It is time for the CRTC to enforce their mandate and ensure that conduits don’t put eyes inside the pipes.

But then, once the CRTC is involved in enforcing ‘Net neutrality, how far are they from New Media Content Regulation? For this, we look to the Broadcast Act, which I will consider in Part II of this post.