Ed. Note: This post by Prateek Surisetti is a part of the TLF Editorial Board Test 2018
Until recently, Internet Service Providers (ISPs) could not identify the type of data that was passing through their wires. But with the advent of a technology called “Deep Packet Inspection” (allows examination of data’s nature on the network), ISPs now have the ability to identify and consequently, selectively discriminate against data. Discrimination constitutes blocking, throttling speed or making access to certain data more expensive. A regime based on Network Neutrality (NN) eschews all such discrimination.
Further, discrimination can occur on commercial or political grounds. In this piece, I shall focus on the effects of commercial discrimination on activist speech. I argue that the effect on activist speech is a direct consequence of hampering innovation directed towards developing activist friendly platforms.
The most common form of commercial discrimination is through a “Two Tier System”, wherein content providers (CPs) pay the ISP for faster and cheaper access for its customers. Other CPs are relegated to a second lane which can be accessed by consumers at lower speeds or/and higher costs. By “CPs”, I am referring to website owners (e.g. Netflix, Wikipedia, Facebook, et cetera).
The other aspects of the NN debate that the interested reader could pursue are: (i) General effect on innovation and competition, (ii) Privacy concerns and (iii) Quality of Service/ Traffic Management. I have chosen not to deal with these issues and focus entirely on the effects of commercial discrimination on political speech.
TWO TIER SYSTEM AND THE GENERAL DEBATE
Prior to proceeding to the central thesis, it would be beneficial to briefly review the nature of the Two Tiered system and the general discussion surrounding it. Though it is not necessary to understand the system in all its technical glory, we do need to have a brief understanding of the resultant effects of said technology.
Up until recently, ISPs ran the internet on the “Best Effort” system. Under the “Best Effort” system, ISPs didn’t attempt to interfere with the traffic. All user requests for all websites were treated equally and as a consequence, data from all sources occupied the same amount of the bandwidth.
But with the advent of technologies that allow ISPs to identify the nature of data, it has become possible to tamper with the data flow. As a consequence, ISPs have proposed a tariff system, wherein CPs can opt to either pay a greater tariff and allow their consumers to access their content relatively faster (“Fast Lane”), or shell out a lower tariff and let their consumers suffer lower access speeds.
In order to understand the above system, the most commonly used analogy is that of roads. Under the Two-Tier system, motorists (CPs) could pay a larger tariff to get access to a dedicated special lane for those who can afford it, while the rest could pay a lower tariff and content themselves with being relegated to the common portion of the highway.
The direct consequence of such a system is quite obvious. The CPs paying the higher tariff could ensure a better experience for their consumers via faster access speeds, while those CPs unable to shell out with have to suffer the consequences of being unable to provide a higher quality of experience for its consumers.
We need to understand that the creation of two standards of experiences, decided purely by financial might, will naturally push the CPs with lesser capital outside the preferences of the end user. In other words, the financially well-endowed CPs will dominate the market.
Now that we have understood the general effect, in the next section, we shall look into the specific effects of an Anti-NN regime on political speech. But before that, in the interest of providing a counterview, let us briefly peruse the arguments in favour of data discrimination.
Firstly, ISPs suggest that with increasing flow of data, coupled with a limited scope of increase in expensive infrastructure (wires, wires and more wires), it would be in the best interests of the end users to allow ISPs to interfere with data flow and direct traffic efficiently.
Secondly, ISPs claim that it is unfair to allow CPs like Netflix, who use a disproportionately large portion of the bandwidth, to get away with paying the same tariff as others, despite using a much larger extent of the provided infrastructure.
Thirdly, ISPs suggest that the higher revenue generated through the Two Tier system would allow for them to invest in infrastructure, and consequently improve the experience for the general public (end users). Counter arguments have also been made regarding the absence of incentive for ISPs to invest in infrastructure, if they could get make profits through relatively inexpensive traffic management.
Now that we have acquired a basic understanding of the issue, I shall proceed to discussing the effects of net neutrality on political speech in Part II.
COMMERCIAL DISCRIMINATION AND ITS EFFECTS ON POLITICAL SPEECH
As discussed in the earlier section, I argue that the larger CPs will appropriate the internet. Financially strong companies will be able to dominate the market by paying up and ensuring cheaper and faster access to their content. Naturally, consumers would not like to pay more or access other content at slower speeds. Therefore, a handful of CPs will be catering to the majority of the users.
But, what are the consequences of the same on political speech?
Since most of the public will be using these platforms, political activists will be forced to use these platforms as well, in order to reach a large audience. As a result, they will have to conform to the “Terms and Conditions (T&Cs)” of these popular platforms. And this is not always in the activists’ best interest.
Consider the example of “Michael Anti”. A reputed Chinese journalist, a Neiman Fellow, published and interacted with the public under the pseudonym of “Michael Anti”. Given that the Chinese government is quite brutal towards dissenters, it is not surprising for “Michael” to have done so. But in 2011, his Facebook account was deleted on grounds of violating Facebook’s “real-name policy”. Since “Michael Anti” wasn’t the journalist’s real name, he violated Facebook’s policy of registering with their real name.
Now, let us delve into the effect of such an action. The Chinese journalist, almost an activist, needed to continually interact with not only his reader base, but also other writers and publishing houses. By deleting his account, through one arbitrarily applied action, the social-media giant demolished the journalist’s contact base.
Adding to the issue of limited choice is the fact that platforms such as Facebook rarely make decisions keeping political activists in mind. Sometimes these companies take decisions which have dire consequences for the security of these activists. For example, Google, in 2014, made all of Google+ user’s email contacts public, forcing anonymous activists in repressive regimes to either delete their account or face life threatening consequences.
Apart from political activists in repressive regimes, even those individuals or entities desirous of contributing under the comfort of anonymity are greatly hindered by such activities.
Consider a scenario wherein a writer wishes to maintain anonymity for shielding himself from vitriol from the public on account of views on sensitive topics (caste, abortion, etc.), has his identity compromised by a major company’s decision. As I have already established in an earlier section, that in the absence of a NN regime, financial heavyweights are going to play a much greater role at the internet at the expense of lesser endowed entities, it follows that anonymous writers will find it far more difficult to find a platform that addresses their concerns.
Though it is true that these activists can create their own platforms, their platforms will not be able to compete with those of the larger CPs in an Anti-NN regime. As mentioned earlier, end users would not like to access platforms at lower speeds and/or higher costs.
Furthermore, free speech and privacy concerns hardly seem to be a priority of the market. Chinese social networking site renren.com, despite being heavily censored, continues to enjoy a sizeable customer base, while Duckduckgo.com is far behind in the race against Google, despite having greater respect for user privacy. All this goes to show that one cannot rely solely on the market to safeguard certain values which are beneficial for society. Companies like Duckduckgo.com are not able to compete effectively even in the current NN regime, and therefore, one can safely conclude that such companies will suffer more in an Anti-NN regime.
It is pertinent note here that this example was only to illustrate the market’s general reluctance to uphold certain values. I am not arguing (at least, over here) for legislation to regulate the functioning of Google or Facebook to further free speech and privacy, but for legislation which ensures a level playing field for developers of alternative platforms that espouse these values. As an aside, arguments could be made to regulate major private platforms, such as Facebook, given their vital role in furtherance of speech, but as mentioned earlier, I shall leave that for another day.
Moreover, even if we were to assume that these financially backed CPs would be sensitive to activists, the situation would be akin to rule under a benevolent dictatorship. While a dictator may treat his subjects well, there is no counter balancing power that the subjects can use. They are dependent on the dictator’s whims and wishes. Similarly, a “benevolent” CP could change its T&Cs at any point of time. This would mean that activists using such platforms have a sword hanging over their head at all times.
Hence, activists should be afforded the chance to create or join platforms they trust and whose T&Cs suit their needs. While this is technically allowed for in an Anti-NN regime, they should also be given the opportunity to have a fair chance of connecting with their audience through their desired platform. A regime built on the principles of NN would better ensure the latter.
Moving on, it is pertinent to note that weak democracies and autocratic governments would be glad to jump onto the Anti-NN bandwagon in order to legitimize outright political censorship. Repressive regimes would be quick to claim that their internet regulation is in line with the western world’s regulatory laws. They would use the façade of commercial discrimination to further their political agendas. In the past, governments have taken down political speech merely because a copyrighted song was playing in the background and it is not too farfetched to predict that the absence of NN regime would make life easier for such governments.
In fact, given the additional privacy concerns, I would advocate for a ban on the usage of “Deep Packet Inspection” technology. Even the possibility that governments can use this technology for political censorship should frighten proponents of free speech and privacy. Or at least, the technology should be banned until greater transparency in corporate functioning is achieved.
Now, let us briefly consolidate the key contentions and discussion
The analytical chain of thought runs as follows:
The lack of NN legislation would result in the domination of the internet by heavily financed companies. This domination would in turn result in drawbacks for political activists because these companies rarely cater to them and as a result, their T&Cs are rarely convenient. Even if they do, it would be akin to rule under a benevolent dictatorship. Therefore, it is imperative to create conducive conditions for innovation concerning activist-sensitive platforms and I argue that enacting NN legislation would help create such conditions.
Additionally, I argued that the market could not always be trusted to uphold significant constitutional values, such as privacy and free speech. Hence, it wouldn’t be ideal to sacrifice these values at the market’s stake. At the least, nascent platforms that support political speech should not start at a disadvantage to financial heavyweights.
Finally, I contended that commercial discrimination could be used as a legitimizing argument for governments indulging in political censorship and ended by calling for a ban on Deep Packet Inspection Technology until greater transparency in corporate functioning is achieved.
Rebecca MacKinnon, Consent of the networked (Basic Books) (2012)