Is Google and Verizon's Net Neutrality Proposal Socially Responsible - Research Paper Example

? Is Google and Verizon's Net Neutrality Proposal Socially Responsible? May 12th, The Verizon-Google Legislative Framework Proposal Google and Verizon represent two of the largest and most influential companies in America in information technology and telecommunications. That these two companies should have an advanced legal position on the proposed net neutrality regulations is to be expected, because such legislation would directly affect their business operations in the U.S. and internationally. Google and Verizon have been releasing joint statements since 2009 on net neutrality laws, yet the most extensive “joint policy proposal” was announced publicly on August 9th, 2010. (Patel, 2010) In this announcement, Google and Verizon listed three reasons behind their position: “to preserve the open Internet and the vibrant and innovative markets it supports” “to protect consumers” “to promote continued investment in broadband access” (Verizon-Google, 2010) Barbara Van Schewick of Stanford Law School has published a public law paper titled “Network Neutrality: What a Non-Discrimination Rule Should Look Like” (2010) defining network neutrality as relating to “the debate over whether governments should establish rules limiting the extent to which network providers can interfere with the applications and content on their networks.” (Van Schewick, 2010) She states that the European Union, the UK, France, Germany and the US are currently evaluating the implementation of net neutrality laws that would either prohibit or permit the carriers to discriminate between web traffic based on source, application, and other criteria undefined, as well as whether preferred treatment for some web content represents a problem for broadband policy. (Van Schewick, 2010) As there is a generally accepted position validating government interest and regulation of the issue on claims of the “public good,” net neutrality in this essay will refer primarily to legislative attempts that prohibit content discrimination by carriers and internet service providers. This essay will further analyze the Google-Verizon “joint policy proposal” by using the standards established by Barbara Van Schewick in “Network Neutrality: What a Non-Discrimination Rule Should Look Like” (2010) as a reference for an ideal “public good” legislation, critically analyzing her reasoning and assumptions in the process. In summarizing the position taken by Google and Verizon vs. arguments for the public good, the essay will also consider popular media commentary including tech blogs such as CNET, TechCrunch, Endgadget, and Popular Science as examples of the broader public consensus and IT community viewpoint on these proposals. Finally, the position paper produced by the Electric Frontier Foundation (EFF) will be referenced as an example of the civil libertarian view. In this manner the corporate proposal as advocated by Google and Verizon will be analyzed in the context of mainstream tech community views, the “public good” legal standard advocated by Stanford Law School, and also from the civil libertarian perspective in constitutional law. This is necessary because the corporate viewpoint claims to be acting on behalf of the “public good” but may in fact be protecting or furthering the interests of company profit over other issues that are important to a pluralistic society. Consumer Protections: “A broadband Internet access service provider would be prohibited from preventing users of its broadband Internet access service from— (1) sending and receiving lawful content of their choice; (2) running lawful applications and using lawful services of their choice; and (3) connecting their choice of legal devices that do not harm the network or service, facilitate theft of service, or harm other users of the service.” (Verizon-Google, 2010) The use of the term “lawful” repeatedly in this first section highlights one of the main issues under contention, which is that Google, Verizon, and other big corporations will use “net neutrality” in a way that is Orwellian, i.e. implying that they are the champions of consumer liberty but these new laws or regulations will actually be used to monitor for “unlawful” file sharing that infringes copyright laws. This is a position long advocated by the record companies, Hollywood studios, and other publishers of web content that is frequently pirated. Under this clause, the carriers would be permitted to sniff traffic for copyright violations or implement some policy of monitoring content and downloads in order for them to determine what content is “lawful” and what is “unlawful”. In this interpretation, “net neutrality” is strictly contingent on the legality of the content, and copyright infringing file-sharing appears to be the hidden goal of the distinctions. That Google and Verizon may be able to generate higher profits by partnering with record companies, publishing houses, and movie studios for higher profits if the “feature” or “favor” their content is one possible motivation to consider. This would also give the companies a greater incentive to further marginalize file-sharing apps and websites. Google and Verizon cannot be technically faulted on this position, because it is in accordance with legal standards as they exist now. However, there has been a broad shift in consumer trends related to MP3 sharing, eBooks, digital video, and other forms of online content that is simultaneously being sold by Google, Verizon, and their affiliates in some form in partnership with the copyright holders. Part of the “freedom” of the internet involves the sharing of information that infringes these copyrights, and this occurs on a huge scale domestically and internationally. Each degree of marginalization or discouragement of piracy, file sharing, and copyright infringement by the carriers may be seen as a victory for the publishers. However, socially there is a counter-argument that consumer file-sharing in movies, music, games, software, eBooks, DVDs, etc. represents not widespread theft but a need for copyright laws to be renegotiated in the digital era to reflect a new medium. Unfortunately, one reason why America has so many consumer watchdog and public advocacy groups is because the corporations cannot be trusted to make policy in the “public good,” and that their interest in legislation is always self-serving. In this instance, the first clause of the joint proposal signals that it will be used against file sharing and copyright infringement, even though by nature “net neutrality” would not discriminate upon such content. In this regard, there appears to be a significant use of “doublespeak” in the legal terminology, and web users are not interested in having the State be the arbiter and approver of all web content. This brings up the wider issue of what “net neutrality” should mean technically or legally. In defining “net neutrality” ideally, the term would be used as a synonym and interchangeable from “free speech” though what is at issue is data content and not self-produced vocal content. Censorship is an issue regarding this because of the strict insistent on “lawful” content, but in actuality the position of Google and Verizon is little different at all from what is accepted as law today. Certain types of speech or web content is banned in narrow circumstances related to the protection of the public good, and the protection of copyright holders. Google and Verizon’s plan comes at a time when electronic content is being increasingly “monetized” in digital publications and venues such as Amazon.com, iTunes, NetFlix, and other websites. The recording industry has long been advocating more of a crackdown by carriers on music piracy and MP3 sharing, and thus the Google and Verizon plan on surface appears to be a backdoor way to implement more exhaustive control on file-sharing through the carrier system, but this should be recognized as a “false” net neutrality, rather than a “true” net neutrality that would protect even the sharing of copyrighted material. Since file sharing is currently technically illegal, the Google-Verizon plan would only give more force and legal opportunity to implement a further restriction of this activity and then monetize the copyrights themselves through commissions on their own networks. Whether file sharing should be legal or illegal, tolerated or prosecuted, is a major issue, because internet piracy is claimed to cost billions of dollars in lost sales to publishers and copyright holders. The decline of the music industry since the widespread advent of MP3 sharing services is pointed to as an example of the social harm, and thus suggests that file sharing should be treated as a crime. However, the internet is founded on a philosophy of “information will be free” and the free-exchange of information is the highest value or underlying premise of the majority of web publications. File sharing advocates suggest that copyright laws need to be renegotiated to reflect a digital medium that did not exist when the laws themselves were first enacted. Ultimately it is only a profit motive or content producers and artists wanting to be paid for the sale of copyright material that is being freely shared. The internet has the opportunity to act as a vast library of content, but the majority of books, music, and film cannot be made publicly available because of the profit motive in preserving traditional copyright laws. Whether this benefits society at large or just one industry and sector is a larger question of the social good related to file sharing and its prohibition, and there may be no overwhelming consensus on the issue in the public at large. A wider civil rights and civil liberties question is whether the carriers have the right to monitor individual web traffic to see what the content contains, as in private mail, personal messages, or what a person chooses to download. Legally, this has been related to wiretapping laws, but the digital age, telecommunications, the internet, and terrorism scares have all combined to lead to widespread collusion in wiretapping between the telecommunication companies and the U.S. government. Civil libertarians suggest that this activity when combined with a strict legalistic interpretation of web content could lead to a radical altering of the internet as it is known today. Web freedom advocates suggest that whatever monitoring and limiting devices the telecoms implement, the web community of programmers, hackers, file sharers, pirates, etc. will develop new technologies that circumvent the monitoring, file encryption, DRM code, and other measures used to protect copyrights. A great deal depends on the policies implemented by the legal system to enforce copyrights, while attempts by the record industry to prosecute file sharers as an example in public trials have created a backlash that leads for further calls to reform copyright laws. The lack of any explicit reference to file sharing and copyright other than existing legal standards suggests that neither Google nor Verizon have an interest in advocating a wider reform of copyright laws, though Google Books and Google News have both been involved in determining legal precedent in these areas. Popular Science addressed these issues when it noted in its report on the Google-Verizon proposal, that “blocking high-bandwidth sites like YouTube, giving preference to one streaming service over another (like only allowing Netflix's Watch Instantly vs. any other movie-streaming service), or blocking certain protocols like BitTorrent altogether” were come of the possible applications of the new standards. (Mahoney, 2010) As Google is obviously not going to be supporting a policy that leads to YouTube being blocked, and NetFlix is a rising star on Wall St., the blocking of BitTorrent and similar sites seems a much more likely outcome of the corporate net neutrality plan of Google and Verizon. Mahoney (2010) also notes, “will also theoretically prevent broadband providers from intentionally limiting the speed of all BitTorrent traffic, something they've shown interest in doing in the past to avoid clogging their network with copyrighted materials; the protocol can just as easily be used legally.” (Mahoney, 2010) Under this interpretation, the carriers as required by current copyright law would be able to block all BitTorrent file-sharing except for that which was non-copyright, open source, Creative Commons, or released by the copyright owner freely. This raises the larger civil liberties question of whether the carriers should be screening and monitoring content at all or taking a more active role in enforcing copyright infringement. This concern is reflected in Cindy Cohn’s legislative analysis of the proposal for the Electronic Frontier Foundation where she wrote, “The worst case scenario would be that, in allowing the FCC to regulate the Internet, we open the door for big business, Hollywood and the indecency police to exert even more influence on the Net than they do now.” (Cohn, 2010) The fact that file-sharing is at the heart of the issue of “true” net neutrality can be seen in the EFF’s statement that, “For EFF, the first test for a network neutrality proposal is this: would it have clearly prevented Comcast from interfering with BitTorrent? In the Google/Verizon proposal, because of ambiguous exceptions like the one that allows an ISP ‘otherwise to manage the daily operation of its network’, we can't be sure that that's true.” (Cohn, 2010) Unfortunately, the Google-Verizon proposal is not even as ambiguous as Cohn makes it out to be because it is clearly stated in the first clause that “sending and receiving lawful content” only is protected by this joint proposal. Whether or not Google and Verizon advocate a wider renegotiation of copyright law is not within the bounds of the statement. Yet, when this is applied to the EFF’s civil libertarian rule of “would it have clearly prevented Comcast from interfering with BitTorrent?” - the answer is an unequivocal no, as noted by Mahoney in ‘Popular Science’. (Mahoney, 2010) The carriers could shut down all “unlawful” file-sharing of copyrighted material, and in fact have even an arguable social responsibility to do so unless the copyright law is modified or changed. How to change copyright law to bring it up to date with the digital age is a much wider discussion than net neutrality in many ways, but “true” net neutrality must include the non-discrimination of file-sharing traffic or include a wider re-negotiation of copyright laws or they are going to be opposed and circumvented by the internet grass-roots community. As the Electronic Frontier Foundation wrote, “It still limits nondiscrimination to ‘lawful’ content without defining the term or giving any indication of who decides what is ‘lawful,’ opening the door to entertainment industry and law enforcement efforts that could hinder free speech and innovation Last year, the big media companies took advantage of similar language to push for a ‘copyright loophole’ to net neutrality that would have allowed them to pressure ISPs to block, interfere with, or otherwise discriminate against perfectly legal activities in the course of implementing online copyright enforcement measures and a similar loophole existed for law enforcement. So long as your ISP claimed that it was trying to prevent copyright infringement or helping law enforcement, it could be exempted from the net neutrality principles. This was the focus of EFF's comments to the FCC in January, 2010 and our Real Net Neutrality campaign.” (Cohn, 2010) What this essay has discussed as “true” net neutrality vs. the corporate position is thus the same as the “real” net neutrality campaign as advocated by the EFF. What remains is a larger interpretation, understanding, or resolution of the social issues concerning copyright law. For example, is it a greater social good to protect file-sharing or to protect the rights of copyright holders? The current legal framework would abolish sites and platforms like BitTorrent, PirateBay, and Limewire or force them to carry only licensed, copyrighted content like iTunes, Amazon, and Google. Google itself as a company attempted to build a library of the entire world’s booked scanned and placed online in searchable form for scholars, students, and general knowledge, but this was resisted by the authors themselves as copyright holders. Sadly, there has been no movement by the Library of Congress, UN, or other organizations to make a public library of the entire world’s knowledge available online for free. Yet, this cannot be done currently because of international copyright law, representing one of the major needs for a renegotiation of the legal framework for copyright in the digital age. Non-Discrimination Requirement: “In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.” (Verizon-Google, 2010) This clause is essentially a reiteration of the first point, because the distinction between “lawful” and “unlawful” content precludes any real compromise with the “true” net neutrality viewpoint that would not allow carriers to discriminate between data and content types in providing services. This is perceived as a major concession because it prohibits any discrimination between legal content, as in preferential treatment, yet as noted in further sections, the Google-Verizon joint proposal does not specifically prevent the telecommunications companies from building preferential service plans that prioritize NetFlix, YouTube, or any other sites, but it does mean that they cannot fundamentally discriminate against any legal content in the basic broadband plan. One strange aspect of this provision is that it only is stated to apply to cable broadband and not to wireless networks, a distinction that seems increasingly irrelevant or arbitrary as data networks and mobile computing expand. Endgadget states about this clause, “This is one of the big ones -- it prohibits wired ISPs from discriminating against any traffic or content in a way that harms competition or users. Any sort of traffic prioritization is automatically presumed to violate this rule, but ISPs will be able to argue some exceptions.” (Patel, 2010) This suggests that the mainstream tech community as represented by TechCrunch, Popular Science, CNET, Endgadget and other sites are more aligned with the corporate viewpoint of Google and Verizon in editorial tone, while the EFF and the civil libertarian argument is based in a more radical net grass-roots freedom movement. In testing these views against the “public good” argument advanced by by Barbara Van Schewick in “Network Neutrality: What a Non-Discrimination Rule Should Look Like” (2010), she writes: “A non-discrimination rule should meet the following criteria: It should protect the factors that have fostered application innovation in the past to ensure that the Internet can continue to serve as an engine of innovation and economic growth in the future. It should protect the factors that have allowed the Internet to improve democratic discourse and to provide a decentralized environment for social and cultural interaction in which anyone can participate. It should not constrain the evolution of the network more than is necessary to reach the goals of network neutrality regulation. It should make it easy to determine which behavior is and is not allowed to provide much-needed certainty for industry participants. It should keep the costs of regulation low.” (Van Schewick, 2010) Van Schewick’s first clause immediately makes it clear that she will be favoring an alignment with the corporate standpoint, for she emphasizes the internet as an “engine of innovation and economic growth” favoring the view of gratitude towards the corporations that provide this benevolently to society in the public good. She then focuses the argument of net neutrality on “democratic discourse” which can be seen as another way to rephrase “lawful” in the Google-Verizon statement or EFF critique. Net neutrality should not be an economic burden to the carriers and it should be based on easy to implement screening patterns for content to distinguish the “lawful” from “unlawful”. Finally, again she reiterates that the costs must be kept low for the carriers. Interesting about her legal argument of the public good is that the BitTorrent defense is largely absent. This interpretation can be seen as leaving the legislative decisions to the greater democratic populace to decide what the proper standards for copyright are and then to apply these in the corporate environment as required. It is based in a position that favors the corporate view over the civil libertarian argument inherently, though leaving open the path of popular reform or legal standards through the channels of government. Van Schewick makes another argument that applies directly to the BitTorrent case and the applicability of these restrictions to the carriers via anti-trust laws. She states, “To be anticompetitive, the behavior needs to ‘harm competition.’ For example, if a network provider excludes an application such as BitTorrent from access to the provider’s Internet service customers, this only constitutes ‘anticompetitive’ conduct under US antitrust law if it creates a ‘dangerous probability of success’ that the network provider will monopolize the nationwide market for BitTorrent-like applications. That the network provider’s customers cannot use BitTorrent, or that BitTorrent is excluded from a part of the nationwide market, is irrelevant in the context of antitrust law, but not in the context of the network neutrality debate that focuses on different types of harm.” (Van Schewick, 2010) Since neither Verizon nor Google are apparently in the same business as BitTorrent, there is no real liability for the carriers in restricting this traffic unless a “true” net neutrality standard is implemented. Thus in favoring corporate net neutrality, Van Schewick argues the position of the public good in the favor of carriers, telecoms, and IT companies over the civil libertarian view of the EFF. Since the mainstream editorial support of the tech blog community seems to back the Stanford view, and in turn wish to see their own work, programming, design, web content, video, blogs, etc. protected from copyright infringement, this community would seem to also favor the civil libertarian view out of ideological reasons counter to self-interest only. Politically, this suggests that the money of the corporations buys both political and editorial influence, but as such genuinely represents the economy and public good. The civil libertarian view is consistent with the constitutional view of free speech, but does requires a further re-negotiation of copyright law in order to be implemented, something that the same corporate forces are likely to resist because of the inherent loss that would mean to their social position and business plan. In this regard, the Google-Verizon plan seems to be a back-door route or “Trojan Horse” as the EFF calls it to introduce a “false” net neutrality standard under the rubric of a “true” net neutrality law and in doing so open up the ability for further screening of content restricted by copyright clauses. The other issues surrounding net neutrality really fail to attain the same level of significance as the BitTorrent issue and file-sharing, leading the EFF to place it as the central issue in the debate. (Cohn, 2010) Van Schewick (2010) asks rhetorically in her legal review of net neutrality, “Does it matter that there are alternative, non-discriminatory ways of managing the network that are not similarly harmful to the users of the file-sharing software and the providers of the software, while maintaining the quality of the Internet experience for the non-file-sharing users? I don’t think it matters under this formulation of the rule, but network neutrality proponents usually think it should.” (Van Schewick, 2010) In this regard, as a legal expert she is stating that only the anti-trust law and copyright law is really relevant here, and that unless legal standards change, the hopes and dreams of “true” net neutrality proponents are likely to be lost to the corporate position in a court of law. This is because the idealism of “true” net neutrality or “information will be free” is not a recognized aspect of free speech when compared to the legitimate rights of intellectual property recognized in copyright and patents. That the issues may be of less social importance than a cure for cancer or combating terrorism is not specifically the issue for the courts to judge, as these value judgments are related to the process through which legislation is made, not interpreted. In final review, the Google-Verizon proposal is only a suggestion to the FCC from the industry to adopt as a set of standards, and related to a larger debate on broadband, net censorship, electronic monitoring of data communications, etc. Van Schewick (2010) is particularly against the “case by case” review of net standards suggested in the Google-Verizon joint statement, and she argues for a broad standard that can easily be applied by telecoms out of their duty to the State but at the lowest cost possible. (Van Schewick, 2010) Her view is that the enforcement cost of public law should not be shifted to the corporations themselves, but they do have the responsibility of compliance with the law. This suggests that in attacking the major telecommunications companies rather than the file-sharers on an individual basis, the large corporate publishing interests and mass copyright holders who base their business plans on information monopolies and intellectual property laws may be able to force the carriers to implement a broad policy of monitoring and enforcement of copyright infringement on their internal networks. Without change or reform of existing copyright laws, there is little that the telecoms could do to defend their file-sharing users, even if they wanted to, unless they were to push for a broader reform of intellectual property laws internationally in the digital era. Since Google and the telecoms are more interested in partnering with copyright holders on the iTunes/NetFlix/Amazon model to profit from sales of electronic content, they have a profit motive also in advancing corporate net neutrality over a “true” or civil libertarian version. In final review, Google and Verizon cannot be faulted for taking a mainstream position that is fully in accord with existing copyright and anti-trust law, or for avoiding radical change of standards from a civil libertarian perspective, as that is simply not their social role as businesses. In order for a “true” net neutrality to result, there must either be a change in copyright laws or a prohibition on the determination between “lawful” and “unlawful” content by the carriers. This places the focus of the question on whether file sharing, piracy, and copyright infringement online should be targeted harder by authorities with a goal towards eliminating it entirely, or forcing the adoption of open source, Creative Commons, or other licensing for content freely distributed. Whether or not government should take a more active role in policing copyright infringement through the carriers themselves as the only solution is a major aspect of the Google-Verizon joint statement, but the companies themselves cannot be faulted for trying to position their operations to be in accord with legal requirements related to copyright and fair use laws. That Google as a corporation makes such a wide use and interpretation of “fair use” laws suggest that limited file sharing between friends or a personal network could be enabled under this standard, making any personal file sharing “lawful” within a limited range and thus ending the need to prohibit it. This is a wider interpretation of “fair use” in the digital media but it is also consistent with current practice. Google’s fair use of content from other publishers itself may be much larger than any individual engaging in file sharing. Just as individuals have a right to loan books, videotapes, DVDs, and other media they have purchased and own to other people, or even to make a limited number of copies of it, so too should these individuals be able to share digital copies of media that they have purchased. Yet, since the majority of file sharing on BitTorrent sites does not even pass this basis as a fundamental, it may be considered a limited solution. Nevertheless, an expansion of fair use exceptions under current copyright laws to allow for limited file sharing would eliminate the need to police and monitor web traffic, and further lead to an equitable resolution of the social issues relating to the net neutrality proposal. This would also resolve the issues in a way that is consistent with the EFF’s civil libertarian view and the standards of “true” net neutrality, allowing for carriers to meet consumer needs, reflect social values, and provide a fair service to all users regardless of their spending habits or content choices. An adoption of a corporate view of net neutrality without a compromise on the civil libertarian view related to free speech and file sharing may still be possible due to the power of money and corporations in negotiating public law, as well as the continued support of artists, writers, musicians, and programmers for intellectual copyright law protection for their works. This makes the negotiation of a definition of “public good” that includes file-sharing as “lawful” a necessary compromise, and a simple expansion of limited file-sharing for individuals along “fair use” principles would lead to a resolution that could be accepted as just and equitable to all involved. 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