Platt Perspective on Business and Technology

Deciphering net neutrality and the concept of an open-range internet 7

Posted in business and convergent technologies, in the News by Timothy Platt on April 8, 2015

This is my seventh posting to a series on the contentious topic of net neutrality (see Ubiquitous Computing and Communications – everywhere all the time 2, postings 299 and loosely following for Parts 1-6.)

I find myself writing this at a point in time (on February 6, 2015) when it looks like the United States Federal Communications Commission (FCC) is going to rule that internet access should be regarded as and regulated as a basic essential communications utility, much as telephone service is. I fully expect that this bare-bones decision will have been formally made and announced before this posting goes live. But that still leaves the real work of translating intent and overall policy decision into day-to-day actionable process, and into actionable performance benchmarks that could be used in evaluating real world online service provider and other involved business practices, and how they do or do not comply with this new regulatory framework. Given the complexity of the law, and even just within the United States for regulating utilities, and given the additional complexities of shoehorning online connectivity with its sometimes unique features and requirements into this framework, that decision and its formally stated ruling should only be considered a first step in what will be a long and drawn-out process, and probably one that will be significantly reshaped in the courts at that.

I wrote at the end of Part 6 to this series that I would continue its discussion here, by considering, among other possibilities:

• The challenges that would arise if, in keeping with President Obama’s recommendation (n.b. as of when I wrote that posting), that internet access per se should be governed under Title 2 of the US Communications Act of 1934 as amended.

That essentially means the FCC regulating internet accessibility and bandwidth allocation as a utility, so that approach lies at the heart of what Tom Wheeler, the Chairman of the FCC has just proposed actually implementing. But Wheeler’s recent announced regulatory intentions for this would go even further than what President Obama has requested be considered (see the February 4, 2015 New York Times news story: F.C.C. Plans Strong Hand to Regulate the Internet and this same date article from Wired: FCC Chairman Tom Wheeler: This Is How We Will Ensure Net Neutrality.)

• Wheeler has now stated that at least in his opinion, the FCC’s rulings on net neutrality should explicitly include personal privacy protection provisions, and also provisions for ensuring effective internet access for people with disabilities and for those living in remote areas, at least within the United States where his agency holds sway.
• International regulatory oversight would be needed in order to ensure these protections in the developing world, as discussed here in Part 5 of this series and in Part 6.
• But given the impact of United States activity and involvement in the internet and on all levels, and given the legal history of the European Union and other Western bodies to actively and proactively support personal privacy rights, among other information sharing and control issues, it is likely that other significant national and multinational participants in this debate would follow a similar course.

I stated above that this is likely to be resolved, at least for the official initial release of an FCC ruling on net neutrality this time around, before this posting goes live. The expected date for that ruling to be publically announced, at least as of this writing, is currently set for February 26, 2015. It is always possible that lobbying-driven legal and other challenges could postpone that date but a formal decision will be announced on this soon. And then the real action on this will begin, converting regulatory intent into actionable regulatory process and detail. I have already mentioned the likelihood of legal challenges, and I add legislative challenges from the US Congress. But for purposes of this discussion, let’s simply assume that some version of a ruling is passed, and with whatever adjustments from whatever sources made until it is finally at least widely enough accepted to be able to function and regulate. And that brings me to the core area of discussion that I would address in this posting: the challenges of legal and regulatory systems always being reactive, and particularly when addressing very rapidly evolving and disruptively innovatively changing contexts. And I write this with that next step of turning regulatory intent into detailed regulatory statute in mind.

The specifics of the rulings that the FCC arrive at for protecting net neutrality in the here and now and for the immediate future, will begin to drift from relevancy as soon as they are drafted. And at least parts of them are likely to be outmoded before they can go into effect as a legally mandated regulatory framework. There are a variety of reasons for this, and I would touch upon at least a few of them here as food for thought moving forward.

• The internet may have begun, and certainly as a publically involving system, as following a central publishing model, with a smaller number of web sites and other centrally organized information sources, and a larger number of primarily passively receiving and absorbing audience members. And most of what I at least have heard of the current debate over tiered pricing and bandwidth access has been presented as if that were still the dominant face of the internet in its here and now. But that is no longer true, and even when just considering businesses and other organizations that connect online, to at least in significant part centrally publish still. The audiences they seek to reach, inform, influence and do business with are all actively communicating online too, and about those businesses as much as they are about anything else. And they demand a voice in this too. And these conversation flows are increasingly ubiquitous, from anywhere to anywhere and at any time. Net neutrality has to be built and maintained with that expanded reality in mind.
• Just considering the anywhere to anywhere ubiquity of the ever-more interactive internet, that has brought whole new business types and even whole new industries into this arena, and in constantly evolving new ways. Consider wireless telephony – the smart phone would not even exist, there would be no need for it, if not for the internet and pressures to provide rich ubiquitous interactive connectivity of all sorts, all the time and to essentially everyone at very affordable prices.
• One of the complex sets of issues that the FCC is likely to at least begin to address in its upcoming ruling and its implementation is what is coming to be called the online interconnect industry, and all of the behind the scenes infrastructure technology providers that stand between the web site or social media server, for example, and the people with their smart phones, tablets, laptop computers and more who connect into and actively stay involved, and both with businesses or other organizations and with each other.
Google Glass might turn out to be a 21st century cyber-Edsel before it can (finally) be fully, effectively marketed and widely sold. But wearable computer and communications devices that blur the line between computer and communications to insignificance and that are ubiquitously and unobtrusively there and on, will both widely arrive and become so routinely accepted so as to fade into the background for their mundane commonality. This will definitely change what net neutrality has to mean in actionable practice if it is to remain relevant to actual need.
• And so will our developing internet of things, where the number of active online nodes will expand out into the many trillions – quickly and in ways that both inform our lives and in ways that carry every conceivable form of information about us while doing so.

The law is, or rather it certainly can be an ass; it is reactive by nature, often hobbled by partisan ideological forces, and it is usually if not always at least somewhat behind the curve and a bit out of date and certainly where that really matters, where events and contexts change rapidly – and it is essential if society is to function smoothly and with any chance of openness and fairness. (Nota bene: I admit that I thought of a passage from Charles Dickens’ novel Oliver Twist while writing that: “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass – a idiot.” Dickens, of course, did not invent that sentiment.)

I am going to end this posting, and for now at least this series as well, by offering a few thoughts on how the FCC ruling that is finally arrived at and agreed to, might best be translated into enforceable statute and rules of action. And my goal in that is to offer at least a few ideas on how to improve the shelf life of this soon to be ruling, before it drifts far enough into irrelevancy so as to need significant updating or even outright replacement.

• Keep the details of the core implementation regulations for this focused on what the technology seeks at a high level to accomplish and on access and availability goals per se. And do not seek to regulate the specifics of any particular technology that may be necessary for internet connectivity now, but that will be replaced and both evolutionarily and by disruptively new and divergent technology that follows equally new and novel connectivity paradigms. Any current state of technology available now will pass into old and legacy, and into a no longer used and irrelevant status, and so will any regulatory wording that is specifically drafted in terms of it. This is vitally important but difficult in practice to achieve, and certainly when attempting to draft operational rules for the here and now that can be practically applied, but that have the flexibility to accommodate change that cannot really be anticipated in any real detail.
• Make any more technology-specific implementation details, a matter of more secondary documentation that would be offered to help involved parties to make sure their systems are regulatory compliant in accordance with the core implementation guidelines. And update these interpretation best practices support documents when and as needed, and with legal oversight in drafting them, but hopefully without burying them in legal jargon for the benefit of anyone who would have to use them.
• And where possible and feasible, focus on specifying what not to do, spelling that out with clarity, leaving open the door to new-approach innovations that would not in and of themselves intrinsically challenge the overall goals of net neutrality but that do not exist yet.

And I finish this discussion, at least for now with those points stated, though I am likely to come back to these issues in future postings and series too. Meanwhile, you can find this posting and related at Ubiquitous Computing and Communications – everywhere all the time and at its Page 2 continuation. And I also include this in my In the News postings list.

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