Normative net neutrality: Milton Mueller on free association and free trade

Free as in free speech, free association, and free trade: Milton Mueller drafts an Internet governance paper using net neutrality as its central principle.

... as a normative guide to policy, network neutrality transcends domestic politics. The network neutrality debate addresses the right of Internet users to access content, services and applications on the Internet without interference from network operators or overbearing governments. It also encompasses the right of network operators to be reasonably free of liability for transmitting content and applications deemed illegal or undesirable by third parties. Those aspects of net neutrality are relevant in a growing number of countries and situations, as both public and private actors attempt to subject the Internet to more control. Because Internet connectivity does not conform to national borders, net neutrality is really a globally applicable principle that can guide Internet governance.

— Net Neutrality as Global Principle for Internet Governance, Milton Mueller, Internet Governance Forum, 5 November, 2007

Basically, instead of getting mired in discussions of bandwidth or technical methods of stifling, throttling, or censorship, let's get back to deriving net neutrality from general political and economic principles, which turns out to make net neutrality a convenient lens by which to view those principles and to apply them to the Internet.

The original concept of net neutrality was based on the end-to-end argument, which implies universal and reciprocal access among the users connected to the Internet. In my discussion of the definition of NN in Section 2, I will describe how this concept has become confused with efforts to regulate how network operators manage their bandwidth. This emerging redefinition of the concept, I will argue, is a damaging wrong turn and should be abandoned.

Once the confusion of NN with bandwidth regulation is overcome and the proper definition restored, it is easier to see the transnational relevance of the principle. Properly defined, the principle of network neutrality combines and integrates concepts of universal access to the resources connected to the Internet, freedom of expression, economic innovation, and free trade in digital products and services. The paper identifies three distinct ways in which the concept of network neutrality might attain a status as a globally applicable principle for Internet governance.

First, NN can be promoted as a global norm to guide Internet policies, whether those policies are implemented domestically or internationally. That is, assuming that we agree on what a NN policy is and on its beneficial nature, then NN proposals can be picked up by public interest advocates, industry advocates and policy makers in many different nations and promoted in their own domestic telecommunication policy arenas. There is already evidence that the concept is diffusing globally in this respect.

Second, the norm of "neutrality" can be extended to the Internet's technical coordination functions, which are global in nature. The coordination of Internet names and addresses, many believe, should be a neutral enabling function and not exploited for regulatory purposes. Debate about the applicability of this norm to ICANN's activities already plays a significant role in the politics of ICANN.

Third, the concept of "nondiscriminatory access," which underpins the idea of NN, is also central to the concept of free trade in goods and services. In the global information economy there is a close connection between a neutral Internet and nondiscriminatory market access. A concept of NN, therefore, could play a role in aligning the WTO regime with the global Internet governance regime. This aspect of NN is particularly important because it applies to state actors as well as to private network operators. On this basis, the paper concludes that the concept of a "neutral" Internet has global applicability in a variety of contexts relevant to Internet governance.

The paper concludes by describing the potential of NN to serve as a global principle, while also realistically assessing the obstacles to adoption and implementation such a principle would face.

Probably the same sorts of obstacles that any declaration of human rights faces.

-jsq