The Real Digital Divide: Does Australia need net neutrality?

A world without neutrality. Electronic Frontier Foundation,
A world without neutrality. Image: EFF, CC

What is net neutrality?

While it has not yet been implemented in Australia, network neutrality is a powerful, regulatory force against traffic discrimination. Coined by American professor, Tim Wu, in 2003, the term denotes the principle that Internet Servers Providers (ISPs) should treat all data equally, without throttling, prioritising, or blocking content based on its source.

The benefits of state-sanctioned neutrality regulations have been established in scholarship and empirical evidence alike. Successful applications of the concept around the world demonstrate that a free and uncensored digital landscape is supported when content providers pay the same amount for access to consumers (Litan, 2010).

Although arguments against the application of net neutrality in Australia must be given weight, a reflection on basic tenants of fairness and equal access, as well as an analysis of censorship, economisation and the inherent flaws of popular counterarguments, will nonetheless reveal that introducing the regulation is the best option for Australia.

What is net neutrality? Image: IPVanish, CC BY-ND

 

Arguments in favour of net neutrality

Historical basis                                                               

The argument in favour of net neutrality rests on the fundamental notion that service providers should not act as ‘gatekeepers’ of the internet or interfere with the user experience (Denardis, 2015).

Discussions about net neutrality began in the United States, where freedom of speech and information have always been primary concerns (Schewick, 2017). Although it was not historically possible, issues regarding net neutrality arose when new technology allowed ISPs to inspect the content of data ‘packets’ and thus discriminate against them (Denardis, 2015, 145).

A timeline of net neutrality. Source: The Verge, CC 

Nunziato (2009) explains that over time, ISPs have enjoyed increasing control over user freedom, as they restrict or boost bandwidth for private purposes and economic gain.

When international governments discovered this, they implemented action to preserve the openness and neutrality of the internet. While the US introduced an Open Internet Order in 2010, Europe introduced the Open Internet Regulation in 2016.

Meanwhile, Australia has neglected to act.

The rapid evolution of the internet since its conception in the 1990s only creates a stronger basis upon which to create safeguards against partiality by ISPs (Barlow, 1996). While the development of an expansive cyber world has led to positive social change in the form of mass communication, it has also created unique problems (Havalais, 2013). Morrison (2009, 53) explains that the new issues that accompany rapid development of communication require equally innovative forms of regulation.

Australia’s prolonged silence on the issue is not only unique, but concerning, as the benefits of net neutrality arguably outweigh the consequences of its absence.

 

Censorship

ISPs have the critical ability to control online expression by discriminating against online content (Nunziato, 2009).

While overt censorship is not currently observable in Australia, Roberts (2018) explains that democracy suffers significantly when ISPs are given free reign to act on their private interests. During an Iranian election, for example, some websites were intentionally slowed in order to shape public discourse and sway the outcome (Roberts, 2018, 3).

This violation was simply one of the frightening consequences of failing to impose net neutrality.

The concept of internet openness is echoed in the Barlow’s (1996) famed Declaration of Cyber Independence  which was founded on the idea that the very purpose of the internet is to encourage open, cultural communication, without fear of censorship. The UDHR (1948) similarly states it is a human right to ‘seek and receive’ information ‘without interference.’

Denardis’ (2015) argument that ISPs should be the ‘middle man’ rather than the ‘gatekeepers’ of the internet is thus ideologically sound. In Australia, net neutrality may be essential as the dangers of digital censorship are altogether too severe.

Economisation of the internet

Money flowing. Image: GIPHY, CC

Not only does Australia’s current system make it vulnerable to abuse, but it suppresses competition in favour of economic extortion (Calzada and Tselekounis, 2018).

The internet is currently used as a business model in Australia, rather than for its original purpose of enabling social exploration and unrestricted political debate (Calzada and Tselekounis, 2018).

According to Denardis (2015), paid prioritisation economises the internet as it allows ISPs to charge businesses for premium broadband access. As there is a limited amount of bandwidth, to speed up one business’ connection, ISPs must disadvantage its rival.

This common practice creates an unfair landscape for internet access, as small, online services are unable to compete with their more profitable counterparts (Denardis, 2015). As a result, Australians may not necessarily receive sufficient access to the best or most popular content, but rather, to that which is created by companies with the deepest pockets (Finley, 2018).

Adopting net neutrality would remove the focus from paid prioritisation and ultimately boost innovation, stimulate investment and ensure competitive equality (Rimmer, 2017).

 

The influence of common carriage

Unlike most developed countries, Australia has neglected to officially recognise the importance of a neutral, free internet, as it has not categorised the service as a common carrier. Common carriers are services considered so essential that providers are incentivised by governments to provide open access for all members of the public (Cannon, 1931).

In accordance with Universal Service Obligations, responsibilities placed on certain companies like Telstra to ensure important services are reasonably accessible, a common carrier status would guarantee that ISPs deliver services on a non-discriminatory, neutral basis (Noam, 1994). As Wu (2003) astutely observes, equal access to communication technologies stimulates competition, encourages interconnection and supports modernisation.

While common carriage protects against inequity, the social value of this historical institution is eroded when internet services are provided by “contract carriers,” as in Australia’s current system (Winseck and Pooley, 2017).

Although Australia’s National Broadband Network aims to make the internet more accessible, Noam (1994) advises that the ongoing privatisation of the internet by unrestricted ISPs compromises this open internet access and necessitates the introduction of formal, anti-discrimination regulations.

 

Arguments against net neutrality

Support for the status quo

It is evident that net neutrality is an honourable aspiration in many respects. However, one must consider whether further regulation is necessary in Australia, where net neutrality has never been enacted.

Some argue that the imposition of new rules would be unpopular among Australians due to their longstanding enjoyment of “unmetered access.” Under current Australian law, domestic ISPs may manage bandwidth allocation over their own networks and even allow users to bypass data limits when accessing certain websites. For example, Optus, a popular mobile provider, offers unmetered access to Netflix and Stan in exchange for payment from the streaming services.

Opponents to net neutrality argue that Australians have historically relished the opportunity to pick and choose service providers based on their bandwidth allocation and ‘fast lanes,’  perceiving unlimited access as a consumer benefit, rather than an imposition (Golding and Selwyn, 2010).

However, as already established, there are inherent consequences of paid prioritisation (Roberts, 2018). Optus’ offering of the  Netflix ‘freezone’, for example, throttled rival streaming services to 1.5 Mbps, providing only SD picture quality.

Since Netflix’s deal with Optus, the company has conceded that the agreement was a mistake. Netflix CEO Reed Hastings explained that “net neutrality must be defended” and that ISPs must not “restrict, influence, or otherwise meddle with the choices consumers make” (Reilly, 2015).

Paid prioritisation arguably creates an unfair landscape for internet access as ISPs dictate whether content creators thrive or fail (Denardis, 2015). In the absence of net neutrality, deals between ISPs and content creators condone discrimination and contradict the classic Australian ideal of the “fair go.”

 

More about the great debate. Source: vlogbrothers, CC

Adequacy of existing regulations

There is a similarly pervasive counterargument that net neutrality is unnecessary in the wake of Australia’s strong, existing consumer protection laws.

Australia’s Competition and Consumer Commission (ACCC) is a self-professed world leader in protecting consumers. The government funded organisation is responsible for bringing legal action against carriers that engage in anti-competitive conduct such as blocking or throttling access to a competitor’s service.

While the regulatory body has historically instilled a culture of equality in Australia, the absence of formal, legal regulations may nonetheless be required. The ACCC (2015, 4) itself recognised that “Australia now seems like an outlier” on net neutrality.

This admission was made in a 2015 conference in which members of the ACCC failed to consider the benefits of adopting net neutrality, and made mediocre attempts to defend Australia’s current policies. Arguments included:

 

Rule changes are being proposed in the context of rapid change in internet use

“Net neutrality laws are complex to write” (ACCC, 2015, 4)

Net neutrality does not solve all economic issues

 

These arguments can be easily countered.

Although net neutrality would stop a large flow of profits to ISPs, Australia’s current system stifles economic growth as small businesses cannot afford to compete with those able to pay for prioritisation. Similarly, Jones (2007) reports that difficulties associated with legislating should not bar the enforcement of internet openness.

While the ACCC successfully regulates discrimination to an extent, the organisation’s existing authority may be too narrow to properly address network neutrality (Convergence Review, 2012). Additional regulations are thus necessary to foster true equality of access.

 

Recommendation

Net neutrality is an honourable ideology based on equality, fairness and free expression – principles that underpin modern perceptions of the internet. Although scholarly debate has polarised opinions and slowed the impetus of the movement towards neutrality, Australia, as with every nation, should reconsider the power it gives to privately-owned ISPs.

Ultimately, the introduction of anti-discrimination regulations in Australia would allow ordinary internet users to reap the cultural, economic and political benefits of a truly open and neutral internet, encouraging social growth and understanding into the future.

 

References

ACCC. (2019). About Us. Retrieved from https://www.accc.gov.au/about-us/australian-competition-consumer-commission/about-the-accc

Australian Competition and Consumer Commission. (2015). Net neutrality and the open internet. Retrieved from https://www.accc.gov.au/system/files/Breakout%202%20B%20-%20Warwick%20Davis%20%20ACCC%20%26%20AER%20Regulatory%20Conference%202015.pdf

Australian Federal Government. (2002). Convergence Review. Retrieved from https://www.abc.net.au/mediawatch/transcripts/1339_convergence.pdf

Barlow, J.P. (1996). ‘A Declaration of the Independence of Cyberspace.’ Electronic Frontier Foundation. Retrieved from https://www.eff.org/cyberspace-independence.

Calzada, J., & Tselekounis, M. (2018). Net Neutrality in a hyperlinked Internet economy. International Journal of Industrial Organization, 59, 190–221. https://doi.org/10.1016/j.ijindorg.2018.03.003

Cannon, E. N. (1931). What constitutes common carrier. Marquette Law Review, 15(2), 67-75.

Denardis, L. (2014) Internet Access and Net Neutrality. In The Global War for Internet Governance (pp. 131-152). New Haven: Yale University Press.

European Commission. (2016). Policies, information and services. Retrieved from https://ec.europa.eu/digital-single-market/en/open-internet-net-neutrality

Finley, K. (2017). The FCC Says Net Neutrality Cripples Investment. That’s Not True. Wired. Retrieved from https://www.wired.com/story/the-fcc-says-net-neutrality-cripples-investment-thats-not-true/

Havalais, A. (2013). The Engines. In Search Engine Society. (pp. 5-31). Cambridge and Malden: Polity Press. 

InformationWeek. (2007). Big Apple Weighs In On Net Neutrality; Speakers at New York City hearing urge Congress to legislate a free and open Internet. Retrieved from https://www.informationweek.com/big-apple-weighs-in-on-net-neutrality/d/d-id/1054622

Kenton, W. (2019). Common Carrier. Retrieved from https://www.investopedia.com/terms/c/common-carrier.asp

Litan, R., Singer, H., & Litan, R. (2010). Net Neutrality Is Bad Broadband Regulation. Economists’ Voice7(3), 1777–1777. https://doi.org/10.2202/1553-3832.1777

Morrison, A. (2009). An impossible future: John Perry Barlow’s “Declaration of the Independence of Cyberspace.” New Media & Society11(1-2), 53–71. https://doi.org/10.1177/1461444808100161

Noam, E. (1994). Beyond liberalization II: The impending doom of common carriage. Telecommunications Policy, 18(6), 435–452. https://doi.org/10.1016/0308-5961(94)90013-2

Nunziato, D. C. (2009) Virtual Freedom: Net Neutrality and Free Speech in the Internet Age. California: standford university press. Retrieved from: https://books.google.com.au/books?hl=en&lr=&id=S0UkDwAAQBAJ&oi=fnd&pg=PT7&dq=free+internet+and+net+neutrality&ots=ZD9RKJ5N9M&sig=pRznJThmLuID9aH1koQJ9knJKD4&redir_esc=y#v=onepage&q=unchecked%20control&f=false

Reilly, C. (2015). Netflix says it ‘should have avoided’ unmetered deals with Australian ISPs. Retrieved from https://www.cnet.com/news/netflix-says-it-should-have-avoided-unlimited-streaming-deals-with-australian-isps/

Rimmer, M. (2017). It’s Time We Had a Conversation About Net Neutrality. Australasian Science38(5), 39. Retrieved from http://search.proquest.com/docview/1930773233/

Roberts, M. (2018) Introduction: Porous Censorship. In Censored: Distraction and Diversion Inside China’s Great Firewall (pp.1-17). Princeton, New Jersey:  Princeton University Press.

Selwyn, L., & Golding, H. (2010). Revisiting the Regulatory Status of Broadband Internet Access: A Policy Framework for Net Neutrality and an Open Competitive Internet. Federal Communications Law Journal, 63(1), 91–139. Retrieved from http://search.proquest.com/docview/847444979/

Schewick, B. (2017). The FCC has always defended net neutrality. Why stop now?. Fortune. Retrieved from https://fortune.com/2017/11/22/net-neutrality-fcc-ajit-pai-verizon-comcast-att/

Telstra. (2019). Consumer advice. Retrieved from https://www.telstra.com.au/consumer-advice/customer-service/universal-service-obligation

The Conversation. (2019). Australia’s net neutrality lesson for the US. Retrieved from https://theconversation.com/australias-net-neutrality-lesson-for-the-us-22245

United Nations. (1948). Universal Declaration of Human Rights. Retrieved from https://www.un.org/en/universal-declaration-human-rights/

Winseck, D., & Pooley, J. (2017). A curious tale of economics and common carriage (Net Neutrality) at the FCC: A reply to Faulhaber, Singer, and Urschel. International Journal of Communication, 11, 2702–2733.

Wu, T. (2003). Network neutrality, broadband discrimination. Journal on Telecommunications & High Technology Law, 2(1).

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About Ella McCrindle 2 Articles
Second year media student putting on my big girl pants and trying to learn about tech...Film enthusiast, nature lover and huge fan of simply written academic journal articles.

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