A debate has raged in the US over net neutrality, the
principle that all internet traffic should be treated equally. ISPs
have proposed charging producers for faster access to their
subscribers.
University of Colorado law professor Paul Ohm told OUT-LAW Radio that ISPs' plans to charge
producers a fee so that their content reaches customers at better
download speeds than rivals' content would not be possible under US
wiretap laws.
"Any time a provider wants to discriminate between a [data]
packet and another packet they first need to know something about
those two packets," said Ohm. "They first need to scrutinise or
surveil those two packets."
"There's a tight connection, I argue, between privacy law and
net neutrality. The idea is that if there is a law that prohibits
certain types of scrutiny, that very same law, quite accidentally,
will also prohibit certain types of discrimination," said Ohm.
Ed Whiteacre, chief executive of US telecoms giant AT&T,
ignited the debate in 2005 when he talked of the high cost of
building and maintaining the kind of fast networks that consumers
demanded as use of video, live gaming and other bandwidth-hungry
applications grew.
He suggested that it might be appropriate to charge companies
who wanted guaranteed fast connections into his customers' homes.
His comments provoked outrage from campaigners who saw the creation
of fast and slow lanes on the internet as a betrayal of its
founding principles.
US legislators have been presented with proposals for laws that
enshrine net neutrality in law but have rejected them. Google
executive and one of the internet's founders Vint Cerf has said
that Google would be prepared to use US antitrust law to enforce
its equal rights of access to people's homes through their internet
connections.
AT&T itself agreed to enshrine the principles of net
neutrality in a letter to regulator the Federal Communications
Commission (FCC) when it acquired competitor Bell South
Communications.
"AT&T/BellSouth commits that it will maintain a neutral
network and neutral routing in its wireline broadband internet
access service," said a letter to the FCC from Robert Quinn, senior
vice president of AT&T's regulatory division in 2007.
More recently, ISPs have been involved in the 'shaping' of
internet traffic to ensure what they see as a fairer distribution
of network resources. Some ISPs see a small number of very heavy
users of peer to peer (P2P) file-sharing technology as using a
disproportionate amount of the available bandwidth and throttle the
bandwidth available to users of that technology. Critics of those
tactics claim that it undermines net neutrality.
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