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Privacy laws will guarantee net neutrality, says legal expert

Good privacy laws make any breach of the principles of net neutrality unlawful, a US law professor has said. In the US, that means that wiretap laws are likely to make any prioritising of traffic illegal, said the expert.02 Oct 2008

Advert: free OUT-LAW Breakfast Seminars - 1. Making your contract work: pitfalls and best practices; 2. Transferring data: the information security issuesA 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.