try by new players with new ideas and innovations.

This requires, I believe, a new commitment to transparency, openness, and sharing of information as much as possible. Network capacity should be managed in a way that brings users the benefits of differentiated services but at the same time network providers must be very transparent about:

˲ What consumers can expect with regard to how their connection will work and what services it normally should be able to run; and

˲ Their traffic management practices and how those practices are likely to affect consumers’ connections and the applications they are running.

I also think network providers should work together with those of us who informally keep involved in the Internet’s workings to voluntarily develop better information about the Internet’s overall health including capacity constraints and bottlenecks, the impact of a variety of applications on network capacity, and congestion problems. I think we can do this without violating proprietary information restrictions.

I believe applications providers

should also be transparent about how their offerings affect customers and their network connections. They should ensure customers know how the use of their applications might affect the speeds they have and the speeds of the connections of those in their neighborhood.

Finally, all participants in the broadband value chain—from the content portals and search engines to the applications providers to the network providers—should also embrace key principles designed to ensure consumers have control over and full use of their broadband connections to:

˲ Access any content on the Internet;

˲ Run any application they choose; and

˲ Attach any devices to their broadband connection that do not harm the network.

Government agencies should continue to actively monitor what is going on with the Internet. If allegations emerge regarding actions that are alleged to be harmful and anticompetitive, companies and consumers should be able to petition to government and

have the incident or practice investigated. Most importantly, all of us who care about the Internet and how it works— from those in the media, to academics, to bloggers, to industry players—must remain vigilant and ready to expose, discuss, and publicly upbraid what we feel are examples of “bad actors.”

No one would have predicted even five or six years ago many of the advances and services we see today on the Internet. Few even knew what a search engine was, for example, or had used Instant Messaging or viewed a video online. All of this happened in large part because the Internet has not been subject to the slow, cumbersome regulatory processes of government. Inserting government into questions around network management and the evolution of the Internet’s underlying technologies and applications will simply erode the cooperative spirit that has driven its evolution, substituting instead filings, charges, and countercharges. I shudder to see this happen.

David Farber ( [e-mail]) is distinguished career Professor of computer science and Public Policy at the school of computer science, heinz school, and department of engineering and Public Policy at carnegie Mellon University, Pittsburgh, Pa.

Rebuttal: Barbara van Schewick

DaviD faRbeR anD to preserve users’ ability to use the applications and content of their choice and the Internet’s openness to inno-

I both want

 

vation. We differ in how to get there.

Farber appeals to network providers “to embrace key principles” designed to protect users’ ability to use the Internet as they want and to disclose any limitations, including those resulting from the network providers’ traffic management practices. To a limited degree, this appeal would be backed up by the force of law: The regulatory regime he envisages would prohibit only “ anticompetitive” practices (in the sense the term is used in antitrust law). Consumers and companies could petition the government to investigate (and presumably ban) specific allegedly anticompetitive conduct after the fact.

I don’t think these measures will be

sufficient to protect users’ ability to use the Internet as they want and enable the Internet to realize its economic, social, and democratic potential. Appeals to shared values may have worked in the past, when most networks were operated by academic institutions. Today, networks are run by companies. Their goal is to create value for their shareholders, not to do what’s in the public interest. To the extent commercial network providers do have an incentive to block or slow down applications or content, appeals won’t be able to stop them.

I agree with Farber that network providers should disclose any limitations on users’ ability to use the Internet. As disclosure may expose competitive weaknesses compared to rival providers, network providers may need regulatory pressure to engage in it. While disclosure will support competition by helping consumers make more informed choices, it will not be sufficient to prevent discrimination: Disclosure

removes only one of the obstacles ( incomplete information) highlighted in my statement that prevent competition in the broadband services market from being effective in disciplining providers.

If appeals and disclosure alone are not sufficient to restrict network providers’ incentives to block or slow down applications, the scope of the regulatory regime determines whether network providers can act on their incentives. In this respect, Farber’s regime would only capture a subset of the cases in which network providers have an incentive to exclude applications.

First, discrimination designed to exclude unwanted content or manage bandwidth on a network may often lack an anticompetitive motivation. In the examples of content-based discrimination described in my statement, none of the content providers whose content was blocked was com-

 

36 CommunICatIons of the aCm | feBRuaRY 2009 | vol. 52 | No. 2