The egalitarian nature of the internet is under threat, argues internet law professor Michael Geist.
Internet service providers (ISPs) always seem to get the first call when a problem arises on the internet.
Services offering calls over the internet could be disadvantaged
Lawmakers want them to assist with investigations into cyber crime, parents want them to filter out harmful content, consumers want them to stop spam, and copyright holders want them to curtail infringement.
Despite the urge to hold providers accountable for such activities, the ISP community has been remarkably successful in maintaining a position of neutrality, the digital successor, in spirit and often in fact, to the common carrier phone company.
Adopting this approach has required strict adherence to a cardinal rule often referred to as "network neutrality." This principle holds that ISPs transport bits of data without discrimination, preference, or regard for content.
The network neutrality principle has served ISPs, internet firms and internet users well. It has enabled ISPs to plausibly argue that they function much like common carriers and therefore should be exempt from liability for the content that passes through their systems.
Websites, e-commerce companies, and other innovators have also relied on network neutrality, secure in the knowledge that the network treats all companies, whether big or small, equally. That approach enables those with the best products and services, not the deepest pockets, to emerge as the market winners.
Internet users have similarly benefited from the network neutrality principle. They enjoy access to greater choice in goods, services, and content regardless of which ISP they use.
While ISPs may compete based on price, service, or speed, they have not significantly differentiated their services based on availability of internet content or applications, which remains the same for all.
In short, network neutrality has enabled ISPs to invest heavily in new infrastructure, fostered greater competition and innovation, and provided all internet users with equal access to a dizzying array of content.
Notwithstanding its benefits, in recent months ISPs have begun to chip away at the principle, shifting toward a two-tiered internet that would enable them to prioritise their own network traffic over that of their competitors.
The two-tiered approach is taking shape in various forms in different parts of the world.
In the developing world, where there is frequently limited telecommunications competition, many countries have begun blocking internet telephony services in order to protect the incumbent telecoms provider.
This approach, which has occurred in countries such as Panama, Oman, United Arab Emirates, and Mexico, reduces competitive choices for telecommunications services and cuts off consumers from one of the fastest growing segments of the internet.
In Europe, some ISPs have similarly begun to block access to internet telephony services. For example, this summer reports from Germany indicated that Vodafone had begun to block Voice over IP (Voip) traffic, treating the popular Skype program as "inappropriate content."
European ISPs have also faced mounting pressure to block access to peer-to-peer systems such as BitTorrent, which are widely used to share both authorised and unauthorised content.
The MPAA (Motion Picture Association of America) and the IFPI (International Federation of the Phonographic Industry) are pushing European ISPs to implement filtering technology to block services and sites that the associations believe are "substantially dedicated to illegal file sharing or download services".
In fact, the content industries have even suggested that European ISPs limit the amount of bandwidth that can be used by consumers.
Issues of priorities
Recent developments in the US and Canada suggest that ISPs may go even further in developing a two-tiered internet that differentiates between different types of services and content.
North American ISPs have also begun to use their network position to unfairly disadvantage internet telephony competition. For example, Canadian cable provider Shaw now offers a premium Voip service that promises to prioritise internet telephony traffic for a monthly fee.
The potential implications of such a service are obvious. The use of competing services will require a supplemental fee, while Shaw will be free to waive the charge for its own service.
In the US, earlier this year at least one ISP briefly blocked competing internet telephony traffic until the Federal Communications Commission ordered it to cease the practice.
While ISPs once avoided content intervention, even that now seems possible. This summer, Telus, another Canadian ISP, blocked access to a pro-union website named Voices For Change during a contentious labour dispute.
The company has since indicated that it was a one-time event, though in the process it also blocked more than 600 additional websites from the U.S. and Australia hosted at the same IP address.
Canadian customers of Rogers, Canada's largest cable ISP, have speculated for months that the company has begun to block access to BitTorrent as well as the downloading of podcasts from services such as iTunes.
While Rogers initially denied the charges, it now acknowledges that it uses "traffic shaping" to prioritise certain online activity. As a result, applications that Rogers deems to be a lower priority may cease to function effectively.
Moreover, blocking services, websites, and certain applications may not be the end game. Some ISPs see the potential for greater revenue by charging websites or services for priority access to their customers.
In the US, BellSouth Chief Technology Officer executive William L Smith, recently mused about the potential to charge a premium to websites for prioritisation downloading, noting that Yahoo could pay to load faster than Google.
Reports last week indicated that BellSouth and AT&T are now lobbying the US Congress for the right to create a two-tiered internet, where their own internet services would be transmitted faster and more efficiently than those of their competitors.
These developments should send alarm bells to internet companies, users, and regulators worldwide.
While prioritising websites or applications may hold some economic promise, the lack of broadband competition and insufficient transparency surrounding these actions will rightly lead to growing calls for regulatory reform that grants legal protection for the principle of network neutrality.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law.