Rami Olwan

All About CyberLaw, Copyright and Developing Countries

Spam and Network Diversity, Does It Mean the End of the Internet?

Introduction

I will discuss below two problems that may have a severe effect on the development of the internet. Spam and network diversity relate in one-way or another to each other. Policy and communication law choices that we take today will have a far- reaching tremendous impact on the development and the future of the internet.

Spam is a real problem that relates to the security and reliability of the net. It is an abuse of the electronic messaging system that poses a great threat to our daily use and enjoyment of the internet. Users and Internet Service Providers (ISP) are annoyed with the bulk of received unsolicited e-mails that needs extensive financial resources and timeless efforts to be clear out. It is not only a growing nuisance, but relates much to deceiving, violating privacy and inflicting harm on computers and networks. Will spam mean that we will not enjoy the use of e-mails as we used to be in the future? What legal actions we should take to control spam and protect our computers and networks? What are the most appropriate technological measures that we should employ? Do we have the necessary enforcement procedures mechanism put in place to enforce traditional legal rules or spam laws against spammers? How can we deal with spam on the international level? All these questions and many others come to my mind when dealing with the spam problem.

Network diversity is another problem that is important to consider especially when we are witnessing the development of new packet sniffing technologies that tries to discriminate between different applications and determine accordingly what should be and should not be sent over the network. The remarkable success of the net is due to the end-to-end (e2e) design, and its open architecture standards. The openness has supported the creation of many innovative ideas and companies like Goggle, Yahoo! , e-bay, Face book, My space, Skype and many others as well. The idea that “information wants to be free” relates much to the concept of network neutrality and e2e principle.

The two problems are alarming and the discussion of what are the most appropriate actions that we need to take and the consequences that may arise as a result of our decisions is critical to keeping the internet innovative and vibrant. I will mention below some of the research and that is done in this area and provides my assessment

Assessment

The Action Plan for Spam in Canada entitled “Stopping Spam: Creating a Stronger, Safer Internet,” Report of the Task Force on Spam (2005) is a good starting point for countries that want to deal with the problem on the national level. It determines the practical measures that should be taken to control spam, and mention rightly that there is a need to combine the technological and legal measures together. The plan does not only deal with the problem from the local level, but also recognize the importance of international cooperation to control spam. It also mention without equivocal terms that Canada needs to have a new separate law for spam and can not rely on the several laws that can be applied on spam.

Network diversity is not a problem that is imaginative. Things are getting serious, and there are various discrimination behaviors taking place here and there by network providers around the world to control what is been sent over the network. Back in the 1990s technical people were only discussing the problem, but now things are changing and many legal scholars and policy makers are worried that if the law did not intervene we will begin witnessing a dark era for the internet and the closure of its openness. There is a conflict between corporate businesses that want to gain the maximum financial benefits and idealists that wants to maintain the internet open as it is used to be. Network providers on the other hand argue that they need to discriminate between certain applications, platforms, content and sites. They can no longer treat everything similar since our use of the network has changed, and they are doing everything for the sake of consumers. While I am not persuaded by their argument that everything they do for the sake of consumers, I think we do not really know what is happening and what actions they are taking by their own hands.

Tim Wu defined network neutrality in “Network Neutrality FAQ,”what is considered network neutrality since the term is confusing to many and it is not clear what it really covers. He elegantly mentioned that we should differentiate between the principle of network neutrality and a network neutrality law. This is really something we need since many policy makers confuse between the two and making the line clear will allow us to separate legislative from technical efforts. Wu did not elaborate whether network neutrality mean that network operators can block spam? Whether stopping viruses by network operators is considered unfair discriminatory practices that is within the reach of his definition of network neutrality? He did not answer whether it is fair in his opinion for large users of peer-to peer networks to be allowed unlimited bandwidth that may cause slower services for other users? He did not provide clear practical measures that we should take to address the legitimate concerns of network providers? He did not tell us what we should do to make the balance between leaving the architecture design of the internet open and continue in building an innovative internet by network and broadband providers?

Christopher Yoo on the other hand in “Keeping The Internet Neutral?” is in favor of deregulation. He supports network and broadband providers, and believe that they need to be helped not be condemned by laws that may restrict their crib on the network and this in the end will not be for the benefit of users and innovation. He basically prefers the wait- and- see approach. We do not have to do anything unless something is going terribly wrong. I think he is right and wrong at the same time. He is right in requesting more evidence that something is going wrong with the network that may affect the use of it, and that we can no longer look at the internet as we used to be when it was created. At the same time, he is wrong in leaving the matter to a later stage.  Maybe it is a better idea for the legislator to set the rules and intervene at the beginning so network providers know what they can do and what is their liability.

Robert Hahn and Scott Wallsten in their piece “The Economics of Net Neutrality,”add more concrete voices to Yoo’s argument, and study the net neutrality or diversity debate from the pure economic view. The economic theory adds an important perspective to the studying of the net neutrality debate and can provide a useful too to assist policy makers in reaching sound decision on whether regulation is needed. In order for us to follow the conclusions reached by Yoo, Hahn and Wallsten, we need to asses whether they have applied the economic theory correctly, and whether they have persuaded us that abandoning network neutrality is useful at this time to keep the internet innovative.

Jonathan Zittrain in his influential piece “The Genrative Internet” provided a fascinating outline of how the internet has evolved, how it is going now, and where it must be going instead. Basically, he argued that the important value in the internet that we should keep focusing on is “generativity”. Regulators, network operators and consumers are likely to insist on more restrictive internet that will cripple on the long run generativity and will cause potential threat to the future of the internet. To over come this, we should make certain changes (security) with less damage to internet generativity. Zittrain challenged our understanding of such concepts like the principle of e2e and network neutrality and call upon us to examine carefully our general internet wisdom and understandings. He wanted us to look at e2e and network neutrality principle as a mean in itself not as an end.

He educated us that we should not look to narrow issues that are not that important to the understanding of cyber law, but question more broadly what is the most fundamental underlying value that we should protect over the internet? But where did Zittrain go wrong? Was he right in pointing that generativty is the internet most important value that we should focus our attention to? Why he did not provide us with other fundamental values that we should think of as well? Is he right in his predications about what will happen to the internet if we do not have generativist? Can anyone predict where technology will take us and foresee the Internet future? Why Zittrain was narrow when he focused on security issues and failed to recognize other concerns that may lead to less generativity? Why he did not consider other issues? Who is the best actor to deal with the security issues? Did he tell us exactly what we should do in order to achieve the generative internet? Are his solutions effective enough? Did he present a clear idea of what we should do or just a vivid unclear picture that we could not benefit from?

I think with all of the criticism to the approach Zittrain followed to address the generative internet, he left us with a good starting point that we should take seriously of how we should look and develop the internet. He builds much on the earlier work of professor Lessig, and challenges our thinking on the way we should look at the architecture design of the Internet and many of its critical themes.

Conclusion

It is important always to remember that the internet was not born out of accident, but rather it was tremendous efforts of many visionary people who did not want any form of discrimination over the network. The open architecture standards allowed creators of content and services to publish their work without seeking permission from anyone and paying any required fees. This is changing as we are witnessing the rise of network providers that want to differentiate between packets and implement discrimination polices.

The main reason to implement these polices is to protect consumers from spam and other unwanted content.  What this will mean for the internet? Are witnessing a new era? How that will affect internet’s future and how we should deal with it properly?  I think we are facing an important era in the history of the internet, and the choices we make today will have an ever-lasting effect on our use of the internet and many generations to come. We have to continue our debates and not take any action that we may not appreciate in the future.

There is no bright line between what is considered right and wrong in this fierce debate of network neutrality or diversity, but we need to be prepared for the consequences to come and still take the necessary legal action. The various view points mentioned earlier provided us with a fair balanced view of the problem, but it left us with unanswered difficult question which route we should take, and how that may affect the future of internet.

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