Computers, Privacy & the Constitution
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Tradeoffs Between Network Neutrality and Privacy

-- By GuilhermePinheiro - 07 Mar 2010

* Introduction*

The paper has the purpose to analyze the concept of network neutrality, point out its consequences and identify the problems that the adoption of such a policy could have on the privacy of Internet users/subscribers. For the past several years, the principle of network neutrality has been widely discussed inside the academia and the Unites States government, especially by the Federal Communications Commission – FCC, which delineated 4 basic principles for its application in 2004. In 2008, in a complaint against Comcast, the FCC found that Comcast was inhibiting the users of its Internet service from using file-sharing software, and laid down the basis for the formal application of network neutrality principles in the Internet. Interestingly, the final decision in the case Currently, there is also a Bill in Congress addressing net neutrality issues (S.215 The Internet Freedom Preservation Act).

* Net Neutrality Concept*

According to professor Timothy Wu, net neutrality is best defined as a network design principle in which all content, sites and platforms are treated equally. This rule would allow the network to carry “every form of information and to support every kind of application” with no content-based discrimination (Journal of Telecommunications and High Technology Law, Vol. 2, p. 141, 2003). Network neutrality principles support the existence of a non-discriminatory platform allowing a greater number of interactions among its users and the optimization of network tools. In sum, network neutrality intends to prevent private network owners from giving priority to different types of content on the Internet. The “Internet Freedom Preservation Act” Bill states that network neutrality policy is based upon the principle of nondiscrimination and is consistent with the history of the Internet’s development. The Bill considers this non-discrimination “essential to ensure that Internet services remain open to all consumers, entrepreneurs, innovators, and providers of lawful content, services, and applications”.

* How Privacy May be Threatened*

In order for the network neutrality principle to work, however, it is necessary that some regulation over private owned networks, which comprise the Internet, be exercised by the government. This regulation would not only set forth the rules for network neutrality principles application, but also the penalties and damages private network owners would incur in case the principle were to be violated.

The main issue is, therefore, how net neutrality control by the government could be done without the government itself having access to Internet subscribers private data. As seen in State of New Jersey v. Shirley Reid (195 N.J. 422, 949 A.2d 850), a subscriber has an expectation of privacy in his Internet subscriber information. The problem is that, for the government to determine that there was an infringement of the net neutrality principles, it would have to exercise constant surveillance and monitoring of the Internet information and data flows, which could inevitably lead to the invasion of privacy or personal data of an Internet subscriber. It is not like the government has not yet already access to a vast number of personal data available on the Internet. Net neutrality, however, would endow this access with a social justification and a legal foundation based entirely on net neutrality reasoning.

Some argue that it would be near to impossible to try and enforce some sort of net neutrality regulation without first hurting individual privacy. In this context, the possibilities are twofold:

(i) a possible control and manipulation of the Internet information flow by a private network owner; or

(ii) the danger of the government officially taking the matters into its own hand and freely (and legally) exercising surveillance and monitoring of the Internet order to avoid . So far, the debate leaves us between two bad choices, from which we would have to pick the least worse.

* Two Privacy Problems of Net Neutrality*

In the issue of net neutrality, there are two main types of violation of privacy.

First, there is a violation of privacy by the private network owners to determine whether the subscriber is using the network to access contents or download applications from one of the their direct competitors. This violation of privacy is the undue access network owners have over the subscriber`s data in order to practice discrimination. It is, therefore, one of the foundations for the adoption of the net neutrality principle (See Christopher Yoo Debate; Federal Communications Law Journal, Vol. 59, No. 3, 2007).

The second type of violation is the violation of subscriber`s privacy by the government, when trying to enforce net neutrality, i.e, to determine the existence of discriminatory actions on the part of the private network owners. In this endeavour, the risks to violate the privacy of the Internet end user are substantial. This second issue raises more concern in this paper.

Ironically, net neutrality, when trying to interfere with the violation of privacy generated by network owners, creates itself the possibility of a privacy violation by the government.

In the net neutrality debate the question remains open. Is the government able to fulfill the objectives of net neutrality principles without the government itself violating privacy? For now, this seems unlikely.

In the recent Comcast Corp. V. FCC decision (No. 08-1291 D.C. Cir.), the court, in deciding in favor of Comcast, did not even mention the word privacy, as if it were not substantial to this debate. The case was decided over FCC`s jurisdiction matters.

* Conclusion*

This paper shows that there is a permanent tension between the network neutrality principle and the right to network privacy of Internet users. It argues that it is not advisable to simply accept the government`s justification for applying and enforcing net neutrality, that is, the protection of the free flow of information and the circulation of information on the Internet.

If the government has total discretion in applying and enforcing the principles of network neutrality on the Internet, it is very likely that private data of Internet users will become more easily available to the government. The enforcement of net neutrality principles must be carefully executed to prevent privacy violations.

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r4 - 17 Jan 2012 - 17:48:20 - IanSullivan
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