Computers, Privacy & the Constitution
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Freedom to receive information in wired and wireless communication networks: controlling the switches and the airwaves.

-- By NikolaosVolanis - 26 Feb 2010

Freedom to receive information is a fundamental prerequisite for individual autonomy, and a primal requirement in any decision making process, allowing us to perceive the state of the world, and evaluate alternative outcomes. Moreover, it is a prerequisite and cornerstone not only of individual development but also political freedom, in the sense that it enables political participation in the public sphere. For these obvious reasons, the European Convention for the Protection of Human Rights and Fundamental Freedoms includes (art. 10) the "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers" within the protective scope of Freedom of Expression.

Yet, the current state of affairs, both in the wired and wireless communication industries seem to indicate that the exercise of the specific right is weakened as a result of private intermediaries (telecommunications operators) and regulation. My aim is to briefly describe why this is so.

Wired communications

With regard to wired communications, the threat for freedom of speech is primarily related with what has eventually come to be identified as a "network neutrality" debate. As an example of this threat, I chose an old (1999) Cisco Systems technical white paper, which makes the case pretty clear: in describing the advantages of a new sort of routers for cable operators, Cisco explained that if the operators' users want to subscribe to a service that "pushes" information to their computer "you could restrict the incoming push broadcasts as well as subscribers' outgoing access to the push site to discourage its use. At the same time, you could promote your own or a partner's services with full speed features to encourage adoption of your services".

Left unchecked, this technological capability poses a serious threat to the freedom to receive information over the Net, and indeed, the US and EU regulators have begun to acknowledge this threat. However, their approach seems to be based primarily on principles of competition law instead of human rights. The talk is more about "captive consumers", "refusals to deal", "harm to competitors" and much less about how such technology may undermine the right to freedom of expression.

Of course, the case for applying competition law principles seems rather simple: the danger of the "captive consumer" could be mitigated if the user had a range of alternative channels of communication to her home and knew how the information flow is managed. Still, this is not an option for the vast majority of the population, as a result of the near-monopolistic market structure for fixed-line communications: By the end of 2003, more than 96% of homes and small offices in the US that had any kind of high-speed Internet services received their service from either their incumbent cable operator or their incumbent local telecommunications operator (Benkler, Y., "The Wealth of Networks", Yale University Press, 2006, p. 152). It seems that the inherent characteristic of the proprietary wired telecommunications market as a natural monopoly, gravitates into a consolidation of either a lopsided duopoly or a monopoly. This is primarily exemplified by exorbitant costs that are required for investing in the "access" part of the network, particularly in the "last mile" of the network, that is, the final leg of delivering connectivity from a communications provider to a customer.

Notwithstanding the validity of the arguments for a competitive Net, focusing solely on a discussion on whether net neutrality regulation will help boost competition and broadband development bypasses the prior question whether discriminatory access could be constitutionally allowed as an alternative, particularly considering that traffic shaping technology essentially passes powers to control freedom of expression into private hands, without the constitutional protections that govern public authority intervention and censorship. By focusing mainly on empirical positivist economic argumentation, we miss the wider picture: that the meaning of network neutrality is explicitly normative and political, and as such, it is imbued with constitutional guarantees.

Wireless Communications

Setting aside the problem of network neutrality in the mobile services industry, an additional problem arises from regulatory restraints on the use of spectrum, since the latter is still regulated as a scarce resource, a notion based on century-old engineering assumptions using oscillation as a single engineering approach for wireless transmission of multiple messages. New communication technologies, however, have allowed us to use multiple parameters instead of one to separate radio messages, since nowadays radio transmitters can transmit at the same frequency without interfering with each other and without confusing the receivers. In professor Benkler's words: "Just like automobiles that can share a commons-based medium - the road - and unlike railroad cars, which must use dedicated, owned and managed railroad tracks - these new radios could share "the spectrum" as a commons" (Benkler, p. 88).

In addition, in a mentality similar to that of volunteer/distributed computing and p2p file-sharing, where users share their resources (in one case computational power, in the other case, storage and files), users can also share the excess capacity of sophisticated radio transceivers to increase capacity and connectivity of a network. This "cooperation gain" - that is, the improved quality of a system gained when the nodes cooperate - may be considered as a prominent base for capacity scaling, and it is heavily used in "mesh networks", in which nodes help each other forward messages and decipher incoming messages from the cloud of radio emissions.

That said, it is not absurd to consider that technology today allows us think about telecommunications networks outside the narrow context of proprietary ownership by large operators: instead, the advent of wireless communication technology has progressed to the point where it is now possible for users to own equipment that cooperates in mesh networks to form, not only the core of mobile communication services, but also the "last-mile" infrastructure of the fixed network. In this sense, radio networks can now be designed so that their capital structure presents more similarities to the Internet decentralized infrastructure, leaning towards a model of commons-based physical infrastructure for wireless communication networks and for the last mile of landline communication networks. And considering that the salient characteristic of commons, as opposed to property, is that no single person has exclusive control over the use and disposition of any particular resource in the network, the benefit for individual and political freedom is obvious, as the threat of information manipulation by the network owner is mitigated.


I thought this essay made its points well and clearly. I agree that inherent in the conversation on "net neutrality" is a question of the right to access information. I think it is a right we should value especially because many of us likely underestimate the extent to which others lack that access. And you are certainly correct that, as is so much the case these days, technology is driving the shape of the world and the law lags behind, responding to what has already happened.

I enjoyed the essay. I made a few proofing suggestions which I marked in red and, for suggested deletions, in strike-through text. I hope they are helpful.


-- BrianS - 09 Mar 2010

Thank you Brian, this is much appreciated! I've made the necessary changes.

-- NikolaosVolanis - 10 Mar 2010


I think you make some very good points in this essay. I think it's a little unclear in the wireless section whether you are arguing for net neutrality regulations in that area or not (since at least in the US net neutrality principles that control wired networks do not apply to wireless networks). If you are not then I think it's worth considering how much choice consumers truly have. For example, take a product like the iPhone, which requires you to receive your wireless network through only one service. Doesn't the incentive still exist for Apple to ask the network to speed up its own apps and slow down those of third parties, especially if the third party apps are in direct competition with their own?

-- StephanieTrain - 13 Mar 2010

I don't know how much you've looked into this or if the analogy makes sense, but your discussion of the natural monopoly of wired communications reminds me of the natural monopolies for water and electricity. I wonder if there is any relevant case law or white papers on consumers' rights to access these basic services.

As to Stephanie's point. isn't the FCC considering striking down the iPhone's exclusive contract with AT&T as a monopoly?

-- JulianBaez - 15 Mar 2010

Dear Stephanie,

Thanks for the comment, it is much appreciated. What you point out is absolutely true: The mobile telephony industry is definitely in a worse position than the fixed telephony industry vis-a-vis consumer choice and the 4 freedoms of net neutrality (the example of Verizon where you buy a phone that is useless in any other network is to me the epitome of consumer lock-up). The reason that I completely disregarded this issue in this paper was solely because I attempted to emphasize on the fact that restraints to the freedom to receive information may come from both private parties and the government. But as you rightfully point it out, I should probably make a brief note that the issue of net neutrality present in the wireless debate too.

-- NikolaosVolanis - 23 Mar 2010

Dear Julian,

Thanks for your comment. Indeed, the analogy you point out makes sense, since the issue of access to essential services seems to pop up in all network services industries. With regard to the telecom sector, this issue has been tackled by legislators by setting the minimum standards for "universal service" in order to make sure that all consumers enjoy access to basic quality (or "quality" - I guess this is a matter of definition) electronic communications services.

-- NikolaosVolanis - 23 Mar 2010


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