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互联网通信的最大威胁是互联网服务提供商和移动电话运营商提供的所谓“零评级”软件包。这些软件包允许用户不受限制地访问特定内容和服务（如Netflix、Snapchat或Spotify），而无需将此使用计入用户的数据上限或收取任何额外费用。这些方案破坏了网络中立性，应该被法律禁止。
The greatest threat to the future of Internet communications are so called 'zero-rating' packages offered by ISPs and mobile phone operators. These packages allow users to avail themselves of unlimited access to specific content and services (e.g. Netflix, Snapchat, or Spotify), without this usage counting towards the users' data cap or accruing any additional charges. Such packages undermine Network Neutrality, and should be prohibited by law.’ Critically discuss.
1. Introduction介绍
几年前，互联网流量管理开始兴起，网络运营商推出了各种数据产品。随着互联网交通管理的逐步发展，由粗放经营进入了一个新的时代，越来越被网络运营商所采用。互联网服务提供商（ISP）和移动运营商推出了“零评级”软件包，该软件包“允许用户无限制地访问特定内容和服务，而这种使用将计入用户的数据上限或产生任何附加费用”。数据流管理的出现是运营商盈利和谋求发展的必然产物。然而，也有人建议，所谓的“零评级套餐”会破坏网络中立性，而且应该被法律禁止，因为它无疑是对网络中立性的冲击。
A few years ago, Internet traffic management began to emerge and network operators launched a variety of data products. With the gradual development, Internet traffic management has ushered in a new era from extensive operation, which have been more adopted by the network operators. Internet Service Providers (ISPs) and mobile operators launched ‘zero-rating’ packages which ‘allow users to avail themselves of unlimited access to specific content and services, with out this usage counting towards users’ data cap or accruing any additional charges’. The emergence of data flows management is a necessary product for operators to make profits and seek development. However, it is also suggested that the so-called ‘zero-rating packages’ undermine Network Neutrality, and should be prohibited by law since it is undoubtedly a shock to Network Neutrality.
网络中立的概念已有10多年的历史，2008年全球范围内首次报告了网络中立的案例。第二年，欧盟修订了电信法，增加了网络中立原则。2010年，智利首先颁布了网络中立法。2012年，荷兰还引入了网络中立立法。由此，全球网络中立性立法和法律模式应运而生。除荷兰、智利等少数国家外，其余大部分国家仍处于观察和探索阶段。网络中立性是互联网开放的重要组成部分，近年来又一次成为美国最热门的问题之一。本文将从正反两个方面进行探讨，并试图提出一个批判性的立法建议。
The concept of Network Neutrality has had more than 10 years’ history, the first Network Neutrality case has been reported in 2008 on a global scale. The next year, the European Union amended telecommunication statute which added the principle of Network Neutrality. In 2010, in a word first, Chile promulgated the law of Network Neutrality. In 2012, the Netherlands has also introduced Network Neutrality legislation. With this, the global Network Neutrality legislation and law pattern has emerging. In addition to a few countries, such as Netherlands and Chile etc., most of the rest countries are still in a observation and exploratory stage. Network Neutrality is an important part of Internet openness, which has once again become one of the hottest issues in the United States recently. In this essay, it is going to discuss positive and negative opinions and try to bring forward a legislative suggestion critically.
2. Network Neutrality legislation in UK, EU and US
Network Neutrality itself is a complex concept. Murray suggests, “Net Neutrality is the principle that data packets on the internet should be moved impartially without regard to content, destination or source” ; from Faulhaber, “Net Neutrality demands that broadband ISPs treat all bits equally” ; Tim-Berners Lee explained Network Neutrality further, “ If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level…Net Neutrality is NOT saying that one shouldn’t pay more money for high quality of service”. To summarize what have been stated above, in terms of the problem related to this essay, it mainly means that all Internet users can access network content, run applications, access devices and select service providers according to their choice within the scope of the law. This principle requires equal treatment of all Internet content and access to prevent network service providers from controlling the priority of data transmission out of business interests, thus ensuring the "neutrality" of network data dissemination.
When the Internet came into being, to protect the internet, government tended to avoid managing Internet. Everyone can imagine this Internet is a highway. Lots of service providers turned into big trucks on the highway. So these service providers began to negotiate with the “highway” and ask the “highway” to open their lanes so they could run faster. Thus, Network Neutrality regulations came into being. Network legislation provides that the network is utility, the equivalent of hydropower gas. Network providers can not discriminate users, can not discriminate websites, app and so on. Back in the truck example: highways cannot allow big trucks have higher priority. Information highways are basic utility that can widen roads but not priority trucks. Legislation allows providers to provide different bandwidth but cannot alter access rates artificially. Behind this reason is that if internet providers discriminate against their information then big companies must have more power to gain monopoly advantage to prevent small companies from entering. Because big companies always have stronger bargaining power and deeper pocketbook. Meanwhile, internet operators avoid interfering with individuals' options. Many Internet companies are now opposed to eliminating legislation in the Internet because they fear that unfair competition from cancellation would put themselves into a value dilemma.
In the UK, EU and the USA, there are laws regulating Net Neutrality. In UK, Ofcom, the regulator of ISPs holds that transparency is key. It means UK regulator considers that consumers should be appropriately informed of traffic prioritisation, degradation or blocking policies being applied by their ISPs, so as to factor these when making purchasing decisions; which means UK operator thinks no need to provide a principle of Net Neutrality to ISPs if there is a transparency in the market. In EU, as Articles 8 & Article 10 of the European Convention on Human Rights (ETS No.5) focus on protection and promotion of the right to private life and the right to freedom of expression, EU committee adheres to Network Neutrality as this principle “underpins non-discriminatory treatment of Internet traffic and the users’ right to receive and impart information and to use services of their choice. It reinforces the full exercise and enjoyment of the right to freedom of expression because Article 10 of the Convention applies not only to the content of information but also to the means of its dissemination”. On February 26, 2015, Federal Communications Commission (FCC) of USA passed a proposal on Network Neutrality with a vote of 3 votes in favor and 2 votes. On December 14, 2017, however, FCC repealed the above regulations again with a vote of 3 votes in favour of 2 votes. The principle of Network Neutrality in the United States has only lasted for less than three years in the form of statute.
3. Opinion for and against Network Neutrality
The proponents and opponents of Network Neutrality formed two distinct camps. The supporter faction is mainly composed of the major Internet service companies and the civil liberties organizations, etc., such as Google, Amazon, Microsoft, YAHOO and so on. The opposition is mainly composed of some Telecom operators and network access service providers, such as AT&T, BellSouth, Comcast and Verizon and so on. In addition, some independents held the view of "conditional differential treatment", who attempted to find a compromise in the path of confrontation between the two sides, but in vain. The focus of dispute between the two sides on the value of "Network Neutrality" is as follows.
3.1 Internet freedom and Internet regulation
The supporter group takes the initiative to advocate the spirit of equality, freedom and openness of the Internet and opposes the grading behavior of Internet service providers and the practice of charging fees according to broadband capacity. Supporter group maintains that, as the role of the Internet administrator, the government has the right to regulate the acts of Internet service providers and telecom operators violating the right of freedom of speech and the principle of equality. In the absence of Internet management rules, Internet service providers will become gatekeeper, who may make use of its market dominance to act against users, competitors and network content providers.
The opposition claimed that the government should stick to the position that "the less intervention the government gives, the better the government is", it is not necessary to formulate regulations that require Internet service providers to behave in line with Network Neutrality policy. They enumerated the anti-discrimination legislation that once appeared in the history of the United States. For example, common carrier is forbidden to discriminate against any individual and organization using railway. Today, however, the differential transport in the railway transportation industry has become a widely accepted phenomenon. Certainly, anti-discrimination legislation in American history can only be used as reference experience due to the particularity of the Internet virtual space and the information industry.#p#分页标题#e#
3.2 Public interest and industry interest
Some researchers believe that the essence of Network Neutrality debate is the inevitable result of conflicts between Internet companies and telecom operators in the market environment of industrial convergence, as well as the conflict between departmental interests and public interests. This argument directly points to the motivation of economic interests through the freedom and regulation level of the Internet.
With the increase of broadband capacity and network equipment investment, Internet service providers and telecom operators found that they failed to get extra profits while they were investing and expanding the network to solve the network congestion problem. Instead, those free broadband content providers and other Internet value-added services, such as Google, Amazon and YAHOO, have gained rapid economic growth from the expanding network broadband and devices. This situation directly causes that Internet service providers and telecom operators oppose Network Neutrality and call for the implementation of Two-Tiered Internet standard, so as to ensure their undamaged economic interests. In this regard, the supporter group expressed concern about the possible development of the Internet into a "Two-Tiered" system, holding that the system does have the potential to guarantee the benefits of Internet access services and its associated enterprises. However, according to the rule of market economy, Internet access service is controlled by a few large companies, so at least a powerful third party management institution is needed to maintain market competition in this field. That is to say, the support group expects to restrict the behavior of Internet service providers through government legislation. More importantly, the Two-Tiered Internet standard may damage the public interest, which is the reason why supporters have made a clear-cut stand to put forward the legislative appeal of Network Neutrality.
3.3 Market competition and technological innovation
The supporter group has always insisted that Network Neutrality is an effective way to maintain market competition in the field of network access services. Based on this, the opposition first put forward that it is not only unnecessary to set up a Network Neutrality policy on Internet management, but also produces negative consequences that impede the deployment of Internet facilities and the progress of technology. Based on the basic view of economics, the aggravation of competition in specific areas will directly reduce profits, which will make investors lose market confidence and reduce investment in the field of network access services. Secondly, the opposition believes that the technological innovation will inevitably be affected if the network access providers are required to manage the network in a specific way or provide services. Opponents also point out that the development of new technologies will help to offset any non discriminatory behavior.
The supporters argue that promoting national policies to achieve user expectations and ensuring openness in the Internet market is an effective way to establish interest protection mechanism and promote Internet business expansion. The establishment of a unified management system to prevent Internet discrimination is a positive strategy for the further development of the Internet. While ensuring the stability of the market requires encouraging investment and promoting new technologies and new products, this can not be at the expense of users and Internet content providers. In addition, the current law is not only inflexible but also expensive, so it is necessary to improve the management system through legislation.
4. Conclusion
The legislation of Network Neutrality is controversial. Someone argues that Network Neutrality inhibits Internet innovation. Looks like it's right. For example, watching video is free of traffic. If Network Neutrality legislation applies, this innovation is not available. But the question is, do we really want to encourage innovation in this competitive way? Because traffic is originally squeezed out from existing channels. Users themselves are not necessarily profit. Moreover, competition among small firms becomes harder because small companies cannot afford to discriminate against pay. Therefore, this innovation can suppress the entire Internet. Secondly, someone feels that free competition can solve problems in legislation that exist in network problems, because customers have enough freedom to choose. This argument makes sense in pure free markets. But internet providers are somewhat different because changing networks is a hard thing, unlike shopping at supermarket where you can buy whatever you want. Changing networks may mean a lot of trouble for changing lines to switch devices. So this market isn't fully competitive. Third, someone believes that this creates excessive burdens on network providers. But does it really burden? Apart from "loss potential income", there is no other burden. And loss potential income is precisely the purpose of this regulation.
The legislation is more inclined to adopt a neutral way since it is impossible to judge how much economic interests can be generated by the implementation or opposition to Network Neutrality. Instead, the market can achieve the "survival of the fittest" through competition, so as to enable the market to achieve "survival of the fittest" through competition. Just like the position taken by the Supreme Court of the United States in The Anti-Trust Act, unless business practices have caused irreparable consequences for market competition, the behavior cannot be identified as illegal. This requires further clarification of the connotation of Network Neutrality, based on which the policy of Network Neutrality shall be amended. In a word, the intermediate route is an effective way to build and promote the Network Neutrality legislation on the premise of reducing the damage to the interests of the two sides as far as possible.
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