As broadband becomes the public's technology of choice to access the Internet, it is also emerging as the battlefield upon which the struggle for control of the Internet is being fought. Operators who provide physical access to the service claim the right to discriminate among the content providers who use the infrastructure in which the operators have invested. In contrast, content providers warn that exercising such a policy would "undermine the principles that have made the Internet such a success."[...] For academic observers, analysis of this issue has thus far been confined to the areas of property law, innovation, and competition models. This study, however, offers a different framework for analyzing the "network neutrality" controversy, one that takes into account that the Internet is a new medium of "mass self communication." The Internet provides a unique venue for civic engagement, exposure to information, and opportunity for education. The established frameworks that guide the regulation of traditional media are not necessarily suitable for this new form of communication because they fail to address its multi-participant character (as opposed to the limited-participant technologies of "old media"), and the abundance created by its innovative technological form (as opposed to the scarcity which characterized "old media"). Here arises the urgent need to address this debate in its appropriate context. While others have framed the debate in terms of another battle among the conflicting interests of large corporations, we view it as a struggle between the newly defined classes of haves and have-nots. We contend that using this new frame of reference should provide both those whose interests have been ignored by the regulation of past technologies, and the newly created have-nots, with an opportunity to better their social positioning by enjoying unobstructed access to the Internet as users. Therefore, we propose abandoning the utilitarian philosophy that has characterized U.S. telecommunications regulation--the outcome of which has been promoting the interests of a fortunate few--and adopting the alternative theory of John Rawls's "theory of justice."[...] The materialization of the promise of the Internet requires its maintenance as an open and neutral network. We are therefore concerned about the continued reliance on legacy policies and intend to offer here a new underlying theory for regulation of access to the Internet. We suggest that although Rawls's theory preceded the popularization of the Internet by decades, it has the power to bridge the different policy narratives and offer a framework for maintaining the free nature of the Internet because it addresses both the social and economic nature of the Internet policy debate, accepts the general framework of market economy and capitalism, focuses on protecting fundamental rights, and proposes an egalitarian, fair, and just solution.
Amit M. Schejter & Moran Yemini,
Justice, and Only Justice, You Shall Pursue: Network Neutrality, the First Amendment and John Rawls's Theory of Justice,
Mich. Telecomm. & Tech. L. Rev.
Available at: http://repository.law.umich.edu/mttlr/vol14/iss1/4