
Dear Supernova: When should Network Neutrality apply at the app level? - evanwolf
http://skypejournal.com/blog/2010/07/30/dear-supernova-when-should-network-neutrality-apply-at-the-app-level/
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evanwolf
Don't use the content of my bits to treat my bits differently than anyone
else's bits. That's the general thrust of network neutrality. Common carriage,
that the companies moving my phone call or video call or email shouldn't know
or care about who I'm speaking with or what we're saying.

Net neutrality came up as Internet service providers struggled to do more than
move data. They blocked Skype, throttled movie downloads, filtered out
websites. They decided it was their right to choose on behalf of their
customers since they owned access points to the Internet.

Skype and other Internet companies that suffer from bad carrier behavior
supported net neutrality for a long time. Skype's chief D.C. advocate, Chris
Libertelli, recently shot the FCC a note: “The issue of Network Neutrality
protections for Skype users has been pending for too long. Skype supports
quick action by the FCC and today’s vote. Moving forward with a solid legal
foundation is critical to promoting investment and consumer choice throughout
the Internet ecosystem."

I bring this up because Skype soft-launched SkypeKit last month. SkypeKit lets
programmers build Skype inside desktop software and in hardware. Like Apple's
app store, Skype limits what you can build based on the content of your app:
no adult content, no gambling.

Skype claims this right because your SkypeKit app will use some of Skype's
resources. Copies of your app will log in to Skype's servers and move data
through them. SkypeKit-based apps use proprietary Skype intellectual property,
like Skype-built communication protocols, codecs, and encryption. Their turf,
at least in part, so their rules.

Skype reserves the right to compel you to withdraw your published product from
the market if they decide, at their own convenience, that your app violates
their content sensibilities. Should they have this power?

Just as the power companies can’t dictate what kinds of purposes people use
electricity for, the providers of basic general-purpose communications
transport shouldn’t be able to dictate how we communicate. – Susan Crawford,
August 14, 2008

Professor Crawford wrote that about network neutrality. Her point seems to
apply here. Infrastructure shouldn't dictate the content of solutions built
upon it. Public roads what models of car you can drive. Cars where you can go.
Application platforms what you can run.

Should Skype, arguably a phone company and offering a telecommunications
platform, have the right in law to discriminate based on the content of your
conversation? How about other cloud telephony and cloud platform providers,
like Voxeo, Google, and Amazon? We know they have the technical power to
enforce their view. Should those powers be supported in law and regulation
too?

At what point do the ideas of common or public carriage apply to non-telephony
platforms?

"Common carriage was applied to freight or carriage companies and inland and
ocean water carriers. By common law, common carriers were 1) required to serve
upon reasonable demand, any and all who sought out their services; 2) held to
a high standard of care for the property entrusted to them; and 3) limited to
incidental damages for breach of duty." -- Eli M. Noam, Beyond Liberalization
II: The Impending Doom of Common Carriage, 18 Telecomm. Pol'y 435. Sec. II
(1994). via Cybertelecom

Serve everyone.

How is carrying our voice bits different than executing our application bits?

Should Apple be compelled to let all apps run on iOS? Should Amazon be
indifferent about the apps that run in its cloud so long as they behave non-
destructively within technical guidelines?

Should the Carterphone principle (attach any phone to a network so long as it
doesn't harm the network) apply to all APIs by default? Attach any app or
service so long as it doesn't harm network operations?

Should this apply to all platforms? Apple and Amazon are big, successful,
market leaders with their platforms. How about a small CAD company without
power in a crowded market? Should we consider the long tail of API providers
to be common carriers?

How about platforms that are in early testing, where the hosting company is
not ready to make a public commitment to the APIs or to the platform? Skype's
SkypeKit platform is in an early closed beta and its APIs are still in flux.
Should we exempt early-stage platforms from discriminating on the content of
our software?

If software publishing is protected speech,

By whose authority?

Being privately owned isn't a free pass. Skype answers to its board of
directors, not to the public. Then again, so does AT&T. The public doesn't get
to say that my dating site is "adult" except through public discussion. Why
should AT&T at the carrier layer or Skype at the application layer?

What constitutes a public interest worthy of taking some authority away from
those hosting a platform? Free speech, consumer choice, freedom to assemble
(online), access to work (online and off), access to government services and
ePolitics? What regulator would have the authority to impose open access? What
laws cover this now?

Lots of questions.

One last one.

Should Apple and Skype, both of whom are dictating content on their network,
lose exemption from DMCA Safe Harbor provisions? Does restricting some content
make them liable for the content they approve?

No more questions.

Courts around the world told Microsoft they had to play fair in the Windows
browser wars. Let's debate application neutrality for our new platforms.

