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January 29, 2016

Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/publications/t-mobiles-binge-violates-key-net-neutrality-principles
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on September 13, 2016 at 12:09AM

Sunday, June 19, 2016

D.C. Circuit’s Net Neutrality Ruling Rejects Corporate First Amendment Expansionism

The D.C. Circuit today upheld the Federal Communications Commission’s (FCC) 2015 network neutrality regulations, vindicating the agency’s decision to reclassify internet service providers (ISPs) as common carriers under Title II of the Telecommunications Act of 1996. Equally as important – though potentially overshadowed by the opinion’s crucial reclassification component – is the court’s total rejection of the ISPs’ constitutional argument that network neutrality rules violate their First Amendment rights. Specifically, ISPs had argued that their transmission of data is speech and thus the regulation’s prohibition on blocking and discriminating amount to an unconstitutional violation of their speech rights as they might be compelled “to transmit speech with which they might disagree.”

The court disagreed and reaffirmed that, because ISPs are common carriers, they are not speakers or editors, but rather facilitate others’ ability to engage in expression. And because network neutrality regulations relate to ISPs’ common carrier role, “[t]hose obligations affect a common carrier’s neutral transmission of others’ speech, not a carrier’s communication of its own message.”

This point is obvious to anyone who’s used the internet: the ISP, which provides the connection between you and the websites you want to access, is not speaking or exercising editorial control when it transmits data. Rather, when an ISP transmits data that you requested when you visit reddit.com, you and reddit.com have expressive interests in that content – not the ISP.

By rejecting the ISPs’ First Amendment claim, the court not only maintained the current state of First Amendment doctrine with respect to common carriers, but importantly held the line against corporate First Amendment expansionism. As many scholars have documented – including Yochai Benkler, Jack Balkin, and Robert Post and Amanda Shanor – corporations have sought to undermine publicly interested regulations as a violation of corporate First Amendment rights. The ISPs’ constitutional claim that the transmission of data constitutes their speech represented a new front in that corporate war on regulation, and fortunately for the public and their interests in free expression, the D.C. Circuit rejected it.

Let’s review the key First Amendment elements of the opinion, all of which are contained in Part VII of the majority opinion, starting on page 106. (Judge Williams’ partial concurrence and dissent doesn’t address the First Amendment questions.)

Common Carriers Are Not First Amendment Speakers

As Judges Tatel and Srinivasan explain, common carriers like “telephone companies, railroads, and postal services” have historically been required to satisfy “[e]qual access obligations” like network neutrality “without raising any First Amendment issue.” And they spell out the logic animating this fact: “The absence of any First Amendment concern in the context of common carriers rests on the understanding that such entities, insofar as they are subject to equal access mandates, merely facilitate the transmission of the speech of others rather than engage in speech in their own right.” Simply, ISPs don’t have any expressive interests at stake when they act like conduits.

Further, consumers don’t perceive ISPs to be speaking or endorsing the content that they transmit. Because ISPs act as common carriers and neutrally provide access to all legal content that a user might want, “when a subscriber uses her broadband service to access internet content of her own choosing, she does not understand the accessed content to reflect her broadband provider’s editorial judgment or viewpoint.”

The court’s reasoning follows the logic that First Amendment and cyberlaw scholars, including Center for Internet & Society Director and Stanford Law Professor Barbara van Schewick, as well as the Stanford Communication Department Professors Ted Glasser and Fred Turner, outlined in an amicus brief supporting the FCC. There, they explained that the rules “are not subject to scrutiny under the First Amendment because they do not regulate any person’s speech” but rather regulate ISPs’ “conduct” – the act of “transmit[ting] others’ speech through [a] conduit.” Transmission isn’t a speech act because ISPs “do not act as speakers when they transmit the speech of others.”

ISPs Don’t Have Editorial Interests Like Newspapers or Cable Co’s

Additionally, the court made clear that ISPs, when operating as common carriers, do not have an editorial interest at stake. Judges Tatel and Srinivasan explain the point by comparing ISPs to newspapers and cable companies, which courts have held “engage in editorial discretion,” to explain that, here, “the exercise of editorial discretion is entirely absent with respect to broadband providers subject to the Order.” They continue:

Unlike with the printed page and cable technology, broadband providers face no such constraints limiting the range of potential content they can make available to subscribers. Broadband providers thus are not required to make, nor have they traditionally made, editorial decisions about which speech to transmit. See 2015 Open Internet Order, 30 FCC Rcd. at 5753 ¶ 347, 5756 ¶ 352, 5869–70 ¶ 549. In that regard, the role of broadband providers is analogous to that of telephone companies: they act as neutral, indiscriminate platforms for transmission of speech of any and all users.

Here too, the court echoes the arguments in the First Amendment scholars’ amicus brief:

Unlike newspapers and cable companies, broadband providers do not and need not exercise editorial control in order to determine how to fill a limited number of newspaper column inches or television channels. There is no limit to the applications, content, and services available over the Internet, and no technological constraint that prevents broadband providers from offering their users access to the entire Internet. Broadband Internet access service, as described above, is not the provision of a curated body of the Internet’s “greatest hits,” nor is there any technological reason why it has to be. Instead, that service gives users a connection over which they select for themselves the content they want to send and receive. It is much more like traditional phone networks; there is no need to “edit” or “select” who can make or receive phone calls.

Even If ISPs Eventually Provide Content, Their Common Carrier Status and Its Immunity From First Amendment Scrutiny Isn’t Undermined

The court acknowledged that if ISPs decide to provide content – for example, writing a Comcast or Verizon blog – then that content would qualify for First Amendment protection. But it made clear that such First Amendment protected activity doesn’t transform the common carrier component of what ISPs do such that it, too, is vulnerable to a constitutional attack.

Here’s the relevant paragraph from the opinion, which puts this point in context:

Because the rules impose on broadband providers the kind of nondiscrimination and equal access obligations that courts have never considered to raise a First Amendment concern—i.e., the rules require broadband providers to allow “all members of the public who choose to employ such facilities [to] communicate or transmit intelligence of their own design and choosing,” Midwest Video, 440 U.S. at 701 (internal quotation marks omitted)—they are permissible. Of course, insofar as a broadband provider might offer its own content—such as a news or weather site—separate from its internet access service, the provider would receive the same protection under the First Amendment as other producers of internet content. But the challenged rules apply only to the provision of internet access as common carriage, as to which equal access and nondiscrimination mandates present no First Amendment problem. (emphasis in original)

But the Court Leaves the Door Open to First Amendment Claims If ISPs Develop “Curated Internet Experience[s]”

However, the court explains, if ISPs “choose to exercise editorial discretion—for instance, by picking a limited set of websites to carry and offering that service as a curated internet experience—it might then qualify as a First Amendment speaker.” Though the court doesn’t develop the argument because the net neutrality Order doesn’t cover these types of providers, it leaves the door open to the possibility of ISPs having an editorial interest.

Notably, the court used the word “might” – curating an internet experience might implicate an editorial interest and trigger the First Amendment. And it’s tricky to judge hypothetical curated experiences without facts. But to the extent that corporations use First Amendment arguments to undercut the principles of a free and open internet, judges should be skeptical, and should remember that users, consumers, and citizens have First Amendment interests, too.

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/blog/2016/06/dc-circuit%E2%80%99s-net-neutrality-ruling-rejects-corporate-first-amendment-expansionism
This article by Morgan Weiland originally appeared on cyberlaw.stanford.edu on June 15, 2016 at 06:31AM

T-Mobile's Binge On Now 'Zero Rates' 90 Different Services

"Controversy has followed T-Mobile's Binge On since launch, with many, including Stanford lawyer Barbara van Schewick, stating that the program violates net neutrality.

"A core principle of net neutrality is that ISPs should not pick winners and losers online by favoring some applications over others," stated van Schewick. "But that’s exactly what Binge On does. Customers have a greater incentive to watch videos that are included in Binge On than those that are excluded. As a result, providers in the program can be more successful than providers that T-Mobile leaves out.""

Original Publication:

DSLReports

Date published:

June 14, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/t-mobiles-binge-now-zero-rates-90-different-services
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on June 15, 2016 at 01:57AM

'Net neutrality' rules for fair internet access win in court

"This decision is huge for the FCC's authority," said Marvin Ammori, a longtime net-neutrality advocate. "We won big on everything." That sets the stage for what Ammori and several analysts see as the next big battle. That will likely involve "zero rating" — the practice of exempting preferred video services from customer data caps."

Original Publication:

US News & World Report

Date published:

June 14, 2016

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People:

Marvin Ammori

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/net-neutrality-rules-fair-internet-access-win-court
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on June 15, 2016 at 01:51AM

T-Mobile adds PBS, other partners to Binge On

""Binge On allows some providers to join easily and creates lasting barriers for others, especially small players, non-commercial providers, and start-ups," Stanford law professor Barbara van Schewick wrote earlier this year. "As such, the program harms competition, user choice, free expression, and innovation.""

Original Publication:

FierceWireless

Date published:

June 14, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/t-mobile-adds-pbs-other-partners-binge
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on June 14, 2016 at 10:00AM

Court upholds FCC net neutrality rules

"In a 2-1 ruling, the DC Circuit Court of Appeals upheld the Federal Communications Commission's net neutrality rules that regulators. In a statement, FCC Chairman Tom Wheeler said the ruling “ensures the internet remains a platform for unparalled innovation, free expression and economic growth.” RT America correspondent Manila Chan reports that the DC Circuit Court upheld the ruling despite heavy resistance from the telecom industry. Later, Barbara Van Schewick, professor of law at Stanford University, tells ‘News with Ed’ that the ruling is “a sweeping victory for all Americans, whether it’s the innovators or anybody that uses the Internet.”"

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/multimedia/court-upholds-fcc-net-neutrality-rules
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on June 14, 2016 at 10:00AM

Why India should keep an eye on Europe

"“The law is neither with the telecom companies nor with the activists. It has been overcomplicated and could be interpreted either way,” says Thomas Lohninger, an activist who is a part of the savetheinternet.eu campaign which has nearly 22 digital rights organisations across Europe under its ambit.

The emphatic ‘no’ heard in Indian public consultations for zero-rating — which was marketed as giving the poor ‘some Internet’ instead of ‘no Internet’ — is a lesson for Western politicians who are “worried” about stopping free zero-rated services, says Barbara van Schewick, Director of Stanford Law School’s Center for Internet and Society, whose research has shaped the U.S. response to Net neutrality.

“The Indian response is remarkable, because they saw this as affecting their start-ups and local voices,” she said at the meet. “There was a huge mobilisation, and in the end, the Indian regulatory came up with a nuanced version of zero-rating legislation. It is a model for what we can do here.”"

Original Publication:

The Hindu

Date published:

June 13, 2016

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Thomas Lohninger

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/why-india-should-keep-eye-europe
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on June 13, 2016 at 09:12PM

Monday, March 21, 2016

Techdirt Podcast Episode 65: Net Neutrality, Zero Rating & The Games Internet Providers Play

The battle for net neutrality seemed like it was over — but the regulations left a loophole open. Unsurprisingly, ISPs quickly started exploiting it, offering "zero rating" services to do an end-run around true net neutrality. Last week's guest Marvin Ammori joins us again this week, to discussthe true and imperfect state of net neutrality, and the many games internet providers play.

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/multimedia/techdirt-podcast-episode-65-net-neutrality-zero-rating-games-internet-providers-play
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on March 16, 2016 at 02:02AM

Friday, March 11, 2016

FCC outlines proposal for regulating broadband providers' privacy practices

"Omer Tene, Vice President of Research and Education at the policy-neutral International Association of Privacy Professionals (IAPP), acknowledged in an interview with SCMagazine.com that there is an inherent risk in shifting authority to a new agency because “you lose the guidelines and the standards that the FTC has set forth,” including “more than 150 enforcement actions.”

“When you suddenly shift to an agency that doesn't have that long and well-established of a track record, it's important to set down these rules,” added Tene, who was encouraged that many elements of the FCC's proposal seem to be “in line with… previous [FCC] enforcement actions” against broadband providers that were found to have committed privacy violations.

The key, added Tene, is making sure that FCC's policies continue to be communicated clearly to broadband providers moving forward. “For businesses, usually the most important thing is to know where they stand and to know what the rules of engagement are. That's usually more important than what the specific rules actually are,” he said."

Original Publication:

SC Magazine

Date published:

March 10, 2016

Focus Area:

Privacy

People:

Omer Tene

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broadband

Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/fcc-outlines-proposal-regulating-broadband-providers-privacy-practices
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on March 11, 2016 at 02:58AM

Religion, Violence, and Revolutionary Love

March 8, 2016 7:30 pm

Valarie Kaur (Stanford 2003) is an American interfaith leader. As a lawyer, filmmaker, social entrepreneur, and Sikh activist, she works with communities to channel their stories into movements for social change. She has made award-winning films and led multimedia campaigns on many issues including racial profiling, gun violence, marriage equality, immigration detention, solitary confinement, and hate crimes against Sikh and Muslim Americans. She is a television commentator on MSNBC and opinion contributor to CNN, NPR, PBS, The Washington Post, The Huffington Post, The Hill, and The New York Times. Valarie founded Groundswell Movement of 200,000+ members, the largest multifaith online organizing community known for “dynamically strengthening faith-based organizing in the 21st century.” She earned degrees at Stanford University, Harvard Divinity School, and Yale Law School, where she founded the Yale Visual Law Project to train future lawyers to make films for social and policy change. Valarie has served as the Media and Justice Fellow at Stanford Law School’s Center for Internet and Society, where she co-founded Faithful Internet and advocates for Internet freedom. The Center for American Progress calls Valarie “ a standout figure in the world of interfaith organizing and activism.” In 2013, she was named Person of the Year by India Abroad and one of eight Asian “Women of Influence.” Valarie has addressed audiences at the White House, Pentagon, the Parliament of the World’s Religions, UN Office on the Prevention of Genocide, the US Institute of Peace, and on more than 250 U.S. college campuses. In 2013, she was the youngest person to deliver the Stanford Baccalaureate Commencement Address. She was honored by the World Economic Forum as a Young Global Leader in 2015.

WHEN:

Tuesday, March 8, 2016.

7:30 pm – 8:50 pm

ADMISSION:

Free & open to the public

AUDIENCE:

General Public, Faculty/Staff, Students, Alumni/Friends

CONTACT:

723-3322, lionda@stanford.edu

MORE INFO:

Visit this website

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Bldg 260 (Pigott Hall), room 113 Stanford, CA

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Valarie Kaur

Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/events/religion-violence-and-revolutionary-love
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on March 10, 2016 at 03:01AM

Bitcoin is losing the Midas touch

Bitcoin, the decentralised, mainly digital currency that is neither issued nor guaranteed by central banks, has always seemed like a magic trick. Rather than spinning straw into gold it transforms wasted computing power into money that people will actually accept as payment.

Radical libertarians have desperately wanted to believe in it because they hope it can resolve the following dilemma. They prefer markets to politics and they violently distrust states. But modern states in effect have a monopoly over the currencies that markets need in order to work.

Unfortunately, the magic is wearing off. Some of the technological innovations associated with bitcoin will stick around. The political project will not. Rather than overcoming conventional politics, bitcoin is succumbing to it.Bitcoin, if it became broadly accepted, would challenge states’ dominance of the economy. It is designed to prevent monopoly by states or other entities, building a new currency based on shared information and making it hard for any entity to gain control. Politics disappears and a combination of technology and cryptographic proofs is conjured up in its place.

The biggest fights are focused on the most innovative element of bitcoin: the “blockchain”. This is a decentralised ledger of transactions using bitcoin. Bitcoin “miners” compete with one another to solve computationally hard problems. The winner receives new bitcoin but also validates a “block” of queued transactions, which is then added to the ledger and shared with the community.

This system was designed to replace third-party regulation with decentralised authority. For technical reasons, it is starting to fail. Each block is small, meaning the system can handle only a few transactions at a time. As more people have started to use bitcoin, the system has grown more unreliable.

Read the full post at the Financial Times.

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Author(s):

Henry Farrell

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Publication Date:

March 9, 2016

Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/publications/bitcoin-losing-midas-touch
This article by Henry Farrell originally appeared on cyberlaw.stanford.edu on March 09, 2016 at 11:00AM

Binge On, FreeBee Data push the envelope on net neutrality, but the FCC just 'monitors'

"Binge On has been a hit with customers, helping T-Mobile to continue to continue to grow its audience in an increasingly competitive space. But the service was blasted earlier this year by a Stanford law professor and net neutrality expert who filed a report with the FCC claiming it "harms competition, innovation and free speech," and is likely illegal. In the 51-page document, Barbara van Schewick cited more than a half-dozen ways Binge On appears to violate the FCC's Open Internet Order of 2015, including making certain content more attractive than other video by not incurring data charges and constraining customer choice by enabling users to watch unlimited video from Binge On providers but not from their competitors. She added that some smaller music services had to wait as long as 18 months to be included in Music Freedom. T-Mobile, not surprisingly, has argued that its service is open to all content providers and that it benefits its customers."

Original Publication:

Fierce Wireless

Date published:

March 8, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/binge-freebee-data-push-envelope-net-neutrality-fcc-just-monitors
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on March 08, 2016 at 11:00AM

Friday, February 12, 2016

India Defends Net Neutrality against Facebook’s Free Basics

"What’s interesting in all this is that Barbara van Schewick, director of Stanford Law School’s Center for Internet and Society, whose paper was recently submitted to the FCC regarding the illegality of zero-rating certain streaming video feeds here in North America,was at the heart of this debate.

“This is a very important decision for the future of the Internet in India,” said van Schewick, whose paper the TRA cited in its ruling.

The TRA decided “ISPs should not pick winners and losers online,” she told the E-Commerce Times. “The Internet is a level playing field where users, not ISPs, decide what they want to do online.”

“In India, given that a majority of the population are yet to be connected to the Internet, allowing service providers to define the nature of access would be (the) equivalent of letting ISPs shape the users’ Internet experience,” the TRA ruling said, and this “can prove to be risky.”

“If ISPs really want to get more people online, they can, for example, offer 500 MB of bandwidth to everyone at 2G speeds, but what people do with that bandwidth is their choice,” van Schewick said."

Original Publication:

The Telecom Blog

Date published:

February 12, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/india-defends-net-neutrality-against-facebook%E2%80%99s-free-basics
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on February 12, 2016 at 10:31PM

Facebook’s fall from grace: Arab Spring to Indian winter

"Certainty and Equity: Referencing the noted scholar Barbara Van Schewick, TRAI explains that a case-by-case approach based on principles [standards] or rules would “fail to provide much needed certainty to industry participants…..service providers may refrain from deploying network technology” and perversely “lead to further uncertainty as service providers undergoing [the] investigation would logically try to differentiate their case from earlier precedents”. Our submission from the Centre for Internet and Society had called for more exemptions but TRAI went with a much cleaner solution as it did not want to provide “a relative advantage to well-financed actors and will tilt the playing field against those who do not have the resources to pursue regulatory or legal actions”."

Original Publication:

Firstpost

Date published:

February 9, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/facebook%E2%80%99s-fall-grace-arab-spring-indian-winter
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on February 09, 2016 at 11:00AM

India Trades Free Basics for Internet Freedom

India's Telecom Regulatory Authority on Monday ruled in favor of Net neutrality, effectively banning Facebook's Free Basics Internet access app.

"This is a very important decision for the future of the Internet in India," said Barbara van Schewick, director of Stanford Law School's Center for Internet and Society, whose paper the TRA cited in its ruling.

The TRA decided "ISPs should not pick winners and losers online," she told the E-Commerce Times. "The Internet is a level playing field where users, not ISPs, decide what they want to do online."

"In India, given that a majority of the population are yet to be connected to the Internet, allowing service providers to define the nature of access would be (the) equivalent of letting TSPs shape the users' Internet experience," it continues, and this "can prove to be risky."

Letting TSPs charge differential rates on a case-by-case basis -- an option van Schewick's paper addresses -- "creates substantial social costs," notes the ruling.

Original Publication:

TechNewsWorld

Date published:

February 9, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/india-trades-free-basics-internet-freedom
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on February 09, 2016 at 11:00AM

India Just Banned Zero-Rating. Your Move, FCC.

"T-Mobile’s "Binge On" plan, which exempts certain video services like Netflix from data caps, has been the subject of especially harsh criticism from open internet advocates, including Stanford law professor Barbara van Schewick, one of the nation’s leading authorities on net neutrality.

“Binge On undermines the core vision of net neutrality,” van Schewick wrote in a recent paper. “Internet service providers (ISPs) that connect us to the internet should not act as gatekeepers that pick winners and losers online by favoring some applications over others. By exempting Binge On video from using customers’ data plans, T-Mobile is favoring video from the providers it adds to Binge On over other video.”"

Original Publication:

Motherboard

Date published:

February 9, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/india-just-banned-zero-rating-your-move-fcc
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on February 09, 2016 at 11:00AM

Verizon’s Zero-Rating for Go90 Likely to Spur FCC Response

"Stanford Law professor Barbara van Schewick, focusing on T-Mobile’s BingeOn and Music Freedom programs, concluded that, regardless of its intentions, “T-Mobile prioritizes commercial entertainment video over other types of video as well as other internet use,” making it a violation of the FCC’s general conduct rules and therefore illegal. Extrapolated to Verizon, her argument would make that telco’s actions also illegal."

Original Publication:

ETCentric

Date published:

February 9, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/verizon%E2%80%99s-zero-rating-go90-likely-spur-fcc-response
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on February 09, 2016 at 11:00AM

Vertical integration is the worst form of zero rating

"Regulators around the world, be it the FCC or TRAI, are grappling with the issue of Differential Pricing (Zero Rating is a special case of it) and whether it violates Net Neutrality or not. Some academic researchers have been warning for a while that it absolutely does, and it is pointless to talk about Net Neutrality without factoring in (differential) pricing. Barbara van Schewick has written a paperrecently detailing how T Mobile’s Binge On Zero Rating program violates Net Neutrality. In some circles however, if you say something with “Prof.” as your title, it is dismissed as mere academic speculation."

Original Publication:

Medianama

Date published:

February 8, 2016

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Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/vertical-integration-worst-form-zero-rating
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on February 08, 2016 at 11:00AM

Full text: The Prohibition of Discriminatory Tariffs for Data Services Regulations, 2016

"27. Intuitively, the case-by-case approach may seem reasonable. However, this approach creates substantial social costs as noted by Barbara Van Schewick in "Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like," Stanford Law Review, 2015. First, a case-by-case regime will fail to provide much-needed certainty to industry participants. In the absence of a clear rule setting out the permissible and impermissible business practices, service providers may refrain from deploying network technology. This would be due to the fear that their conduct may subsequently be construed as being discriminatory as per the case-by-case analysis. Second, it will create high costs of regulation on account of the time and resources that will be required for investigating each case. It will also lead to further uncertainty as service providers undergoing the investigation would logically try to differentiate their case from earlier precedents. Third, there is also the concern that this approach provides a relative advantage to well-financed actors and will tilt the playing field against those who do not have the resources to pursue regulatory or legal actions. This may include end users, low-cost innovators, start-ups, non-profit organisations, etc. The Authority believes that these concerns are significant."

Original Publication:

IBN Live

Date published:

February 8, 2016

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Puget Sound Business Journal

Read Full Story from Architecture & Public Policy http://cyberlaw.stanford.edu/press/full-text-prohibition-discriminatory-tariffs-data-services-regulations-2016
This article by Center for Internet and Society originally appeared on cyberlaw.stanford.edu on February 08, 2016 at 11:00AM

T-Mobile to FCC: 'Tread lightly' on net neutrality investigation

"“If left unchecked, Binge On leads us down a slippery slope,” Stanford Law School professor Barbara van Schewick wrote in the study. “More and more (internet service providers) will become gatekeepers that pick winners and losers online, distorting competition for an increasing number of internet users.”"

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Date published:

February 8, 2016

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