Network Neutrality: What a Non-Discrimination Rule Should Look Like

Article Source: Stanford Law and Economics Olin Working Paper No. 402, 2010
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The author argues that a rule banning application-specific discrimination is the best solution for network neutrality.


Policy Relevance:

Network neutrality requires regulatory action in order to encourage beneficial discrimination and discourage harmful discrimination of Internet applications and content. A rule that bans all application-specific discrimination but allows application-agnostic discrimination would be the best rule.


Key Takeaways:
  • “Network neutrality” focuses on the question of whether governments should make rules that limit how much network providers can interfere with the applications or content on their networks.
  • The rule for enforcing network neutrality should meet the following criteria: protects innovation and democratic discourse, does not constrain the evolution of the network more than necessary, makes it easy to determine the types of behavior allowed, and keeps regulation costs low.
  • One proposed rule would ban discrimination based on whether it harmed either users or competition. That determination would be made in case-by-case adjudication.
  • A discrimination rule based on harm to user or competition would be difficult to apply because the terms are subject to varying definitions. Moreover, case-by-case adjudications lack certainty and stack the deck against end users who lack the resources to challenge adjudications.
  • On the other hand, a discrimination rule that bans all application-specific discrimination while allowing all application-agnostic discrimination would work well.
  • This rule would protect end users and applications. It would allow end users to determine how they want to use the network. This would protect the criteria that network neutrality seeks to foster.
  • This rule would still allow network providers to manage congestion, but in a way that protects users by allocating bandwidth fairly according to the discrimination-agnostic principle. Tools to do this are available today.
  • Finally, a discrimination-agnostic rule would provide certainty to those in the industry and thus help keep regulation costs low.



Barbara van Schewick

About Barbara van Schewick

Barbara van Schewick is the M. Elizabeth Magill Professor of Law at Stanford Law School, Director of Stanford Law School’s Center for Internet and Society, and Professor by courtesy of Electrical Engineering in Stanford University’s Department of Electrical Engineering. Her research focuses on the economic, regulatory, and strategic implications of communication networks. In particular, she explores how changes in the architecture of computer networks affect the economic environment for innovation and competition on the Internet, and how the law should react to these changes.

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