Academic

Zittrain on Net Neutrality as Diplomacy

By Lawrence Solum

Jonathan Zittrain (Harvard Law School and Kennedy School) has posted Net Neutrality as Diplomacy (Yale Law & Policy Review, Vol. 29, 2010) on SSRN. Here is the abstract:

Popular imagination holds that the turf of a state?s foreign embassy is a little patch of its homeland. Enter the American Embassy in Beijing and you are in the United States. Indeed, in many contexts ? such as resistance to search and seizure by a host country?s authorities ? there is an inviolability to diplomatic outposts. These arrangements have been central to diplomacy for decades so that diplomats can perform their work without fear of harassment and coercion.

Complementing a state?s oasis on foreign territory is the ability to get there and back unharried. Diplomats are routinely granted immunity from detention as they travel, and la valise diplomatique ? the diplomatic pouch ? is a packet that cannot be seized, or in most cases even inspected, as it moves about. Each pouch is a link between a country and its outposts dispersed in alien territory around the world.

Citizens and their digital packets deserve much the same treatment as they traverse the global Internet. Just as states expect to conduct their official business on foreign soil without interference, so citizens should be able to lead digitally mediated ? and increasingly distributed ? lives without fear that their links to their online selves can be arbitrarily abridged or surveilled by their Internet Service Providers or any other party. Just as the sanctity of the embassy and la valise diplomatique is vital to the practice of international diplomacy, the ability of our personal bits to travel about the net unhindered is central to the lives we increasingly live online.

This frame differs from the usual criteria for debating the merits of net neutrality. It does not focus on what makes for more efficient provision of broad-band services to end users. It is unaffected by what sorts of bundling of services by a local ISP might intrigue the ISP?s subscribers. It does not examine the costs and benefits of faraway content providers being asked to bargain for access to that local ISP?s customers. Instead, it recognizes that Internet users establish outposts far and wide, and that a new status quo of distributed selfhood is quickly taking hold.

Full post as published by Legal Theory Blog on December 29, 2010 (boomark / email).