Do conduit neutrality mandates promote or hinder trust in Internet-mediated transactions?

摘要

As the Internet evolves and matures, Internet Service Providers ("ISPs") have devised increasingly diversified business models for serving downstream end users and upstream content providers. The need to accommodate subscriber demand for more bandwidth also necessitates efforts by ISPs to generate higher revenues by differentiating service on the basis of subscriber access requirements and other customer-specific demand characteristics. ISPs have identified new strategies to diversify their offerings on the basis of price, quality of service, transmission speeds, permissible amount of capacity uploaded and downloaded, legitimate network management objectives and the demand for customer-specified network features. Advocates for limiting price and service discrimination contend that absent a "network neutrality" mandate, ISPs will discriminate in ways that harm competitors by favoring corporate affiliates and selected third parties. Network neutrality supporters claim that ISPs have both the incentive and ability to engage in harmful discrimination, typically characterized by ISPs as necessary network management, or a legitimate response to the specific requirements of a customer. This article will consider ISP conduit neutrality in the context of whether and how legislatures and national regulatory authorities can enhance trust and network reliability. It will assess how network management techniques can offer both quality of service improvements and deliberately inferior service. Starting from the observation that technological innovations provide the ability to build trust in Internet-mediated transactions, the article aims to identify legislative and regulatory strategies that can pass judicial review while also promoting network management goals that enhance cloud computing, electronic commerce and other transactions without affording ISPs unconditional opportunities also to harm competition and consumers. Using the United States network neutrality debate and legislation in that country designed to insulate ISPs from liability for carriage of harmful content, the article suggests that nations need to craft and use flexible solutions to access disputes. Fixed laws, regulations and policies in the U.S. have reduced trust in part because they either have questionable legality, or generate unintended incentives for ISPs to refrain from implementing techniques and strategies from enhancing the reliability and safety of personal and commercial transactions. The article concludes with a recommendation that nations implement flexible administrative mechanisms for dispute avoidance and resolution.