Network Neutrality: Laissez-Faire Approach or Not?

Abstract

The paper discusses the topical subject of network neutrality, from a US and European legal perspective. Whilst acknowledging the plethora of literature on network neutrality, it argues that regulation in favour of network neutrality should not be confined with the US/European borders but that network neutrality should be addressed from a global perspective through the OECD/WTO. The article will begin by defining network neutrality, before discussing the technology underpinning network neutrality. It will compare the different legal approaches adopted by Europe and the US to the regulation of network neutrality. In Europe, there is an existing electronic communications regulatory framework, which can be used to address the network neutrality problem. In particular, this article will examine the Access and Interconnection Directive, arguing that further regulations at European level are not necessary given the legal infrastructure. The main concerns arising from the US unilateral stance is whether it will cause a digital divide in the electronic communications market? Legislating in the area of network neutrality is not perceived in Europe as necessary. Any regulation at a European level would disrupt the existing electronic communications framework. In the US, network neutrality appears to be the only legal viable path. Network technology violates the spirit of the US Wiretap Law and several State specific privacy laws. The article will conclude that the US stance to adopt network neutrality legislation will cause a seismic shift in the way we view technology.

Keywords: Network neutrality, Access and Interconnection Directive, network operators, Privacy