The Move to the Middle: The Enduring Threat of "Harmful" Speech to Network Neutrality

29 Pages Posted: 17 Jul 2006

See all articles by John G. Palfrey

John G. Palfrey

Harvard Law School

Robert Rogoyski

Harvard University - Berkman Klein Center for Internet & Society

Abstract

This paper traces the evolution of thinking about the technical concept of the end-to-end principle and the legal concept of the regulation of the flow of packets across the Internet. We focus on the manner in which the state, in concert with private parties, has approached the tension between restricting the flow of certain packets and vindicating their citizens' interests, legal and otherwise, in free expression. We argue that the primary mode of legal regulation on the Internet has shifted from a focus on outlawing activities at the nodes—end-points in the network—to a growing emphasis on regulating closer to the middle of the network. This trend is, on its face, good for the law enforcement officer but worrisome to the technologist and the democratic activist: the end-to-end principle, held dear for decades by those who built the Internet, is under threat. In the process, this shift also places corporations, often based in jurisdictions beyond those in which they are doing business, in the position of enforcing the rules of the regime in which they are doing business, but whose views on free expression and other civil liberties the corporations' officers and directors do not share. We argue that the end-to-end principle, once translated loosely into political speak as "net neutrality," is a forceful rhetorical concept - and, if done right, sound public policy - but that it no longer describes Internet on the ground, if it ever did.

Keywords: Internet, governance, law, technology, corporations, network neutrality

JEL Classification: K11, K4, O3, O34

Suggested Citation

Palfrey, John G. and Rogoyski, Robert, The Move to the Middle: The Enduring Threat of "Harmful" Speech to Network Neutrality. Washington University Journal of Law and Policy, Forthcoming ; Berkman Center Research Publication No. 2006-08 . Available at SSRN: https://ssrn.com/abstract=916748

John G. Palfrey (Contact Author)

Harvard Law School ( email )

1545 Massachusetts Avenue
Areeda Hall 511
Cambridge, MA 02138
United States

Robert Rogoyski

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

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