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Trustworthiness as a Limitation on Network Neutrality

I. INTRODUCTION II. TRACING TRUSTWORTHINESS THROUGH THE NETWORK NEUTRALITY DEBATE A. Defining Trustworthiness 1. Confidentiality 2. Communications Privacy 3. Integrity 4. Availability 5. Correctness B. Trustworthiness as a Limitation on Nondiscrimination in Common Carrier Regulations C. Trustworthiness as a Limitation in Network Neutrality Rules 1. Narrow Exception 2. Medium Exception 3. Broad Exception III. THE IMPLICATIONS OF TRUSTWORTHINESS EXCEPTIONS IN NETWORK NEUTRALITY RULES A. Isolation from Unwanted Traffic 1. Isolation as a Consumer Service 2. Isolation as Provider Policy 3. Isolation Under the Broad Exception B. Availability and Integrity: Attribution of Path C. Privacy and Confidentiality: Guarantees Against Logging D. Trustworthiness and Wireless Net Neutrality IV. KEEPING TRUSTWORTHINESS EXCEPTIONS LIMITED THROUGH DISCLOSURE A. Mechanisms to Deter Trustworthiness-as-Pretext B. Striking the Right Balance for Trustworthiness Disclosures V. CONCLUSION I. INTRODUCTION In the United States and other technologically advanced countries, individuals, businesses, and governments have come to depend on the Internet. Daily reports of attacks, accidental data leaks, and service disruptions suggest that the proper functioning of the Internet is not something to take for granted. Trustworthiness--a concept that encompasses not only security but also safety, survivability and other properties that guarantee expected behavior--is becoming a prominent research and public policy objective. Internet trustworthiness is hardly the only objective of Internet policy, and setting the terms under which new applications and content sources can reach Internet users has become a focus of much recent debate. Scholars and policymakers have cast this debate in terms of network neutrality, which holds that network providers may not block, degrade, or otherwise discriminate against applications or content sources. A permissive regulatory environment might allow such discrimination, and the lack of competition in last mile broadband connections might well make it profitable. What are the implications of a network neutrality rule for trustworthiness (and vice versa)? Scholars and policymakers have thus far given only superficial answers to this question or avoided it entirely, concentrating instead on whether a network neutrality rule would help or hurt innovation on the Internet. Network neutrality opponents argue that improved security is one type of innovation that might follow from not imposing a network neutrality rule, but this position ignores the technical and economic issues that make improving trustworthiness a hard problem. (1) Proponents, on the other hand, concede that network security is crucial enough to warrant making exceptions to a network neutrality rule. Allowing network providers to deviate from neutrality only to the extent necessary to protect network trustworthiness is rooted in judicial and regulatory decisions and administrative rules that helped establish the principle of nondiscrimination as the core of network neutrality. This doctrine of trustworthiness-by-exception stretches back over fifty years and developed around the telephone network. Whether this doctrine is suitable for the technical and institutional complexity of the Internet is unclear, and network neutrality proponents have not made the case that it applies. We argue in this Article that using trustworthiness as a limitation on network providers' nondiscrimination obligations is basically sound and that the set of trustworthiness mechanisms network operators may deploy depends heavily on the exact language of the (proposed) exception. (2) Some existing proposals would likely thwart valuable trustworthiness mechanisms, while others could allow network providers to use trustworthiness as a pretext to discriminate while doing little to improve trustworthiness. …