Maria Sevlievska is a Bulgarian legal academic writing in the UK and US context. She holds an LLB from the London School of Economics and is currently pursuing an LLM in Information Technology Law there. She is an incoming Trainee Solicitor, and previously participated in the creation of the UK’s first student-led Law Review and served as its Editor.
Zero-Rated Data: Pay With Rights, Not Money
The Internet gives us the unique opportunity of inhabiting two worlds at once. Governed by code instead of law uninhibited by presumptive social architecture etc., virtual reality indeed begins to appear distinct from its offline equivalent.
The one distinction we cannot allow, however, is in the values that define these realms.
A recent article by Doug Brake on Mobile Zero-Rated Data highlights precisely this issue. In his article, Brake defends the economic benefits of zero-rated data (data that does not count toward the user’s data cap)and in turn, the non-neutral Internet that its provision is premised on (Galpaya, 2017). Focusing on Mobile Zero-Rated Data as a sign of “healthy product differentiation,” Brake neglects the importance we, as a society, place on privacy, freedom of expression and fair competition (Brake, 2016). This is a fatal error: our rights should be protected just as rigorously on the Internet as they are in real life.
The dangers of a non-neutral Internet
Zero-Rated Data is in itself harmless – it is – supposedly - no more than data that a user receives from its mobile provider ‘free of charge’ (Galpaya, 2017). Facebook, for example, collaborates with mobile network providers in emerging economies to offer ‘free’ access to select content on its Free Basics platform (ibid).
The caveat, however, is that zero-rated data’s functionality is premised on the absence of net neutrality – a principle that demands that all data is treated equally. Instead, “free content must be prioritized over paid for-content” (Galpaya, 2017).
This translates to numerous rights abuses.
Freedom to conduct business: Zero-rated data counters the attempts of net neutrality to protect fair competition (Article 16ECFR) (Murray & Audibert, 2016). It relies on “deep-pocketed corporations” knowingly purchasing “an unfair advantage” over smaller competitors which can seldom afford to give data away gratuitously (Hahn & Wallsten, 2006).
Freedom of Expression: Zero-rated data violates our right to receive and impart information without interference (Article 10 ECHR) (U.S. Const., amend. I).It entails a change in the Internet’s architecture which creates a ‘walled garden’ of content, censoring us from the plurality of sources of information available online.
Privacy: Zero-rated data hinders our right to privacy (Article 8 ECHR) (U.S. Const., amend. IV). Preferential data treatment utilises Deep Packet Inspection, a traffic management practice that inspects the content of the data being transported before assigning priority to it (Murray & Audibert, 2016). Our correspondence is thus intercepted, making technology “an aid to unacceptable intrusion into citizens’ communications” (Sluijs, 2012).
These rights, fundamental by definition, cannot be side-tracked by a want for ‘innovation’, ‘competition’ or any other economic justification Brake may enlist.
‘A boon to the poor’?
Zuckerberg has said that connectivity too is a basic human right (Shearlaw, 2014). If this were so, then Mobile Zero-Rated Data would facilitate its protection; offering those in developing countries access to otherwise unavailable information (Brake, 2016). In addition, what would be at issue is which right to prioritize; and not what sort of virtual reality we wish to construct.
Sadly, such an argument is misguided. First, censored connectivity can never be a human right. The value of the Internet lies in its democratic inclusivity. (Murray & Audibert, 2016). Hand-picked data defies such a definition. Indeed, we could categorize open Internet access as a fundamental right, and thereby add a further Zero-rated data induced violation to our list of three.
Second, the ‘unconnected’ are not zero-rated data’s greatest benefactors. Instead, platforms like Free Basics, are most popular amongst those that need more data than they pay for (Galpaya, 2017). This is unsurprising as the poor often lack both the digital literacy and the necessary technology to access the Internet.
The current regulatory approach has failed us. The Federal Communications Commission’s case-by-case ‘whack-a-mole’ in the US and the EU’s model of self-regulation are clearly too laissez-faire to ensure that the Internet mimics the real world in its respect for fundamental rights (Schwarb, 2014).
In selecting the appropriate response, there are four modalities, which we may turn to: norms, the market, code and law (Lessig, 2006).
Norms are clearly futile in compelling internet service providers to respect our rights.
Market forces are equally unsuitable. Though the presumption is that internet service providers may lose market shares if their practices become too discriminatory, customers seldom appreciate the implications of such practices, and cannot easily switch providers (Murray & Audibert, 2016).
We must, therefore, utilize code and law to:
1. Ban unreasonable discrimination of data, throttling and paid prioritization – mandating neutrality and prohibiting zero-rated-type practices.
2. Require that internet service providers disclose detailed information about their network management practices to both authorities and
3. Analogize internet service providers to public bodies in law, so as to be subject to the same standards of human rights protection as their offline equivalents; endorsing an internal perspective of the Internet.
Brake, D. (2016, May 23). Mobile Zero Rating: The Economics and Innovation Behind Free Data. Information Technology & Innovation Foundation.
Brake, D. (2018, May). Why We Need Net Neutrality Legislation, and What It Should Look Like. Information Technology & Innovation Foundation.
Galpaya, H. (2017, February). Zero-rating in Emerging Economies.Retrieved from Global Comission on Internet Governance.
Hahn, R., & Wallsten, S. (2006). The Economics of Net Neutrality. Economists’ Voice.
Lessig, L. (2006). Code, and Other Laws of Cyberspace. Perseus Books Group.
Murray, A. D., & Audibert, L. C. (2016, August). A Principled Approach To Network Neutrality. 13:2 SCRIPTed 118 , https://script-ed.org/?p=3149.
Renda, A. (2015, April 17). Antitrust, Regulation and the Net Neutrality Trap: A plea for a smart, evidence-based internet policy. Retrieved from CEPS: https://www.ceps.eu/publications/antitrust-regulation-and-neutrality-trap
Schwarb, A. (2014, November 19). Obamacare, Net Neutrality, and “Whac-a-Mole” Regulation. Retrieved from WBOI: http://www.wboi.org/post/obamacare-net-neutrality-and-whac-mole-regulation#stream/0
Shearlaw, M. (2014, January 3). Mark Zuckerberg says connectivity is a basic human right – do you agree? . Retrieved from BBC: https://www.theguardian.com/global-development/poverty-matters/2014/jan/03/mark-zuckerberg-connectivity-basic-human-right
Sluijs, J. P. (2012). From Competition to Freedom of Expression: Introducing Article10 ECHR in the European Network Neutrality Debate. Human Rights Law Review.