A market-based, voluntary open internet, privacy regime is doable

The best protection on the internet is self-protection and a self-protection regime does not have to be implemented via any additional government rules. Rather, for a subscriber to broadband access services provided by an internet service provider, the subscriber should avail themselves of the opportunity to enter into voluntary agreements as to the level of privacy and open internet protections they wish to purchase. The discussion regarding the confusing legal verbiage of written terms and conditions offered to a broadband access subscriber by an ISP should raise the question, “Would transparency best brought about if negotiation of agreements were more bilateral in nature?”

Before delving in any further to the primary question, let me attempt to dispose of one other question that arose in your mind when I posed the first question. “Do people have time to negotiate an agreement for broadband access services?” My response: “Why not?”

Advocates for net neutrality rules captured in the Federal Communications Commission’ 2015 Open Internet Order argue that broadband is now an essential part of the life of the individual and that today’s economy is robust because of high-speed access to the internet. Broadband access, the advocates would argue, should be treated like a utility service given its importance in sustaining the household.

Some would argue that broadband access does not arrive to the level of human necessity, no matter what a number of international organizations have argued.  Among those in disagreement with the “broadband equal to a utility” argument is FCC member Michael O’Rielly, who on a number of occasions has clearly expressed that people do not need broadband to live.  Mr O’Rielly is not alone in his assessment. His two other Republican colleagues, FCC chairman Ajit Pai and FCC member Brendon Carr also agree that 20th century treatment of a competitive 21st century technology such as broadband should not be regulated as a utility.

But for the sake of argument, let us say that broadband access arises to the level of a utility service. If it is that important to life, why would you not negotiate its terms and conditions?  During a negotiation for broadband access, more than likely the ISP would offer some canned language describing minimum services with a list of add-ons and opt-ins for the subscriber to voluntarily agree to. The ISP may offer different tiers of service where each tier provides various levels of privacy protection, transparency, and options for download and upload speeds. If technology permits, there could even be allowance for traffic from chosen websites that receive priority.

In the end, a subscriber’s willingness and ability to pay for different tiers of service will determine the level and amount of privacy and openness she receives on the internet.

I think an answer from the second question provides an answer to the first. Negotiating terms and conditions of service should lead to more transparency because the consumer had a direct hand in creating her services package.  The subscriber would have first hand knowledge about the amount of privacy protection she has bargained for.  But the direct hand in negotiating agreements requires the subscriber’s willingness to educate herself on how her product works. This is a level of knowledge that consumers fail to obtain because they may consider gaining that knowledge to expensive and time consuming. Hence their love for consumer protection agents. They can punt the responsibility of an alleged important, utility style service to them.