Over the past ten years, the debate over "network neutrality" has remained one of the central debates in Internet policy. Governments all over the world, including the United States, the European Union, the United Kingdom, France and Germany, have been investigating whether legislative or regulatory action is needed to limit the ability of providers of Internet access services to interfere with the applications, content and services on their networks.

Beyond rules that forbid network providers from blocking applications, content and services, non-discrimination rules are a key component of any network neutrality regime. Non- discrimination rules apply to any form of differential treatment that falls short of blocking. Policy makers who consider adopting network neutrality rules need to decide which, if any, forms of differential treatment should be banned. Network neutrality proponents generally agree that network neutrality rules should preserve the Internetʼs ability to serve as an open, general- purpose infrastructure that provides value to society over time in various economic and non- economic ways. There is, however, a lot of uncertainty on how to get from a high-level commitment to network neutrality to a specific set of rules.

The decision for a non-discrimination rule has important implications: Non-discrimination rules affect how the core of the network can evolve, how network providers can manage their networks, and whether they can offer Quality of Service. Often, it is not immediately apparent how a specific non-discrimination rule affects network providersʼ ability to offer Quality of Service. At the same time, it is unclear which forms of Quality of Service, if any, a network neutrality regime should allow.

This paper proposes a framework that policy makers and others can use to choose among different options for network neutrality rules and uses this framework to evaluate existing proposals for non-discrimination rules and the non-discrimination rule adopted by the FCC in its Open Internet Order. In the process, it explains how the different non-discrimination rules affect network providersʼ ability to offer Quality of Service and which forms of Quality of Service, if any, a non-discrimination rule should allow.

About the Author

Barbara van Schewick is an Associate Professor of Law and Helen L. Crocker Faculty Scholar at Stanford Law School, an Associate Professor (by courtesy) of Electrical Engineering in Stanford University’s Department of Electrical Engineering, Director of Stanford Law School’s Center for Internet and Society, and a leading expert on network neutrality.

Her research on the economic, regulatory, and strategic implications of communication networks bridges law, networking and economics. Her book Internet Architecture and Innovation (MIT Press 2010) is considered to be the seminal work on the science, economics and policy of network neutrality. Her papers on network neutrality have influenced regulatory debates in the United States, Canada and Europe. Van Schewick has testified before the FCC in en banc hearings and official workshops. In October 2010, van Schewick received the Research Prize Technical Communication 2010 from the Alcatel-Lucent Stiftung for Communications Research for her pioneering work in the area of Internet architecture, innovation and regulation.