Net neutrality is a principle that says no Internet traffic should get special treatment, and Internet service providers can’t block or degrade certain traffic because the website or service pumping it out isn’t willing to pay up for prioritization. With the relevance of the internet to almost everyone in the Philippines, there is an emerging ecosystem that needs to be regulated as it may soon be the subject of many issues and disputes. There are many options to approach this like making internet a “public utility” but a better option is to strengthen the rules and regulations, which may already be implied, surrounding net neutrality to ensure net neutrality is protected.
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Changing times bring with it new issues and disputes not present during the past. It challenges our society to adapt and innovate in order to manage the new complications which arise as our societal interactions become more and more complex. This is true with our laws tackling new situations each time a new dispute not yet apparent when those laws were enacted or when a law is no longer considered to be good law because of societal shifts and new practices and customs are either no longer practiced or when a new innovation requires regulation that was not needed before. The best example for this in the past decade is rise to prominence of the internet. It introduced to world a whole new level of communication, expression, a new way for people to connect, and interact with one another. This unprecedented modernism in our society brought with, and is still bringing, an ecosystem which is not yet fully covered by laws. This ecosystem that keeps bringing up new disputes and issues to the forefront. One of which is an equitably new issue looming over the horizon which may fall to our shores in near future. The issue of Net Neutrality.
“There is no single accepted definition of “net neutrality.” However, most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network, and they should not be able to discriminate against content provider access to that network.”[1] To put it simply, according to the definition given by the Body of European Regulators for Electronic Communication (BEREC) “no blocking or throttling or discrimination of online content, applications and services.”[2] This rule enshrined in the law of EU has three exhaustive exceptions; compliance with legal obligations; integrity of the network; congestion management in exceptional and temporary situations. These exceptions seem to be acceptable to protect against any unlawful acts which end-users may use the internet for and it gives discretion to the to the enforcement of net neutrality without being completely falling into the pitfall of no blocking or throttling or discrimination of online content, application and services.
To understand better the why this is an important issue, let first take look at some facts. An Internet Service Provider (ISP) is the company that connects you to the internet, e.g. Globe and PLDT. To give it an analogy, we can think of the internet as a road network and the Internet Service Providers are the ones maintaining your driveway. As an end-user on the internet, you get to choose where you want to go and what destinations or sites you want to visit. Then your Internet Service Provider gives you access to all websites on the same term. There are of course some issues as some sites use more data than others. Take for example when you have a 10GB data available you can only access a few videos if you visit Youtube but you can browse Facebook and send email in an almost endless amount because accessing videos require higher data usage than sending emails or scrolling through Facebook.
This of course seems ok when applied to data usage limits only as this method is already being used by our Internet Service Providers. But let us say you have unlimited data usage meaning you can access any site for an unlimited data for the time you purchased the service. You access a high data site for an extended amount of time during your use of the service. This would cost the ISPs more than if you just sent emails while your avail the service. Consequently, the ISPs are requesting for a “Fast Lane” so they can charge the user more for accessing certain websites. At first glance, there does not seem to be a problem with this. The Internet Service Providers can just create a new lane where they can charge users for faster connection. This is not the case however as the creation of a fast lane would mean the sabotaging the “Regular Lane”. It is like having a toll fee to access the highway and without paying it would leave you on a bumpy road with potholes. This would mean that if I want to watch movies all day, not only would you have to pay for unlimited internet access, you would also have to pay for a faster connection.
If net neutrality or ‘open internet’ is removed, the Internet service providers could charge more, not just the end-users, but also the Content Providers. Content providers are those companies or individuals who provide the material or “content” which we access through platforms usually through websites. The users would end up paying double the amount that should already have been provided for them. It is similar to like calling on a phone line before where you charge with the call and you are also charged additional fees to ensure you do not have a choppy conversation.
The scope of net neutrality is vast and over-arching. There are different issues with legislation, execution, and application. In the words of Tim Berners-Lee “To actually design legislation which allows creative interconnections between different service providers, but ensures neutrality of the Net as a whole may be a difficult task. It is a very important one… The neutral communications medium is essential to our society. It is the basis of a fair competitive market economy. It is the basis of democracy, by which a community should decide what to do. It is the basis of science, by which humankind should decide what is true.”[3] It is difficult task that we are faced in this generation and we should approach it critically and cautiously. This research however will not be covering every issue as the scope would be too vast to cover and in some places, this issue is still being debated.
The focus of this research would be primarily on our current set of laws and their applicability in the issues of net neutrality. Although this issue is not yet widespread here in the Philippines as compared to the “War on Drugs” which was launched by President Duterte during his 1st year in office. It is still an issue worth tackling as an issue regarding how we use and are able use the internet affects everyone regardless of borders.
We would mainly be focused into the applicability of our laws on the issue of net neutrality. On Cybercrime Prevention Act of 2012 as it is the closest thing we have in terms of criminal laws in cyberspace. We would also take a look if the removal of net neutrality would constitute a violation under the Bill of Rights. Lastly, also take into consideration the memorandum issued by the Telecommunications board.
It is quite apparent that this paper is for the net neutrality and not for its removal. This paper will focus more not on whether the preservation of net neutrality is one we should be fighting for or going against but up to what extent is the applicability of our current laws to the issue of net neutrality. We are instead going to the current provisions of our laws and how they apply, if they are applicable, to the preserving and ‘open internet’ or net neutrality.
The issue of net neutrality is still being debated all over the world some have geared towards its preservation and other have not and have abolished net neutrality in favor of regulation of data transfer. There are valid arguments on both side but for the sake of this paper we will be focusing on how our laws are applicable for the former rather than the latter.
Cyberspace is a new arena where laws and regulations have yet to cover the full expanse. Laws and jurisprudence has yet to take a deep dive to explore and the very depths of the web and map it out with laws or regulation in order to promote the welfare of people. How the internet should be accessed and the proper etiquette online is only starting to show its visage to us and we are still continually trying to improve on it. We have also tried to prevent and unlawful act which may rise from the use of the internet. The “Cybercrime Prevention Act of 2012”.
When this law enacted it gave the power to the Department of Justice (DOJ) to restrict or block access to computer data:
Section 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.[4]
This was declared unconstitutional however where the Supreme Court ruled that:
Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so would make him judge, jury, and executioner all rolled into one(Pita v. Court of Appeals, supra note 30, at 151.).
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear and present danger rule. (Chavez v. Gonzales, 569 Phil. 155) Section 19, however, merely requires that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to freedom of expression and against unreasonable searches and seizures.[5]
The title as well as the definition of this section does coincide with what BEREC has prohibited, the blocking or throttling of data. Although this may not be word for word as there is no mention of slowing down the access of data to the computer. Restricting the access to data is ruled to have been unconstitutional by the Supreme Court however it does not clearly say the prohibition of merely slowing down the internet connection.
Throttling data is not so far from restricting or blocking it. Take for example to set the access to a certain site at around 127kbps and you give another site 10mpbs. It is obvious that people would be frustrated and consider accessing the former site as a massive aggravation instead of accessing the latter site. Let us say back when Friendster was a prominent social media site and Facebook was yet to become the juggernaut it is today. Facebook at the time could only afford around 56kbps whereas Friendster could afford 1mbps. Facebook would not have become what it is today and we would be still be using Friendster. By throttling the speed of data in accessing Facebook you basically restrict end users in accessing that data for it can just load for hours and the end-user accessing it would just get frustrated and leave the site altogether. Throttling enough of the data transfer speed can be considered as restricting data. We may consider throttling as also violative to freedom of expression similar to that of blocking.
There should always be equal access to all sites available to ensure people are able to express themselves and be able provide content without any additional payment or cost depending on the site they visit. This does not mean they can do unlawful acts on cyberspace freely without penalties. Provisions enshrined in the Cybercrime Prevention Act of 2012 punishes those unlawful acts.
The Telecommunications have blocked certain sites. Back in January 2017 some porn sites were banned by Internet Service Providers of this country. Top porn sites like Pornhub, Xvideos, and Redtube are no longer accessible. Even today PLDT has restricted the access to these sites. The reason being these sites contain child pornography. A Memorandum issued by the National Telecommunications Commission ordered the internet service providers to “install available technology, program or software that will block access or filter all websites carrying child pornography materials.”[6] This was in pursuant to Republic Act (RA) 9775 or the Anti-Child Pornography Act of 2009, RA 7925 or the Public Telecom Policy Act of 1995, and Executive Order No. 546 issued in 1979. Section 4 (f) of RA 9775 provides:
Section 4. Unlawful or Prohibited Acts. – It shall be unlawful for any person:
Xxxx
(f) For film distributors, theaters and telecommunication companies, by themselves or in cooperation with other entities, to distribute any form of child pornography;[7]
There have been debates on whether the sites should be permanently banned as these site. The proposed ban has sparked a buzz in social media, with a number of netizens expressing disbelief on the proposal.[8]
This shows that the government can restrict access to sites if it considers it an unlawful act. Beyond that however, there should not be and discrimination when it comes accessing site and data transfers. To go back to the earlier analogy, there should be no toll to access the highway. The internet service providers should make a profit by connecting the end-user to the internet and not by holding the connection hostage.
Cyberspace has always been an open arena where one can express his idea and be able to communicate with people from across the world. It is a platform where one can become famous or earn a living. Jobs now are gearing towards being able to work at home and this will become apparent in later years. The connection should not be held hostage just to ensure a high speed connection.
So far our laws seem to be favoring the preservation of net neutrality or ‘open internet’. There is jurisprudence which declared unconstitutional the government from blocking any site simply with a prima facie violation of the laws. This also strengthens the argument for freedom of speech and against unreasonable searches and seizures. With RA 10175 in place it also ensures that interaction by netizens in cyberspace are protected from unlawful and punishes those who commit those acts.
There is still room for law making and improvement
later on. It could also go in a complete opposite direction and net neutrality
might be abolished. So far it looks like the applicability of our laws are in
favor in the preservation of net neutrality.
[1] Gilroy, Angele A. (March 11, 2011). Access to Broadband Networks: The Net Neutrality Debate (Report). DIANE Publishing. p. 1.
[2] BEREC. All you need to know about Net Neutrality rules in the EU.
[3] Berners-Lee, Tim (2 May 2006). “Neutrality of the Net”. timbl’s blog. Archived from the original on 1 January 2009. Retrieved 20 December 2018.
[4] Republic Act No. 10175
[5] G.R. No. 203335
[6] https://www.rappler.com/nation/53194-ntc-isps-block-child-porn-websites, Accessed 23 Dec. 2018
[7] Republic Act No. 9775
[8] https://technology.inquirer.net/34906/ntc-says-proposed-ban-applies-only-to-child-porn-sites, accessed 23 Dec. 2018
Researcher: Justin Eric Pabon
Philippine Legal Research 