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Publication Title

Washington University Journal of Law & Policy

Abstract

This Essay traces the evolution of thinking regarding the technical concept of the end-to-end principle and the legal concept of the regulation of the flow of packets across the Internet. We focus on the manner in which the state, in concert with private parties, has approached the tension between restricting the flow of certain packets and vindicating their citizens’ interests, both legal and otherwise, in free expression. We argue that the primary mode of legal regulation of the Internet has shifted from a focus on outlawing activities at the nodes—end-points in the network—to a growing emphasis on regulating closer to the middle of the network. This trend is, on its face, good for the law enforcement officer, but worrisome to the technologist and the democratic activist; the end-to-end principle, held dear by those who built the Internet for decades, is under threat. In the process, this shift also places corporations, often based in other jurisdictions, in the position of enforcing the rules of the regime in which they are doing business, but whose views on free expression and other civil liberties the corporations’ officers and directors do not necessarily share. We argue that the end-to-end principle, once translated loosely into political speak as “net neutrality,” is a forceful rhetorical concept—and, if done right, sound public policy—but that it no longer describes the Internet on the ground, if it ever did.

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