Federal Communications Law Journal

Document Type


Publication Date


Publication Citation

61 Federal Communications Law Journal 591 (2009)


The policy debate over how to govern access to broadband networks has largely ignored the objective of network trustworthiness-a set of properties (including security, survivability, and safety) that guarantee expected behavior. Instead, the terms of the network access debate have focused on whether imposing a nondiscrimination or "network neutrality" obligation on network providers is justified by the condition of competition among last-mile providers. Rules proposed by scholars and policymakers would allow network providers to deviate from network neutrality to protect network trustworthiness, but none of these proposals has explored the implications of such exceptions for either neutrality or trustworthiness.

This Article examines the relationship between network trustworthiness and network neutrality and finds that providing a trustworthiness exception is a viable way to accommodate trustworthiness within a network neutrality rule. Network providers need leeway to block or degrade traffic within their own subnets, and trustworthiness exceptions can provide them with sufficient flexibility to do so. But, the Article argues, defining the scope of a trustworthiness exception is critically important to the network neutrality rule as a whole: an unduly narrow exception could thwart innovative network defenses, while a broad exception could allow trustworthiness to become a pretext that protects a wide range of discrimination that network neutrality advocates seek to prevent. Furthermore, monitoring network providers' use of a trustworthiness exception is necessary to ensure that it remains an exception, rather than becoming a rule. The Article therefore proposes that network providers be required to disclose data regarding their use of a trustworthiness exception . It also offers a general structure for managing these disclosures