From Pokémon Go to Whatsapp: Challenges to Net Neutrality in the U.S. and Colombia

MONCADA_pokemongo_iphonedigital

Gotta catch ’em all! (Photo by iphonedigital.)

By Catalina Moncada

Unless you’ve been living under a rock for the past few weeks, you’ve likely heard about Pokémon Go, the augmented reality game from Nintendo that’s become a hit around the world. According to SimilarWeb, the game has been installed on more devices than Candy Crush, LinkedIn and Tinder, and totaled more than 26 million daily active users in United States just two days after its release.MONCADA_pokemongo_cellphoneimage

Due to the huge success of Pokémon Go, many businesses around the world are trying to benefit from the number of users the application has generated. One of these companies is T-Mobile, the international mobile phone services provider. In late July, T-Mobile sent out a text message to millions of its United States users saying, “Play Pokémon Go data-free for a full year when you download the T-Mobile app!”

As much as we would all love to play Pokémon Go without sacrificing our data, this raises an issue of infringement. Is T-Mobile’s offer a violation of the “net neutrality” principle?

Net neutrality is a principle recognized by the United Nations Human Rights Council that states that the Internet has an open nature, and while referring to human rights on the Internet, no single type of Internet traffic should be prioritized over another.

Given the guidelines of this principle and the role of T-mobile as an Internet provider, is T-Mobile therefore breaking the spirit of net neutrality? Some might say so. Although T-Mobile is not charging more money to offer its users a better experience while using the app, it isn’t blocking any content either. It is actively establishing a zero-rate for data usage while playing Pokémon Go, in effect privileging Pokémon Go content over others.

Similarly in Colombia, there have been multiple instances of questionable infringement on the net neutrality principle. Despite the State’s recognition of the principle under “Resolution 3502 of 2011,” in 2015, the Colombian government continued to endorse the “Internet.org” initiative promoted by Facebook for Internet providers to offer free access of certain content to users. Customers did not have to pay to enjoy apps like Messenger, Wikipedia, and UNICEF, but they were charged for using the non-chosen apps.MONCADA_pokemongo_pokemonimage

Other examples include cellphone companies Tigo and Claro, whom offer plans in which customers can get zero-rate prices for accessing apps like Facebook or Whatsapp but still have to pay for others like Viber.

What does this mean for us? The notion of the Internet as a “democratic” and permission-free environment is at risk. The Internet is now becoming more susceptible to transforming into a good where developers would have to ask Internet providers for permission not only to develop, but to commercialize the apps they’ve been developing freely until now. As a consequence, broadband providers will have power in deciding what kind of content is more likely to circulate the Internet, and what we as users will be more likely to see.

Nonetheless, so far, the effects of T-Mobile’s marketing offer have just been overall hype, and aren’t yet realized. In addition, measuring the real implications of this behavior is not easy, as it is difficult to determine whether the increase in T-Mobile Pokémon Go users is due to T-Mobile’s actual marketing offer, or simply because of the attractiveness of the app itself, or both. What we do know, however, is that this case of T-Mobile could be the discovery of a loophole in the application of the remarkable net neutrality principle.

Catalina Moncada headshotCatalina Moncada received her Master of Laws from UC Berkeley. She is passionate about the intersections of law, technology and intellectual property. You can read more of her posts here.

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