Jonathan Zittrain reframes Network Neutrality through a comparison with diplomatic rights accorded to states:

“Just as states expect to conduct their official business on foreign soil without interference, so citizens should be able to lead digitally mediated—and increasingly distributed—lives without fear that their links to their online selves can be arbitrarily abridged or surveilled by their Internet Service Providers or any other party. Just as the sanctity of the embassy and la valise diplomatique is vital to the practice of international diplomacy, the ability of our personal bits to travel about the net unhindered is central to the lives we increasingly live online.

This frame differs from the usual criteria for debating the merits of net neutrality. It does not focus on what makes for more efficient provision of broadband services to end users. It is unaffected by what sorts of bundling of services by a local ISP might intrigue the ISP’s subscribers. It does not examine the costs and benefits of faraway content providers being asked to bargain for access to that local ISP’s customers. Instead, it recognizes that Internet users establish outposts far and wide, and that a new status quo of distributed selfhood is quickly taking hold. This status quo is enabled by neutral access among all points of presence on the Internet, and underscores the expectations that are settling as one point forges ongoing connections with others. These users have come to expect, and greatly benefit from the fact, that “far” is irrelevant—everything is in fact only a click away—and “wide” can become narrow on demand: data and activities from multiple sources can be seamlessly integrated into one’s personal page or portal.

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Translated to the digital realm, the diplomatic example captures the notion that citizens have the right to communicate both with one another and, in a cloud environment, with their own remote selves, full stop. No party, public or private, should have the unchecked ability to abridge an individual’s lines of communication over our generic global Internet. If the government ran the Internet the way it maintains the highways, we would see this in the United States as a First Amendment right, but because private parties offer Internet access, we do not view it that way, at least not doctrinally.[6]

Freedom of communication is no less important, however, simply because people get their access from private parties. Public accommodation doctrine developed in an age where physical travel was how people and ideas spread—and thus innkeepers were required to offer an available room to anyone ready to pay for it. Common carriage created a regime where private trains took all customers—and owed them the utmost duty of care to get them to their destinations unmolested.[8] These doctrines mattered precisely in those circumstances where the market, left to its own devices, could not achieve the same result—at least not for everyone.

The rights of diplomacy arose out of states’ mutual self-interest: Each sovereign appreciated the value of having protection for its own outposts and the links to and from them, and reciprocity provided the classic framework by which to curtail one’s own activities with respect to others’ embassies in exchange for the corresponding benefits on foreign ground. On the Internet, such reciprocity could fuel parallel rights of passage for data on peer-to-peer ad hoc mesh networks—that is, networks created by users linking their devices together wirelessly without the explicit involvement of a commercial network provider. For “regular” Internet networks, maintained by commercial providers, there is no such reciprocity on which to build net neutrality. ISPs might claim that they unambiguously give something up when they are limited in how they can shape services for their own customers, even as they might appreciate a level playing field when attempting to peer with other ISPs—something they do not enjoy today. But that is not exactly true. Much Internet service is a shared resource, even within the “last mile” to the home. My cable modem’s connection bandwidth is shared with that of others. So too with wireless connectivity. A subscriber creating traffic for the purpose of slowing down others’ connectivity is engaging in a form of denial-of-service attack, and is fair game for sanctions by an ISP. Why should not a reciprocal rule apply to ISPs who purposefully slow down connectivity in a discriminatory fashion?

We enjoy access to massive archives of our digital trail in the form of emails, chats, comments, and other bits of personal ephemera, all stored conveniently out in the cloud, ready to be called up or shared in a moment, from wherever we happen to be, on whatever device we choose. The services stowing that data owe a commitment of privacy defined by a specific policy—one that we can review before we commit. Yet if any of the cloud services we use restrict our ability to extract our data, it can become stuck—and we can become locked into those services. The solution there is for such services to offer data portability policies to complement their privacy policies before we begin to patronize them, to help preserve our freedom to choose services over the long term.[9] By dismissing the principle of net neutrality, however, we endanger that ability not just by one cloud service provider but across the board: ISPs can perform deep packet inspection to glean whatever they can about us as we correspond with different sites across the Internet, and our data can become stranded in places as the shifting sands of our ISPs’ access policies constrict access to places they disfavor. Just as international diplomacy depends on the principles of the inviolable embassy, la valise diplomatique, and mutual reciprocity to operate in the ultimate best interests of all involved, so does net neutrality depend on maintaining an online environment that preserves those aspects that made it such a valuable and central part of modern life in the first place.

A framing of Internet use that focuses on the persistent, undifferentiated right to get from here to there need not entail an absolutist position on net neutrality. Diplomatic pouches can be inspected or refused passage under exigent circumstances; innkeepers do not have to rent out rooms they do not have. The U.S. embassy in Beijing is in reality more Chinese territory than American. So, too, can viruses be rightfully detected and blocked by ISPs, and packet congestion dealt with, under the aegis of reasonable network management. But to reject net neutrality and privilege specialized ISP content-service bundles over the abilities of consumers to reach—prospectively and retroactively—the activities and data of their choice is to embrace a narrow and increasingly unrealistic view of the Internet, one that sees it as just another product with features to be optimized across clumps of customers. The Internet is that, but it is more: It is the paramount way we communicate with one another, and the means by which we establish our own digital selves. To allow anyone to deny us access to any one of those repositories would deny the ways in which the Internet has become so foundational to our very identities.”