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Network neutrality—the idea that Internet service providers (ISPs) should treat all data that travels over their networks equally—is a principle that EFF strongly supports. However, the power to enforce equal treatment on the Internet can easily become the power to control the Internet in less beneficent ways. Some people have condemned last week’s court decision to reject the bulk of the Federal Communications Commission’s (FCC) Open Internet Order as a threat to Internet innovation and openness. Others hailed it as a victory against dangerous government regulation of the Internet. Paradoxically, there is a lot of truth to both of these claims.
Violations of network neutrality are a real and serious problem: in recent years we have seen dozens of ISPs in the U.S. and around the world interfere with and discriminate against traffic on their networks in ways that threaten the innovative fabric of the Internet.
At the same time, we’ve long doubted that the FCC had the authority to issue the Open Internet rules in the first place, and we worried that the rules would lead to the FCC gaining broad control over the Internet. The FCC in particular has a poor track record of regulating our communications services. We are not confident that Internet users can trust the FCC, or any government agency, with open-ended regulatory authority of the Internet.
Look at what happened with radio and television. Though it’s charged to regulate our media landscape in the best interest of the public, the FCC opened the doors to unforeseen levels of media consolidation. That consolidation has contributed to the gutting of newsrooms and a steep decline in diversity of viewpoints and local voices on the air, as independent broadcasters across the country shut down, unable to compete with big media monopolies. One of the best protections for the open Internet is probably more competition among ISPs, but the FCC’s history doesn’t leave us hopeful that it is the right entity to help create and defend a competitive Internet marketplace.
And the FCC sometimes makes rules that narrow our freedom to communicate and innovate, like the Broadcast Flag Rule—the bit of DRM that broadcasters wanted to use to prevent the home recording of television—which EFF fought so hard to defeat in 2007.
So while we are hesitant to task any government agency with the job of regulating the Internet, we aren’t thrilled about giving that power to the FCC.
The many faces of network discrimination
However this plays out, we think it’s important that the public understands what network discrimination actually looks like. The recent debate about network neutrality has involved a lot of speculation and “what-if” hypotheticals. This is strange because we have a clear, documented history of the kinds of non-neutral, discriminatory practices that ISPs have actually deployed in recent years. Here are a few ways ISPs have throttled or blocked content in the past. We stand firm in our opposition to this kind of behavior:
- Packet forgery: in 2007 Comcast was caught interfering with their customers’ use of BitTorrent and other peer-to-peer file sharing;
- Discriminatory traffic shaping that prioritizes some protocols over others: a Canadian ISPslowed down all encrypted file transfers for five years;
- Prohibitions on tethering: the FCC fined Verizon for charging consumers for using their phone as a mobile hotspot;
- Overreaching clauses in ISP terms of service, such as prohibitions on sharing your home Wi-Fi network;
- Hindering innovation with “fast lane” discrimination that allows wireless customers without data plans to access certain sites but not the whole Internet;
- Hijacking and interference with DNS, search engines, HTTP transmission, and other basic Internet functionality to inject ads and raise revenue from affiliate marketing schemes, from companies like Paxfire, FairEagle, and others.
Individually and collectively, these practices pose a dire threat to the engine of innovation that has allowed hackers, startup companies, and kids in their college dorm rooms to make the Internet that we know and love today.
How can we prevent these practices and ensure neutrality over our networks? The FCC tried, and while the agency was somewhat successful in putting the brakes on the kind of network discrimination ISPs would rather see, the FCC used poor legal reasoning to enact weak rules.
What was wrong with the FCC’s network neutrality approach
The Open Internet rules of 2010 that were rejected by the court last week were deeply flawed and confirmed our fears about heavy-handed Internet regulation. The FCC initially claimed that it had“ancillary” authority under the 1996 Telecommunications Act to enact the Open Internet rules. That means that although the FCC did not have explicit authority from Congress to issue network neutrality rules, especially after classifying Internet service as an “information service” and not a telephone-like “common carrier” in 2002, they still professed a broad authority to regulate the Internet.
That claim of ancillary jurisdiction, if accepted, would have given the FCC pretty much boundless clearance to regulate the Internet, and to claim other ancillary powers in the future. Even if you happen to like the FCC’s current goals, who’s to say we will still like whatever goals the agency has next year and the year after that?
We had serious issues with the initial Open Internet Order, as we explained in our comments to the FCC. For one, the Order allowed ISPs free rein to discriminate as long as it was part of “reasonable efforts to… address copyright infringement.” This broad language could lead to more bogus copyright policing from the ISPs. We’ve already seen companies use inaccurate filters to blocknon-infringing fair use content online, a practice we continue to fight.
The FCC’s rules also had troubling exceptions for law enforcement, permitting ISPs to engage in voluntary, non-neutral network management practices to fulfill any law enforcement requests. We opposed this exception when the rules were being considered, but the FCC did not adopt our recommendations. And by now we all know how overbroad law enforcement exceptions to gather user data can be. If you have any doubt, pick up a newspaper and read about how the U.S. government unconstitutionally collaborates with Internet companies for law enforcement purposes.
There are no easy solutions
In light of these threats it is tempting to reach for easy solutions. But handing the problem to a government agency with strong industry ties and poor mechanisms for public accountability to fix the very real problem of network neutrality is unsatisfying. There’s a real danger that we would just be creating more problems than we’d solve.
One alternative that would go a long way would be to foster a genuinely competitive market for Internet access. If subscribers and customers had adequate information about their options and could vote with their feet, ISPs would have strong incentives to treat all netowrk traffic fairly. The court agreed with us on this point:
“a broadband provider like Comcast would be unable to threaten Netflix that it would slow Netflix traffic if all Comcast subscribers would then immediately switch to a competing broadband provider.”
Another scenario would be for Congress to step in and pass network neutrality legislation that outlines what the ISPs are not allowed to do. But fighting giant mega-corporations like AT&T and Verizon (and their army of lobbyists) in Congress promises to be a tough battle.
Yet another option: empower subscribers to not just test their ISP but challenge it in court if they detect harmful non-neutral practices. That gives all of us the chance to be watchdogs of the public interest but it, too, is likely to face powerful ISP opposition.
These are not the only options. Internet users should be wary of any suggestion that there is an easy path to network neutrality. It’s a hard problem, and building solutions to resolve it is going to remain challenging. But here is one guiding principle: any effort to defend net neutrality should use the lightest touch possible, encourage a competitive marketplace, and focus on preventing discriminatory conduct by ISPs, rather than issuing broad mandatory obligations that are vulnerable to perverse consequences and likely to be outdated as soon as they take effect.
EFF is watching this issue closely, and we’ll continue to share our thoughts on how best to defend the free and open Internet on which we all depend.
It seems that while internet activists and advocates of the free flow of information have been focused on the dangerous and looming Trans-Pacific Partnership, the debate for Net Neutrality has been absent from recent memory. The TPP has the potential to completely upend life as we know it and does warrant a great bit of your attention. However, the persistent debate of Net Neutrality rules has now been brought back front and center.
On Tuesday the US Court of Appeals for the District of Columbia Circuit ruled against rules originally adopted by the Federal Communications Commission in 2010. The rules, known as Net Neutrality, were designed to protect the openness of the internet. The 2-1 decision means the FCC created rules do not apply to broadband services such as Comcast and Verizon, the two companies behind the lawsuit.
The D.C. Circuit decided that the FCC had classified broadband services differently than it does traditional telecommunications companies and could not hold broadband services to the same standard. The FCC used the concept of “common carriage” when developing the basis of the Net Neutrality rules. The concept hinges on the idea that common pathways (the internet, waterways, roads) should be open to all. A business can charge for services using such pathways but they cannot discriminate.
With the internet this means that before Tuesday companies could not discriminate traffic based on a tier system, or payment of a fee. The idea was that the internet infrastructure that provides all internet content should be open to anyone. The end of the rules means that large corporations with deep pocket books could pay broadband providers extra cash to ensure their sites and services stream in excellent quality while viewers of smaller sites could suffer from a lower quality internet experience.
It doesn’t take long to see how this could affect internet censorship. Smaller journalist outfits, or independent entrepreneurial ventures could be blocked from the internet by being unable to pay fees that Verizon, Time Warner or Comcast may eventually impose. There are also fears that the United States government’s close relationship to certain corporations could lead to quality experiences of some sites and the slow elimination of websites critical of the government and its policies.
How did we get here?
In 2005 the Supreme Court ruled that broadband services should not be classified in the same manner as telecom services. The idea being that broadband providers’ infrastructure is not considered a public right and not regulated under the concept of common carrier. Based on that decision the appeals court rejected the FCC position that broadband services fall under Net Neutrality rules.
The FCC put in place official rules for Net Neutrality after a failed attempt to fine Comcast based on Net Neutrality principles, but not official rules, that were in place in 2009. Comcast had slowed traffic from the torrent downloading service BitTorrent in order to manage traffic and limit downloads. In April 2010 the same D.C. court ruled that the FCC had no authority to enforce regulations on Internet providers. The case dealt with what many fear will happen in the coming age of tiered internet services.
Soon after, the FCC created official Net Neutrality rules. It was these new rules that Tuesday’s decision concluded, once again, that the FCC does not have the authority to regulate broadband services under. So what are the rules of Net Neutrality and how do they affect you?
The first of three rules required broadband companies to remain open and transparent to customers about how they handle traffic on their systems.
The second rule is designed to keep broadband services from blocking legal content on their networks.
The third rule, and the one which does not apply to broadband services any longer, prevents “unreasonable” discrimination against traffic.
It is important to note that the court did reject a claim by Verizon that Congress did not give the FCC jurisdiction over internet access at all. The court referenced section 706 of the Telecommunications Act of 1996 as giving the FCC authority over the internet. This means that the Commission is free to set rules for standard internet traffic but at this point broadband services are not under their jurisdiction. This goes for all broadband providers except Comcast. In the company’s 2011 merger with NBC they agreed to follow the FCC’s Open Internet Rules until 2018.
The End of the Internet or an Opportunity for Creation?
So although this battle is far from over we could begin to see the internet offered to customers at various prices for differing quality, speed, and content. The usual knee jerk reaction to this type of action or inaction by the government is to call for more regulation. Corporations continue to have a growing influence in our lives; from the food we eat, to the clothes we buy and the way we use the internet. It is frightening to think that the free and open internet we have grown to love could be stripped away. But, perhaps, this competition between the corporatist enslavement of our freedoms should be seen for what it truly is: a competition between free, intelligent, creative people and monopolistic, mechanical, corporate governance.
Instead of expecting the United States government of 2014 to hear our cries and pull back the tyranny, we should see this as an opportunity to create new ways of using the infrastructure of the internet and broadband services. Sure, the mainstream World Wide Web may be completely monitored and eventually censored, dull, and irrelevant, but that does not mean innovation will cease. With the open source technological revolution growing daily it is likely that some genius out there has already created the answer to our problems.
Ideas like alternative DNS server projects such as the Open Nic project, mesh networks, the Darknet, and more will stretch the boundaries of what the internet can be. These ideas will be the ones that eliminate the effectiveness of any government regulation anyways. They will also render any silly corporate takeover of communications largely pointless.
Now of course, those who choose to remain in the corporate mainstream culture will be left with the dry, carbon copy versions of music, clothes, technology and yes, the internet. But once the clamping down on individual expression and creation reaches a breaking point the population will seek a better alternative. With the growth of peer-to-peer, open source technology it is only a matter of time before the internet expands into a number of different, competing webs of information.
So spread the word about the looming dangers of censorship and internet favoritism, but don’t forget to remind others that information longs to be free. It is inevitable that governments and their corporate partners will work together to limit freedoms. It is also inevitable that the people will tire of such arrangements, create alternatives, and find ways to be even more free. If you want to keep the free and open internet – fight for it. Create it. Build it.
Derrick Broze is an investigative journalist, community activist, gardener and promoter from Houston, Texas. He is the co-founder of The Houston Free Thinkers, and co-host of Free Thinker Radio. Broze also hosts and produces a weekly podcast under the name the Conscious Resistance Live. His writing can be found on TheConsciousResistance.com and at ActivistPost.com.