An advocate for net neutrality laments the end of FCC support for the principle of Internet data equality.
A recent New Yorker article by Columbia Law Professor Tim Wu has pointed to an official disavowal of legal support for the Federal Communications Commission’s (FCC) position on Internet neutrality. In the aftermath of a new court ruling, the Commission can no longer enforce this once seemingly unimpeachable tenet of the free Internet.
Referred to as network or net neutrality, the principle is based on preventing any sort of discrimination or censorship of data exchanged on the world wide web by deeming all information and content that passes through cyberspace as fundamentally equal. In the article, Wu further explains the idea of net neutrality by observing that
It offers a basic guarantee: that content providers on a network … can reach their users without worrying about being blocked, harassed, or forced to pay a toll by the carrier. (“Closing Time for the Open Internet.”)
In the past, Internet experts debated whether or not net neutrality should be protected by law. And, for much of the relatively short history of the Internet the principle was taken as a given. But, it has recently come under assault in the United States.
According to Wu, in 2010 then FCC chairman Julius Genachowski took numerous missteps that would ultimately condemn net neutrality to the dustbin of history. Then, in April of 2011, the New York Times reported an effort by the US Congress to overturn the FCC’s right to enforce the Open Internet Order, with its stated purpose of “preserving the free and open Internet.” House Democrats and Republicans debated the issue, with each side
accus[sing] the other of adopting the position of totalitarian regimes in Iran and China by favoring limitations on Internet sites that people can view. (“House Votes Against Net Neutrality.”)
In the end, the House vote to abolish the Open Internet Order passed, resulting in the drafting of House Joint Resolution 37. But, without the support of either the Senate or President Obama, it was never signed into law. The Order would thus remain the de facto standard. That is, until January of this year.
In his survey, Tim Wu then looks to Tom Wheeler, the new chairman of the FCC, to address the oversights of his predecessor. According to Wu,
Wheeler needs only to reaffirm that, for Internet firms that want to send information to customers, broadband is a “telecommunications service,” meaning that the F.C.C. has the authority to regulate it.
But, so far, Wheeler has not effectively done this. And, in a ruling of 14 January 2014, the FCC adopted a “faulty legal strategy,” according to Wu, as it argued before the US District Court of Appeals in Washington, D.C. The result: the Court struck down any further legal enforcement of the net neutrality principle.
Now, with net neutrality no longer being enforced by the FCC, commentators such as Wu and others say that Internet service providers are free to cut deals with private firms that allow them preferential treatment, and that they might even choose to slow or block access to companies that have not signed such deals.
In order to combat this, Wu maintains that the FCC must once again be allowed to enforce the principle. Otherwise, Wu suggests, established private interests such as Google or Facebook, who have benefited from the free nature of the Internet in the past, could choose to turn around and use their market share to protect their own interests and establish barriers to future competition. The professor also singles out telecommunications and cable firms such as AT&T, Verizon, and Comcast, which will now be capable of dictating what content passes along their networks, and perhaps of blocking or slowing access to companies unwilling or unable to pay premium fees for the right to do so.
Further elaboration of such likelihoods appears in a recent Denver Post article on the ruling. Speaking on behalf of net neutrality in the article, Danny Katz, director of the Colorado Public Interest Research Group, explains,
The ruling allows the cable and telecommunications gatekeepers to block any website or app they want and to give preference for 'high-speed lanes' to firms that they own or to firms willing to pay more. (“Net Neutrality: How It Might Affect Consumers, Startups and Level 3.”)
But, not everyone shares this opinion. Jim Harper, director for information policy at the Cato Institute (a libertarian think tank based in Washington D.C.), disagrees. According to Harper, who supports the presumably greater efficiency of the private sector over government regulation,
Companies that experiment with network management, pricing, internal subsidy and so on can find the configurations that serve widely varying consumers and their differing Internet needs the best.
Whether or not the existing telecommunications companies and other established firms that control large swaths of the Internet will continue to “play nice” with start-up competitors and consumers remains to be seen. But, as Wu and others argue, in the absence of the Open Internet Order or some other legally-binding support for net neutrality, this prospect might be unlikely.