When it comes to Internet service, we all know that faster is better, and that when it fails, it’s like the lights going out. We now depend on the Internet for immediate information — just think how we all turn to it when an earthquake or local crime is rumored. The possibility that Internet service providers (ISP) could subtly block the reception of information by slowing download or streaming speeds is a concern that has resulted in the FCC’s first attempt at writing Open Internet rules. But the D.C. Circuit Court of Appeals recently invalidated these rules, which are a set of policies to enforce the principle of Net Neutrality — the concept that Internet providers may not prejudge the content we request from them.
This act was the closest we’d come to laws that would ensure that Internet providers delivered equal access to the Internet. The Open Internet rules, however, were also heavily criticized for being too weak to achieve Net Neutrality and also for being a potential threat to Internet innovation and openness. Some argued the rules were drafted to avoid offending powerful companies with conflicting interests. How was it that the FCC’s Open Internet rules both failed to achieve Net Neutrality and were struck down for threatening that which it was trying to achieve?
At its simplest, the Open Internet rules lost in court because the FCC had previously distinguished between information services (the Internet) and common carriers (telephone companies); the D.C. Court found that because the FCC had already decided that information and telephone services were different, it could not now say they were the same and regulate them with the same law — the Open Internet rules.
Some see the legal setback as a loss for the Open Internet and Net Neutrality, while others see it as correctly preventing the FCC from gaining unprecedented regulatory power. In my view, the Open Internet rules managed to fail in two ways: It both overstepped its regulatory bounds and failed to achieve strict enough Net Neutrality rules.
Net Neutrality is meant to prevent the scenario where your Internet provider is also your TV content provider and — due to the inherent conflict of an Internet provider giving you access to a competing content provider (like Netflix, for example) — decides to noticeably slow the speed at which Netflix movies arrive at your television. An Internet provider could even slow down your Netflix until it is nearly unusable and thus make you click back to your provider’s TV programming. This is a subtle form of censorship. It’s worth noting that nearly a third of Americans are forced to use a single cable company for Internet service because the cost of supplying the last-mile connections to residents’ homes precludes a healthy competition of choices.
If you think of the Internet as being like the public roads, if Walmart were able to restrict traffic on roads leading to its competitors, the conflict of interest is obvious between Walmart as a business and Walmart as a traffic director. The same is true of a content provider restricting Internet traffic by its additional role as your Internet provider.
Net Neutrality is about freedom for consumers and publishers, who can still curate content however they desire and charge however much they desire. Net Neutrality ensures that when we buy a communication line to the Internet, that line will not dictate the content we watch. The Internet is not just about entertainment — it is becoming our primary communication tool, and it gives us access to jobs and public functions. In fact, the Internet is so fundamental to human society that the U.N. now considers it a human right. It has been shown to increase social mobility and allow unprecedented access to free education. It allows anyone to self-publish, organize, and be heard — like protesters in the Middle East during the Arab Spring. The Internet is unique because it doesn’t fundamentally discriminate against either publishing or viewing content on the basis of socio-economic status. It is an open forum where people are free to view and publish the content they choose.
So why does anyone oppose Net Neutrality? Mostly, I believe, it is because Internet service providers wish to have the freedom to gain unfair economic advantage. However, there is one valid exception to Net Neutrality that has been used to argue against the idea: Sometimes it is valuable to prioritize Internet traffic for reasons of “quality of service” (QoS). We can easily tell when voice traffic is delayed, so it makes sense to prioritize voice traffic (aka phone calls) over loading a webpage or a file download. In terms of enforcing Net Neutrality, however, this identified problem is not a deal breaker since it is simple to make it an exception.
Net Neutrality is rather straightforward; it is about treating the Internet like a public utility to prevent middle-carriers from restricting service that’s already been paid for. This brings us to the FCC’s role in the Open Internet rules that recently failed. The FCC has plans to redraft the Open Internet Rules, but it remains to be seen what shape these new rules will take. So while the only rules to regulate Net Neutrality have died, it would be good to see some new policies actually accomplish those goals.
Patrick Baxter is a PhD student with the Computer Security Group at UCSB.