How will we get to net neutrality? Lots of lawyers.
Despite what hundreds of bloggers say, there’s no simple switch you can flick to turn on net neutrality. The Internet is a large, complicated, and commercial space. And so far, the battle between the courts and government agencies prove there’s no simple place to write the rules.
The Internet, whether you like it or not, is a product. We live in a free-market society, so I can pay for faster access to anything. I can pay for a private jet to get somewhere faster. Is the Federal Aviation Administration (FAA) going to make a rule against that?
So, the default, in theory, is that somebody can pay for the fastest Internet. Any attempt to make rules or policies that enforce neutrality are going against the current.
That’s the first problem. The second problem is that the Internet is a technically complex place, with last-mile providers, backbone providers, cloud providers, and caching providers, so it’s not like there’s one central place to ‘control the bandwidth’ or ‘make rules about bandwidth.’
The third problem is the legal one — where and how do you put rules in place? Who has the authority. This is the central issue. The battle right now is at the FCC, but it hasn’t even yet been determined if the FCC has the authority to do it — in fact the courts have already found otherwise, which is why we are where we’re at now.
I found some interesting articles by lawyers on FindLaw which demonstrate this very issue.
Williams Peacock, a lawyer posting on FindLaw.com, points out that the definition of Net Neutrality itself has changed over time. First it meant the ISPs not having the right to slow down specific applications or traffic. Then, with the emergence of pay-for-prioritization deals, it became about whether a company could pay to speed up its traffic.
A watershed legal decision in 2010 sent us down this path. On April 6th, 2010, the U.S . Court of Appeals for the District of Columbia handed down a decision striking down the FCC’s move to stop Comcast from slowing down or interfering with traffic from Bit Torrent, a popular peer-to-peer download service that often contains pirated content.
That decision essentially thwarted the FCC’s past attempts to define neutrality. That led Netflix to make deals with ISPs, including Comcast, to ensure that its traffic could not get slowed — and to protect its customers.
Again: Netflix is paying for their right to deliver a better product. In a free-market society anybody can pay for faster access to anything. It’s very tricky to make rules that go against the default.
So that brings us to yesterday. The FCC is now essentially proposing a hack, or workaround to the fact that the courts did not accept their last rules. Peacock calls them “Not Net Neutrality” because they do not explicitly prohibit pay-for-prioritization. In short, the rules say you can’t slow something down, but you can be paid to speed it up. The question is: Isn’t that the same thing, since bandwidth is a zero sum game?
Yes, the FCC is a bunch of bureaucratic suits, and their new rules have been met with a swell of protest and criticism, painting the FCC as being in the pockets of the large broadband service providers. This is probably true. But is this really right to blame the FCC? After all, they were forced into this position by the courts. They just happen to have the football because the game developed in their front yard. So far we haven’t found another football field to play on other than the FCC’s.
Again, it comes back to the orginal Comcast decision in 2010 that forced the FCC into this position. Tanya Roth, another lawyer posting on Find Law, wrote about that case. This one decision was a pivotal time in the history of neutrality, as it stopped the momentum of the FCC moving in the direciton of implementing neutrality rules.
In the Comcast decisioin, the District Court found that the FCC lacks the authority to tell service providers they must provide equal treatment of bandwidth. So, ironically, all of the protestors should be blaming the District Court for the lack of net neutrality policy, instead of the FCC.
This legal development is important because it explains the latest move by the FCC to reclassify broadband as a regulated telecom service. This is more of a legal chess move — a hack — rather than a logical policy move, which leads us to the question of whether this is the right way to do things (probably not).
Let’s summarize: The original debate was about whether service providers could deliberately slow things down. That morphed into a debate about whether service providers could pay to speed things up. Which leads to the debate about whether paying to speed things up is the same as slowing others down.
And now what do we have? It’s largely a jurisdictional battle, with the the District Court having forced the FCC to make a less-regulated service more regulated, so that it can impose more rules on it.
In short, the battle for freedom on the Internet has become about making it less free, so that in theory we might gain more freedom. That doesn’t sound like a strategy that’s going to work out very well.