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The FCC's New Open Internet Order Faces the Realities of Implementation
Posted On June 16, 2015
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Some businesses seem willing to accept—or rather wheel and deal on the issue of—Net Neutrality. AT&T will reportedly play by the FCC’s rules if it is able to complete its purchase of DirecTV, according to The Washington Post, which notes, “If AT&T ultimately followed the newer rules for Internet providers, it would be committing to at least three things. It would honor the FCC’s ban on the slowing of Web sites, as well as a ban on blocking Web sites. It would also comply with a ban against taking payments from Web site operators to speed up their content, a practice known as ‘paid prioritization.’”

Keeping the Global Internet Free?

Net Neutrality is being challenged across the globe. According to TechCrunch, “Hidden under the guise of enabling the Indian population with faster and more reliable services, the major players in telecoms, such as Airtel and Reliance, have adopted new policies that could undermine the basic building blocks of internet access in India.” The Register from the U.K. recently reported that “negotiations on the so-called Telco Package hit a wall on Tuesday night [June 2] when national representatives from the Council and those from the European Parliament failed to compromise on net neutrality or roaming charges. The law has been so mangled by various revisions that these two elements are all that’s really left of a raft of legislative proposals. With so many aspects chipped away, the Commission now plans to launch a separate policy initiative in 2016.”

In 2011, a United Nations report asserted that internet access is a human right: “The Special Rapporteur underscores the unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole.” A 2010 BBC survey of more than 27,000 adults in 26 countries found that four in five people around the world believe that access to the internet is a fundamental right.

These reports and others stress the need for all cellular, cable, and internet connections to treat all websites and services the same. Also, “it costs a lot to build a big high-speed broadband service, so there aren’t very many of them,” the ACLU warns. “They also tend to be big phone and cable companies because they already have the data ‘pipes’ in place. Most Americans don’t have more than a handful of legitimate high-speed broadband options at home (the vast majority have three or fewer). That means two things. One, customers can’t switch if … big broadband providers starts messing around with their service. Two, big content providers like Netflix have to send their data through these ‘last-mile’ gatekeepers. Right now, market competition just isn’t enough to stop them from blocking services or charging more for a fast lane.”

Progress—But Still a Cautious Future

Librarians have been lauded for their involvement in open access (OA) and other First Amendment causes, and vigilance is certainly required here, according to Slate. Planning in advance is always the best defense, and we have seen cases of abuse over the internet in the past. In 2007, Pearl Jam’s concert vocals were censored by AT&T for the band’s criticism of then President Bush. Also in 2007, Comcast interfered with users’ file-sharing attempts on BitTorrent and other peer-to-peer networks, a practice that was later ruled a violation by the FCC. Other examples exist, and although they have been sparse, the ACLU notes that “without enforceable network neutrality rules in place, [acceptance of this kind of behavior] could quickly happen. And the consistency of these abuses tells us all we need to know about what will happen if companies are permitted to exploit their power over our internet connections.”

In February 2014, FCC chairman Tom Wheeler released a statement of intent following the Verizon v. FCC decision, in which he wrote, “The FCC must stand strongly behind its responsibility to oversee the public interest standard and ensure that the Internet remains open and fair. The Internet is and must remain the greatest engine of free expression, innovation, economic growth, and opportunity the world has ever known. We must preserve and promote the Internet.” Three months later, in May 2014, Wheeler released a plan that would have allowed ISP companies such as AT&T, Comcast, and Verizon to discriminate online and create pay-to-play “fast lanes.” Thanks to the huge public and political outcry, Wheeler shelved this proposal, and on Feb. 4, 2015, he announced that he would base new Net Neutrality rules on Title II of the Communications Act, giving internet users the strongest protections possible within regulatory limits. The FCC approved Wheeler’s proposal on Feb. 26, 2015, signaling a major victory in protection of the open internet.

ISPs are facing more issues related to political realities in addition to the economic/business decisions of profit and shareholder value. Yochai Benkler wrote in The Penguin and the Leviathan: How Cooperation Triumphs Over Self-Interest (Crown Business, 2011) that the post-9/11 USA PATRIOT Act provisions on surveillance transformed ISPs from gateways into gatekeepers and “chokepoints of control.” In her book The Global War for Internet Governance (Yale University Press, 2014), Laura DeNardis notes that the internet’s control is based on a network of policy organizations, which are all in the U.S. and yet affect the internet on a global level. Beyond this, there is a layer of “multiple stakeholders—media industries, Internet industries, private citizens, traditional governance structures, Internet registries, engineers from standards-setting institutions, and cybersecurity experts.”

After this formal level of technology and governance lies a second level of “intermediaries [including] financial services companies that facilitate online monetary transactions; web hosting companies that house other entities’ content on their servers; search engines; registrars that assign domain names to Internet users; registries that perform domain name resolution processes; entities that run Internet exchange points connecting networks; and the institutions that operate the Internet’s routing and addressing infrastructure.”

The internet began as a way for scientists to better communicate among themselves to support innovation and discovery, but in the past 25 years, things have changed immeasurably. As DeNardis writes, “The rapid pace of innovation and social dependence on the Internet’s architecture has not afforded this luxury of a carefully planned global governance framework. Multistakeholder control has occurred nevertheless, establishing policies that determine how information is exchanged. Who is doing the governing and what are they deciding? The constellation of actors cumulatively coordinating or ordering various aspects of the Internet’s architecture has developed over a long period of time. Internet governance structures were originally based on familiarity, trust, and expertise and on ‘rough consensus and running code.’ Things have changed.”

Had anyone been able to forecast the importance and dominance of the internet back then, we’d most likely be in a far better place today. Issues of governance, cybersecurity, and free speech represent “new spaces where political and economic power is unfolding in the 21st century,” according to DeNardis. The stakes are high, and we have no road map yet, but we all have an investment in internet governance—knowing that it will, indeed, determine the future of internet freedom.

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Nancy K. Herther is a research consultant and writer who recently retired from a 30-year career in academic libraries.

Email Nancy K. Herther

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