Why the FCC Can’t Actually Save Net Neutrality

April Glaser
EFF

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[1], 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 block non-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.