On September 30, 2018 California Senate Bill 822 was signed into law. The law effectively established statewide net neutrality laws modeled on federal regulations which were overturned by the FCC’s Restoring Internet Freedom Order in December of 2017. This is yet another step in an ongoing battle to establish laws that would prevent Internet Service Providers (ISPs) from discriminating against data from specific sources in an online environment. Net neutrality continues to be an evolving concept, and despite broad support from the public, the United States government has had difficulty establishing long-term solutions within the current legal framework.
The origin of the term network neutrality is widely attributed to Tim Wu’s 2003 article Network Neutrality, Broadband Discrimination. In his prescient opening line, Wu (2003) states that: Communications regulators over the next decade will spend increasing time on conflicts between the private interests of broadband providers and the public’s interest in a competitive innovate environment centered on the internet (p. 141). In the United States, these conflicts have resulted in various regulatory frameworks and court challenges, and the debate is constantly changing. This discussion has many aspects (technological, economic, intellectual freedom, political etc.), and the future of net neutrality is still very much undecided.
The definitions of net neutrality vary widely. Wu (2003) had originally focused mostly on internet architecture and application restrictions, rather than throttling or bandwidth prioritization. However, network neutrality has mostly come to focus on regulating discrimination of content providers, end users or services by internet service providers (ISPs) (De Diego Martin, 2016, p. 5). Much of the recent debate has focused on a definition of net neutrality that specifically prohibits ISPs from slowing down, speeding up, or blocking internet traffic based on where it is coming from, where it is going, or who owns it (White, 2014, p. 152).
Net neutrality focuses on the interactions between three groups, the operators (ISPs), content and application providers (often internet companies such as Google, Amazon, Apple, etc.), and internet users. One of the main concerns in regards to net neutrality is the concentrated power of the ISPs. There are a very limited number of ISPs available, and most users have very limited, if any, choices for broadband internet service providers (Guo, 2017, p. 131). ISPs operate in a near-monopolistic state and arguably represent a private power that cannot be checked by market competition or consumer choice (Rahman, 2018, p. 1651-1652). This concentrated private control over critical infrastructure is a legitimate concern and opens up many opportunities for exploitative practices (Rahman, 2018, p. 1650). Net neutrality fears are in nt ungrounded, as cases of ISPs using their power to throttle or favor specific services have already occurred, such as the case of Comcast asking Netflix to pay for faster service (Gustin, 2014), or its intentional throttling of BitTorrent (Kravets, 2008).
The public is seen to widely support net neutrality as a concept. A recent poll showed that 83 % of Americans opposed repealing net neutrality regulations, largely regardless of political party (University of Maryland Program for Public Consultation, 2017). However, net neutrality does have its detractors, who argue that these regulations take money away from ISPs who would reinvest these funds to improve overall bandwidth and access. ISPs also argue that a so called dumb pipe system in which all data is treated equally will mean they are completely left out of decision making processes and lose their powers to shape internet progress (De Diego Martin, 2016).
Economic arguments are an important part of the debate. The Internet Association estimates that the internet was responsible for 6 % of U.S. GDP in 2014 (Siwek, 2015). The capital involved is extremely large and battles between ISPs and content providers have been ongoing for years. Network usage has been steadily increasing for years, but fees for service have often not risen as rapidly, making additional income from fees on content providers appealing to ISPs (White, 2014, 152). Net neutrality laws prevent ISPs from maximizing their profits and ISPs have fought hard through lobbying and legal battles to prevent any type of regulation.
The FCC largely cited neoliberal ideas of broadband access as a self-regulating market that could effectively police itself when removing the most recent net neutrality regulations (Berghel, 2017). The near-monopolistic nature of ISPs makes this less highly unlikely. Even if multiple providers are available in an area, individuals are often locked in by contracts that make simply switching between ISPs difficult. Competition is largely unlikely to increase, as the infrastructure and capital investment in starting a broadband company is prohibitively high. Additionally, research has shown that it is largely economically advantageous for ISPs to discriminate against content providers, even as competition increases (Guo, 2017). It would be naive to think that these corporations would not take actions that increased their own profits, and would willingly self-police their behavior if given free reign. Additionally, while ISPs argue that net neutrality inhibit innovation, the opposite is largely true. By not discriminating against content providers, net neutrality largely operates as an anti-monopoly tool itself by making sure that all content providers are treated equally. If content providers were forced to pay ISPs for bandwidth, it would ensure that only the large, financially dominate companies would have the capital to do so effectively stifling market competition and entrepreneurship (Rahman, 2018, 1656).
Of course, the issue is rarely as simple as opponents or proponents make it out to be. The idea of an early platonic internet that was completely neural is largely a myth, and the end-to-end principles used to frame net neutrality are largely obsolete in regards to modern internet architecture (Pisantry, 2016, 131). Some forms of traffic management will always be necessary for optimizing networks, maintaining security, and managing congestion (Belli, 2016, 16). It’s important when discussing regulations that differentiation is made between necessary and unnecessary traffic management based on what is reasonable. If nothing else, as Wu (2003, 156) has pointed out, regulations can serve an informational/educational function as a gentle reminder for broadband providers to air on the side of their better natures and focus on the public good.
Many discussions on net neutrality focus on technical and economic aspects; however the issue is also crucial to intellectual freedom and individual rights. The American Library Association (2018) succinctly stated the ties between net neutrality and intellectual freedom in their affirmation of net neutrality as an intellectual freedom issue. In part they state that:
Net Neutrality guarantees the right to distribute and receive ideas without limitation or discrimination via the internet. Without the protection of Net Neutrality, tiered access limits diversity and blocks ideas and opinions. Additionally, it creates an internet in which only the companies that can afford to pay more for prioritized access can get their content through to consumers. Allowing ISPs to determine which speech receives priority access and which speech can be delayed, or even blocked, based on commercial and financial interests impairs intellectual freedom. This leads inevitably to censorship of voices without economic or political power.
Here we see that one of the major issues with a non-neutral network is that we see another way for capital to buy a louder voice.
This speaks to Gramsci’s ideas of hegemony and the role capital plays in intellectual freedom as discussed by Raber (2013). In a system in which payments must be made to have content favored, capital will be a strong driver of speech. Even Verizon has conceded that net neutrality is a free speech issue. In the 2014 case that overturned the FCC’s 2010 Open Internet Order, Verizon argued that net neutrality infringed on their free speech rights and that regulating bandwidth was a form of speech (Verizon v Federal Communications Commission, 2014). This acknowledgement that broadband data is speech only underlies the importance of having regulations that prevent its suppression. If more money buys better data transmission, we see yet another system in which the voices of the marginalized are suppressed. We can think of net neutrality acts as nondiscrimination laws that allows marginalized and nonprofit voices to be given equal weight in the online environment (Cox, 2018, 14). As Buchannan (2013) discusses, freedom of expression and access are both critical issues when discussing intellectual freedom in an online environment, and ISPs have control over both, making regulations all the more important.
From the early origins of net neutrality concepts it was clear that self-regulation by internet providers was not a viable method to maintain net neutrality (Wu, 2003). There are many questions about how to best regulate net neutrality. Who should be responsible for regulating? How much regulation is necessary? What is the government’s statutory authority for regulation? These questions have been heavily debated in recent years, and the government has still yet to come with agreed upon answers to these questions.
The FCC’s attempts to regulate ISPs rely heavily on Progressive Area ideas of public utilities that have been adapted to the uniqueness of modern telecommunications (Rahman, 2018, 1648). As early as the expansion of railroads, there has been worry about how best to control private control of infrastructural goods. Early regulations of railroads began at the state level, developing a patchwork of regulations, but it was clear that their interstate nature would require federal intervention. As monopolis became a greater concern, the federal government began to develop antitrust laws, corporate governance, and the public utility model as forms of controlling concentrated private power. As new forms of communications such as telegraph and telephone networks developed, the government began to use these established tools to regulate these services through common carriage requirements and limits on vertical integration (Rahman, 2018).
The Communications Act of 1934 was the first major legislation regulating telecommunications networks. The next significant legislation would not come until the Telecommunications Act of 1996. While, the Communications Act of 1934 essentially let AT&T operate as a regulated monopoly, the Telecommunications Act of 1996 tried to enhance both competition and interconnectivity. It imposed common carrier requirements for telecommunication networks that prohibited discrimination against networks and required that all carriers have a physical connection to each other (Rahman, 2018, 1647-1649).
The overall authority of internet regulation by the federal government lies in their authority to regulate interstate commerce. More specifically, the FCC derives its regulatory power from the Commerce Act of 1934, and the Telecommunications Act of 1996 (Hanna, 2018, 80). The Telecommunications Act of 1996 made a distinction between telecommunication lines, which are classified as a Title II service, and internet access provided by these lines, which were classified as a Title I information service. As broadband service came to prominence it was also classified under the information service Title I designation. In the 1990s, the internet was seen more as a luxury good than a vital communications service and therefore was not classified under the stricter Title II classifications that would hold it to common carrier restrictions (Rahman, 2018, 1651).
The 2011 FCC Open Internet Order attempted to establish net neutrality regulations outside of the Title II common carrier requirements, but the order was struck down in Verizon v. FCC (2014). In this case, the D.C. Circuit Court determined that the FCC did not have the authority to establish anti-discrimination requirements since broadband was not covered under common carrier requirements (Verizon v Federal Department of Communications, 2014). In response the 2015 Open Internet Order formally reclassified broadband internet from an information service to a telecommunications service, which falls under Title II common carrier requirements. The changes were upheld in United States Telecom Association v Federal Communications Commision and United States of America (2016). In this case, the D.C. Circuit Court determined that broadband service does in fact satisfy the statutory definition of a telecommunications service (US Telecom Ass’n v FCC 2016). These changes were reversed when new FCC leadership under the Trump Administration passed the Restoring Internet Freedom Order, which once again changed broadband service from a Title II to Title I carrier in December of 2017 (Restoring Internet Freedom Order, 2017).
Within hours of California’s passage of their net neutrality law the Justice Department filed suit against the state (Finley 2018). The Justice Department is attemtping to make the case that California has no authority to regulate ISPs. At the heart of this are two primary legal issues. First, the interstate nature of the internet means only the federal government should be able to regulate it (Finley, 2008). Second, the FCC’s Restoring Internet Freedom Order included a specific clause which prevented any state or local governments from imposing rules that the FCC specifically repealed (Restoring Internet Freedom Order, 2017). This presents an interesting case, because when repealing the Open Internet Order the FCC’s primary argument was that they did not have the proper authority to impose net neutrality regulations, but also claiming that they had to sole authority to ban anyone else from imposing net neutrality regulations (Romm, 2018). This effectively means that according to the FCC, there is no agency who currently has the authority to regulate data discrimination.
While the California legislation may be a positive good for the citizens of California and net neutrality in general, it is highly unlikely the courts will find that California had the authority to pass such legislation. Regardless of what the FCC’s authority to prevent others from establishing net neutrality regulations is, it is a near certainty that the interstate nature of the internet will mean that California’s regulations do not stand. The internet should clearly be regulated as interstate commerce and no legal cases in United States history have ignored the Commerce Clause and favored states over the federal government when interstate commerce is involved (Rash, 2018). Additionally, while good-intentioned, a state-by-state patchwork of net neutrality regulations is far from ideal for anyone involved.
In the end, all that may come of California’s attempts at establishing state level net neutrality laws is keeping the debate alive in the courts and in the public eye. The past decade has shown us a framework for how net neutrality laws could function reasonably to protect intellectual freedom in an online environment through modified common carrier regulations. While we are currently operating in a regulatorily non-neutral environment the California case has shown that the debate is far from over.
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