One of the nice things about the net neutrality debate is that just when you think you’ve figured out all of the positions, everything changes. In this case, a ruling by the U.S. Court of Appeals that the Federal Communications Commission did not have the authority to regulate net neutrality has thrown the usual players into something of a tizzy.
Since that time, the FCC has announced that if it can’t regulate broadband carriers the way it originally wanted to, then it will reclassify them into an area where it can regulate them.
This plan by the FCC to change the status of Internet carriers to that of phone companies, and to use rules adopted to control those companies decades ago, is certain to result in two things: first, confusion, since the Title 2 rules that the FCC wants to use don’t readily apply to the Internet, and second to make a lot of lawyers a lot richer than they already are. If there is one thing that’s certain in this current effort by the FCC to find a way to assert control over the internet, it’s that there will be a lot of legal action.
Another thing that’s certain is that a lot of pressure and activist groups are going to try to find a way to use this turn of events to pressure Congress into enacting some kind of legislation controlling the FCC and the Internet. While the chances of legislation actually happening in this area are remote, that hasn’t stopped the various public interest groups from pushing their cases as if the event were just around the corner.
In mid-July, for example, I received a press release from a group called Arts+Labs, which is a coalition of technology and creative organizations. The members include NBC Universal, Microsoft and a group of songwriters, among others. Its take on net neutrality is that ISPs should use their ability to manage network traffic to protect the interests of content providers from piracy.
The group is afraid that the principle of nondiscrimination is such that ISPs wouldn’t be allowed to block traffic containing illegal transfers of protected work. Instead, Arts+Labs wants ISPs to be able to prevent the illegal transfer of protected work. Basically, the group wants to make sure that whatever rules are adopted allow this.
Meanwhile, other groups including Free Press and Public Knowledge want to have the Internet completely free of any favoritism toward any service provider. They say that it should be up to the consumer whether to pay for enhanced access or not. They’re against any deals that give better access to one company over another, and against any preference by an ISP for their own customers to their own content.
Network Neutrality Legislation to Remain in Limbo
The progress of this debate has taken what was already a tangled mess of conflicting interests and added a new element, the issue of preventing the transfer of protected content. The problem with this new element is that it’s not really part of net neutrality at all. While the content owners have a legitimate concern, what they’re asking for is that the traffic management that ISPs are allowed to perform by the court decision be expanded to include monitoring the nature of the traffic to determine whether it contains illegally obtained copyrighted material.
In other words, if I were to send an MP3 file of music to my daughter in a transfer that violates a copyright, the ISP should be required to block it. But if I were to send a copy of me singing a song to my daughter, they could let that pass. Perhaps I’m missing something, but I can’t figure out how this is part of net neutrality. But even supposing it is, how can an ISP legally inspect the contents of an e-mail without violating wiretapping laws? And how, once they determine that I’m sending out music, can they determine whether it’s violating a copyright?
While I sympathize with the need to protect intellectual property, I have trouble seeing how this is a solution. Instead, this seems to be an attempt to hang a hook on net neutrality and use it as a vehicle to get their view of content protection through.
It’s perhaps significant to note that AT&T is a major player in this organization. AT&T is also the company that has already stated its opposition to net neutrality. The fact that the court decision that’s leading to this new activity benefited Comcast, which is trying to merge with NBC Universal, which is a member of this group, may also be significant. The primary membership of the Arts+Labs group does not seem to have an interest in an open Internet so much as it seems to have an interest in making sure it protects its own commercial interests.
The one bright note is that there’s little chance that the FCC will be able to assert control over net neutrality or the Internet in general in the immediate future. It’s already been slapped down by the court, and an attempt to defy the court will certainly result in being slapped even harder. Attempts to reclassify the Internet will also certainly result in years or even decades in court. The only hope the Commission has is that Congress will pass legislation giving it the authority to regulate network neutrality, which is something the court said was missing in the first place.
But such legislation won’t happen any time soon. It’s impossible this year with Congress about to go into election year recess. Next year, it’s anybody’s guess, but you can assume that the makeup of Congress will change, and legislation of any type will be highly uncertain. So in the meantime, what we have are distractions, and that doesn’t help anyone.