All Are Equal but Some Are More Equal Than Others: The Net Neutrality Legislation in the U.S.

tl;dr: Network neutrality is trying to make its comeback a year after it was repealed. Should it?

Network neutrality was pronounced dead on June 11, 2018 when the FCC repeal from Dec. 14, 2017 came into effect. In April 2019, talks of reviving net neutrality are open again. Given the history of the legislation and violations made by service providers, the answer to the question whether net neutrality rules are necessary might be evident yet it remains largely dependent on political decision-making.

Network ‘net’ neutrality is the notion that Internet Service Providers (ISPs) should treat all data traffic, including content and applications, indiscriminately.

The term was coined in 2002 in an essay by lawyer and professor at Columbia Law School Tim Wu. Regulation of broadband, Wu argued in his proposal, was necessitated by the growth of broadband and providers’ tendency to limit consumers’ choice by restricting their broadband networks.

His anti-discrimination principle aimed at striking a balance between preventing broadband operators from controlling users’ choices on the Internet while also allowing them to some extent to control their networks in order to ensure maximum efficiency.

The history of network neutrality as we know it can be traced back to 1999 when it was introduced as merger conditions imposed on major Internet Access Providers (IAPs). The roots of network neutrality can be traced even further, to Title II of the 1934 Communications Act, based on which net neutrality legislation introduced in 2015 classified broadband internet services as public utilities akin to electricity and telephone connectivity.

In 2004, Michael Powell, then Chairman of the FCC, encouraged ISPs to ensure users’ freedoms to access content, run applications, attach devices, and obtain service plan information. The following year, the FCC seized the opportunity to enforce those principles by imposing a fine on and stopping Madison River, a North Carolina Digital Subscriber Line (DSL) service provider, from discriminating against its customers’ use of a voice-over-IP service offered by Vonage.

However, FCC’s action against Madison River did not stop other providers from violating the network neutrality principles. In 2007, an investigation conducted by the Associated Press revealed that telecommunications company Comcast interfered with users’ peer-to-peer file sharing connectivity. Similarly to Wu’s arguments outlined in his proposal of network neutrality, comments on Comcast’s actions underlined both the rights of the company to regulate traffic and the harm that it did to customers.

Yet no formal legislation on net neutrality had been passed and companies such as Comcast were sanctioned on an ad hoc basis. It wasn’t until 2010, marked by the approval of the Open Internet Order, that network neutrality became formal legislation subject to criticism for its interference with businesses and to support from internet activists, civil liberties groups, and consumers.

More particularly, by the 2015 Open Internet Order ISPs were barred from blocking users’ access to lawful content, apps, and services, throttling lawful Internet traffic, and prioritizing, or allowing quicker and easier access to, specific content and apps over others.

However, basing their argument on the link between the 2015 Order and the 1934 Communications Act, the FCC repealed the network neutrality rules in December 2017. Furthermore, some have argued that the net neutrality legislation is only new and the Internet functioned effectively prior to the introduction of those principles.

The consequent implementation of the Restoring Internet Freedom Order on June 11, 2018, gave back to providers the freedom to throttle traffic and control the flow of content but promised transparency and disclosure of such activities to consumers. In late June 2018, service provider Verizon was revealed to be throttling the traffic of the fire department of Santa Clara, CA, during a wildfire resulting in the submission of a brief calling for the reinstatement of the net neutrality rules. What is more, Internet providers are investing less than what supporters of the repeal predicted.

The rules continues to split observers into two camps arguing for and against the repealing of net neutrality. Similarly, Democrats and Republicans, respectively for and against the reinstatement of the rules, have turned the legislation into a partisan matter which has hindered the progress on the talks of its revival.

Yet that could potentially lead to bipartisan legislation as some Republicans have voted for the restoration of net neutrality rules despite their party has historically opposed the legislation. On April 10, 2019, the House of Representatives passed the bill titled Save the Internet Act which aims to restore net neutrality. However, the final approval rests with President Trump and is preceded by the review of the Republican-controlled Senate.

Given the nature of the Internet as a fluid good that is open to anyone, one can view the controversy around net neutrality legislation as a case study in consequentialism ethics. Consequentalist approaches weigh the pros and cons related to a particular situation and promotes decisions which garner the most pros as the ethical action. A form of such an ethical approach is utilitarianism as developed by Jeremy Bentham and John Stuart Mill (Ess 2014).

Utilitarianism holds that individuals and societies should pursue actions and activities which ensure and promote the common good. Furthermore, utilitarians argue, it is ethical to sacrifice one person to ensure the well-being of the group (Patterson & Wilkins 2014). In the context of the net neutrality stalemate, this could translate to the sacrifice of ISPs’ power in favor of consumers’ rights and needs.

Indeed, consequentialism has some limitations. Firstly, pros and cons are not always easy to calculate as some matters cannot be presented as purely quantitative. Secondly, consequentialists face the dilemma between short- and long-term goals as priorities. Thirdly, more often than not, it is difficult to decide whom to favor as a beneficiary when making a decision (Ess 2014).

The need for net neutrality rules is not an evidently quantitative issue. However, the first limitation of consequentialism as related to the net neutrality legislation can be overcome through an analysis of the past behavior of ISPs. As history shows, ISPs have been quick to leverage their power in periods of deregulation. It is precisely providers’ actions that prove the necessity for governance and regulation.

The question of how far into the future regulators should look when taking a decision for or against net neutrality is indeed problematic but does not necessarily have to be made. In this context, the notion of law as an evolving instrument is made evident by the history of the legislation on net neutrality which can be traced back to the 1930s. Therefore, a newly established legislation on the matter should only exist for as long as it meets the needs of the current infrastructure and its users.

Lastly, the group that can deservedly benefit from decisions on net neutrality should be Internet users. In the words of the founder of the world wide web, Tim Berners-Lee, by repealing the net neutrality rules in December 2017, the FCC essentially made a step back when they allowed “concentrated market players to pick winners and losers online. Their talk is all about getting more people connected, but what is the point if your ISP only lets you watch the movies they choose, just like the old days of cable?”

In brief, by ruling against net neutrality, regulatory authorities seem to be going back in history rather than learning from it.

References

Ess, C. (2014). Digital Media Ethics: Digital Media and Society Series (2nd ed.). Cambridge, UK: Polity Press.

Patterson, P. & Wilkins, L. (2014). Media Ethics: Issues & Cases (8th ed.). Singapore: McGraw-Hill Education.