Net neutrality is a dead man walking. The execution date isn’t set,
but it could be days, or months (at best). And since net neutrality is
the principle forbidding huge telecommunications companies from treating
users, websites, or apps differently — say, by letting some work better
than others over their pipes — the dead man walking isn’t some abstract
or far-removed principle just for wonks: It affects the internet as we
all know it.
Once upon a time, companies like AT&T, Comcast, Verizon, and
others declared a war on the internet’s foundational principle: that its
networks should be “neutral” and users don’t need anyone’s permission
to invent, create, communicate, broadcast, or share online. The neutral
and level playing field provided by permissionless innovation has empowered all of us with the freedom to express ourselves and innovate online without having to seek the permission of a remote telecom executive.
But today, that freedom won’t survive much longer if a federal court —
the second most powerful court in the nation behind the Supreme Court,
the DC Circuit — is set to strike down the nation’s net neutrality law, a
rule adopted by the Federal Communications Commission in 2010. Some
will claim the new solution “splits the baby”
in a way that somehow doesn’t kill net neutrality and so we should be
grateful. But make no mistake: Despite eight years of public and
political activism by multitudes fighting for freedom on the internet, a court decision may soon take it away.
Marvin Ammori
Marvin Ammori is
a Future Tense Fellow at the New America Foundation and a lawyer who
represents technology companies on internet policy issues. He is also
the cofounder of a startup, Wearab.ly, which enables content to be
distributed to wearable devices. A graduate of Harvard Law School,
Ammori serves on the boards of Demand Progress, Fight for the Future,
and Engine Advocacy.
Fast Company named him one of the 100 Most
Creative People in Business in 2012 for being Silicon Valley’s “go-to
First Amendment guy” and one of the leaders of the campaign against SOPA
and PIPA.
Game of Loopholes and Rules
How did we get here?
The CEO of AT&T told
an interviewer back in 2005 that he wanted to introduce a new business
model to the internet: charging companies like Google and Yahoo! to
reliably reach internet users on the AT&T network. Keep in mind that
users already pay to access the internet and that Google and Yahoo!
already pay other telecom companies — often called backbone providers —
to connect to these internet users. [Disclosure: I have done legal work
for several companies supporting network neutrality, including Google.]
But AT&T wanted to add an additional toll, beyond what it already
made from the internet. Shortly after that, a Verizon executive voiced
agreement, hoping to end what he called tech companies’ “free lunch”.
It turns out that around the same time, Comcast had begun secretly trialing
services to block some of the web’s most popular applications that
could pose a competitive threat to Comcast, such as BitTorrent.
Yet the phone and cable companies tried to dress up their plans as a false compromise. Counterintuitively, they supported telecommunications legislation in 2006 that would authorize the FCC to stop phone and cable companies from blocking websites.
There was a catch, however. The bills included an exception that
swallowed the rule: the FCC would be unable to stop cable and phone
companies from taxing innovators or providing worse service to some
sites and better service to others. Since we know internet users tend to
quit using
a website or application if it loads even just a few seconds slower
than a competitor’s version, this no-blocking rule would essentially
have enabled the phone and cable companies to discriminate by picking
website/app/platform winners and losers. (Congress would merely enact
the loophole. Think of it as a safe harbor for discriminating online.)
Luckily, consumer groups, technology companies, political leaders,
and American citizens saw through the nonsense and rallied around a
principle to preserve the internet’s openness. They advocated for one
simple, necessary rule — a nondiscrimination principle that
became known as “network neutrality”. This principle would forbid phone
and cable companies not only from blocking — but also from discriminating between or entering in special business deals to the benefit of — some sites over others.
Unfortunately, the FCC decision that
included the nondiscrimination rule still had major loopholes —
especially when it came to mobile networks.
Both sides battled out the issues before Congress, federal agencies,
and in several senate and presidential campaigns over the next five
years. These fights culminated in the 2010 FCC decision that included
the nondiscrimination rule.
Unfortunately, the rule still had major loopholes — especially when
it came to mobile networks. It also was built, to some extent, on a
shaky political foundation because the then-FCC chairman repeatedly
folded when facing pressure. Still, the adopted rule was better than
nothing, and it was a major advance over AT&T’s opening bid in 2005
of a no-blocking rule.
As a result, Verizon took
the FCC to court to void the 2010 FCC rule. Verizon went to court to
attack the part of the rule forbidding them from discriminating among
websites and applications; from setting up — on what we once called the
information superhighway — the equivalents of tollbooths, fast lanes,
and dirt roads.
There and Back Again
So that’s where we are today — waiting for the second most powerful
court in the nation, the DC Circuit, to rule in Verizon’s case. During
the case’s oral argument, back in early September, corporate lobbyists,
lawyers, financial analysts, and consumer advocates packed into the
courtroom: some sitting, some standing, some relegated to an overflow
room.
Since then, everyone interested in internet freedom has been waiting
for an opinion — including everyday folks who search the web or share
their thoughts in 140 characters; and including me, who argued the first
(losing) network neutrality case before the DC Circuit in 2010.
Web and mobile companies will live or die
not on the merits of their technology, but on the deals they can strike
with AT&T, Verizon, Comcast, and others.
But, in their questions and statements during oral argument, the
judges have made clear how they planned to rule — for the phone and
cable companies, not for those who use the internet. While the FCC has
the power to impose the toothless “no-blocking” rule (originally
proposed by AT&T above), it does not (the court will say) have the
power to impose the essential “nondiscrimination” rule.
It looks like we’ll end up where AT&T initially began: a false compromise.
The implications of such a decision would be profound. Web and mobile
companies will live or die not on the merits of their technology and
design, but on the deals they can strike with AT&T, Verizon,
Comcast, and others. This means large phone and cable companies will be
able to “shakedown” startups and established companies in every sector,
requiring payment for reliable service. In fact, during the oral
argument in the current case, Verizon’s lawyer said, “I’m authorized to
state from my client today that but for these [FCC] rules we would be
exploring those types of arrangements.”
Wait, it gets even worse. Pricing isn’t even a necessary forcing
factor. Once the court voids the nondiscrimination rule, AT&T,
Verizon, and Comcast will be able to deliver some sites and services
more quickly and reliably than others for any reason. Whim. Envy. Ignorance. Competition. Vengeance. Whatever. Or, no reason at all.
So what if you’ve got a great new company, an amazing group of
founders, a seat in a reputable accelerator program, great investors and
mentors. With the permission-based innovation over “our pipes” desired
from the likes of Comcast, Verizon and AT&T… there’s no meritocracy
here.
Of course, despite everything the judges suggested during the
two-hour argument, it’s possible that they offer net neutrality a
reprieve. Given how sticky this morass is, there’s one simple way for
you to judge the opinion: If the court throws out the non-discrimination
rule, permission-less innovation on the internet as we know it is done.
If the nondiscrimination rule miraculously survives, then, for now at
least, so too will freedom on the internet.
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