Net Neutrality – What it is and Why it Matters

It’s tough to describe what access to the Internet has meant to our contemporary society, especially in terms of technological progress in our country and across the world. It can easily be said that the spread of Internet-based technologies has revolutionized our society and brought about the birth of what many consider to be the Information Age. Free and open access to a wide array of informational resources and software application through the Internet is now widely used in corporate, governmental and private individual situations to connect people and organizations to valuable communication networks.

It’s this incredible value intrinsic to the Internet that has been central to the debate over net neutrality. What was a fairly esoteric term just a few months ago has lately jumped to the forefront of the American political debate, thanks to newly proposed regulations set forward by the U.S. Federal Communications Commission (FCC). Just several days ago Tech Crunch reported that the FCC had received some 647,000 comments relating to its activities associated with net neutrality, a staggering sum. And thanks to glitches with the comment system, the announced yesterday that it would be extending the deadline to provide comments until midnight on Friday, July 18.

With all this in mind we wanted to take some time to look at this issue, which could affect all users of the Internet, from various angles to give our readers an opportunity to gain a clearer understanding of what’s at stake. At the core of the debate is government oversight of private Internet networks, and whether free access to all online resources is a basic right of all Internet users.

What is Net Neutrality

Network neutrality, more commonly referred to as “net neutrality,” is a concept which is being debated by a great number of journalists, public figures, corporate executives, public rights organizations and more. Although the concept can seem slightly overwhelming at first glance, this debate essentially involves the basic definition of the Internet, and whether we should treat it like a public utility.

A 2006 blog post from Tim Berners Lee, widely considered to be a founder of the modern-day Internet, published on his official Massachusetts Institute of Technology blog gives a fairly succinct summing-up of the idea of net neutrality:

“Net neutrality is this: If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level.”

In the viewpoint of Berners Lee, net neutrality isn’t about free access to the Internet or even the idea that people shouldn’t be able to pay more to experience a better service through an Internet service provider (ISP). However, the freedom of one party to connect to another party’s website or application through the Internet at all times, without any agency being able to block that connection, is a founding principle of the Internet as Berners Lee sees it.

It’s easy to find examples across the world of institutions and agencies who don’t value the ideals of net neutrality, and the restrictions it imposes on society. Countries like China, North Korea, Burma, Saudia Arabia and others restrict the access of their citizens to Internet resources for political reasons. ISPs themselves have also been accused of flouting the precepts of net neutrality, such as when Comcast throttled Internet traffic for the massive file transfer protocol BitTorrent. In fact, that particular Comcast case is a large part of the reason why our country has found itself locked in a debate about net neutrality.

The FCC and Net Neutrality

In 1996, the United States Congress passed the Telecommunications Act, which was the first major update to any law regarding American telecommunications since the 1930s. Although the Internet was beginning to make its presence felt in a big way, both for corporate networking systems and personal computing systems, this was still a very early time for the World Wide Web, and it’s important to remember that the Internet’s infrastructure is incredibly more robust now than it was in those days, less than 20 years ago.

The major result of the Telecommunications Act of 1996, at least as it regards our current debate on net neutrality, is the creation of separate regulatory statutes for telecommunications services and information services. The infrastructure for most telecommunications services are considered to be “common carriers”; there may be a system of electronics in place to to transmit telephone calls and television signals, but these systems simply carry data from one endpoint to another without processing that data in any way. Common carriage is an idea that stems back in American history to early canals and railroad systems; to preserve network openness, the owner of any network, including transportation networks, has typically been prohibited from preventing customers from intentionally slowing or preventing service to customers except in cases of logistical management or maintenance.

Information services are services that may use telecommunications infrastructures but, unlike simple telecommunications carriers, have the capacity to generate, process, store, acquire or transform information. According to the terms of the law, information services are not considered to be public utilities in the same way that telecommunications services are, which prohibits government agencies from having much regulatory control. At the time of the Telecommunications Act of 1996, the Internet was placed into this second regulatory category and considered to be an information service.

This classification of the Internet as an information service has been tested in court a number of times, and the Federal Communications Commission (FCC) has had its classification upheld in six rulings since 1997. It wasn’t until 2005 that open Internet principles were adopted by the FCC for consideration by ISPs; however, since the Internet provided by ISPs was classified as an information service, these guidelines were only suggestions and could not be enforced.

In 2008, when Comcast cut the Internet traffic to BitTorrent, a website long known as a haven for illegal downloaders, the FCC tried to enforce its open Internet principles by censuring Comcast for running afoul of those guidelines. However, Comcast plead its case in court, and in 2010 a federal appeals court found that the FCC overstepped its regulatory boundaries in trying to reprimand the ISP.

By 2010, efforts were underway at the FCC to develop the first official Open Internet regulations, meant to help enforce ideals of net neutrality. Under then-FCC Chairman Julius Genachowski, these regulations involve different sets of rules for wireless networks and broadband networks. Although some of the rules are aimed at making network management more transparent, wireless network providers would be able to discriminate against Internet applications that compete with their own telephony or video services. Also, wireless providers do not have the same prohibition on unreasonably discriminating against network traffic that was applied to fixed wireline broadband providers under these rules.

As soon as the Open Internet rules became public, Verizon filed a lawsuit against the FCC, claiming that the Federal Communications Commission had no standing to enforce these rules. In January 2014, the U.S. Court of Appeals for the District of Columbia overturned the FCC’s Open Internet rules. However, in the appellate court’s ruling, they agreed with the FCC that they have the authority under Section 706 of the Telecommunications Act of 1996 to regulate these networks. The FCC just cannot do so to the extent they would like as long as these networks continue to be classified as information services and not common carriers.

Why is Net Neutrality Important?

The latest round of regulations proposed by FCC Chairman Tom Wheeler in response to the January ruling just came out in late April. These regulations are coming under fire from many legislators and public advocates for what they see as an opening for the possibility of a two-tiered Internet. Net neutrality proponents debate that, because the language making up these new regulations is still vague, these net neutrality rules might enable broadband networks to sell priority services to large companies like Amazon or Netflix. These priority services might provide methods for ensuring that all ISP subscribers are presented with one company’s application rather than being able to view all applications for video streaming or online shopping, thereby limiting what a subscriber can access online.

The fact that wireless network providers like Verizon or Comcast could discriminate against traffic more easily and sell priority network services has many worried about the possibility of an “Internet slow lane.” This concept of a two-tiered Internet would provide total Internet connectivity to corporations and private individuals which could afford the rates and potentially block content for those who cannot afford higher levels of service. If the Internet is an information service, this may not be a major issue, but if the Internet is reclassified as a public utility, many expect that they should be able to connect with all websites and applications that maintain a web address. Unfortunately, the term “Internet slow lane” used by many to describe issues with the FCC’s new regulations is actually a confusing misnomer, as the issue is more about accessibility of digital content rather than actual speeds of Internet connectivity. Broadband providers already charge more for higher rates of connection.

The recent proposed regulations from the FCC only passed by a 3-2 margin and was opposed by two Republican commissioners, Robert McDowell and Meredith Attwell Baker. McDowell especially was vocal in his disagreement with the newly proposed rules, arguing that the current system is working well to deliver content across the Internet and that increased regulation would stifle innovation in Internet-based technologies. Others have been worried about the level of power the government would have over the Internet if the FCC were able to heavily regulate the Internet, which is pertinent given recent public concerns over privacy issues caused by the National Security Agency’s oversight of communications.

Abuses of power over the administration of Internet channels in the past have been documented by organizations like the American Civil Liberties Union (ACLU). This ACLU fact sheet on net neutrality offers a couple of examples of this abuse, including the aforementioned Comcast/BitTorrent case. The major concern of these abuses seem to be the potential that an ISP or government agency could interfere with free and open communication for political reasons. In 2007, Verizon cut text messaging services for the women’s rights organization NARAL Pro-Choice America, stating that it would not service controversial users; the company later reversed its decision. Also in 2007, AT&T censored political messages spoken by Eddy Vedder at a Pearl Jam concert being broadcast as a video stream by AT&T, also a major sponsor of the concert, calling Vedder’s criticisms of President Bush “excessive profanity.”

Where we now stand on net neutrality as a nation is tough to describe simply. Much of the uncertainty revolves around the FCC’s changing role as an Internet regulator. Will the FCC reclassify broadband Internet as a telecommunications service, allowing for the same common carrier regulation as telephone networks, or will their new regulations actually enable large corporations to squeeze out smaller competitors that can’t afford the ISP charges? It does seem that the choice at this moment is a choice between increased Internet regulation as a public utility by the government or the possibility, albeit not the certainty, that Internet service providers could have a say in what parts of the Internet you can access.