Guest post by Tyrone Patrick, BroadbandSearch.net
Originally posted at https://www.broadbandsearch.net/blog/net-neutrality
The issues we consider important as a population seem to change with the seasons. As new challenges emerge or light is shed on new causes, our attention shifts, pushing issues we once cared deeply about into the background.
The Coronavirus pandemic made it so that we didn’t really focus on anything else. However, these other issues don’t just go away. The fact that no one is paying any attention to them means we run the risk of decisions being made or laws being passed that can significantly affect us all, without anyone knowing it happened.
One such issue that seems to have fallen from the public eye in recent times is net neutrality. A hot topic during the Obama administration and the beginning of the Trump administration, but we haven’t heard much about net neutrality in the recent past. It is still a concern and is something we as a society need to pay attention to.
So, in case your attention has been elsewhere (and we wouldn’t blame you if it was), here’s where we stand in the world of net neutrality in 2021:
What is Net Neutrality?
Before we go too far, let’s make sure we’re all on the same page and know what net neutrality is.
In general, the concept of “net neutrality” refers to the idea that the internet should remain as free and open as possible.
In other words, no one can “own” the internet or take excessive control over the types of content that are published there. This harks back to the original days of the internet, which was created as a means of freely exchanging information.
However, today, net neutrality refers to something more specific, mainly the power internet providers have over the internet.
In short, with net neutrality, ISPs must deliver the same service to every user, no matter who they are or, more importantly, how much they pay for their service. There is no preference system. Each user is treated the same, and in this way, the internet remains free and open.
Net neutrality’s three main points are no blocking, no throttling (intentionally slowing down a connection), and no paying-for-preference.
Including these elements in a policy of internet regulation seems to be a no-brainer to the average person, but, as you will see, ISPs claim things aren’t so simple. They also claim that net neutrality advocates exaggerate what could happen if net neutrality didn’t exist.
Let’s dive a bit deeper into both sides of the argument.
Why is Net Neutrality Important?
Proponents of net neutrality argue that it is necessary to establish this rule and enshrine it in law to protect the freedom and openness of the internet.
In their eyes, the internet is an essential bastion of free speech. At the moment, anyone can publish anything they want on the internet. Of course, there are some limitations, as in cases where that content is harmful or illegal. However, beyond that, there aren’t any rules. This is in part what makes the internet so unique. At no other moment in human history have we had access to such a system of publication and free information exchange.
If net neutrality is abolished, advocates argue that ISPs could wind up with too much control over what content we get to see. Sites that can pay higher prices to the ISPs could wind up receiving preference when regular people go out to search for information.
As an example, major news networks could use their considerable resources to purchase preference from ISPs. This would mean that their content would make it in front of more people, thus influencing how people think about and debate the issues of the day.
One could argue this already happens anyway, but proponents claim that without guaranteed net neutrality, things would be much, much worse.
Now, let’s see what the other side has to say:
The Argument Against Net Neutrality
Based on what we’ve laid it out so far, net neutrality seems like a fairly basic concept. So, who would oppose it? And, perhaps more importantly, why would they oppose it?
Well, the short answer to the first question is the internet industry, mainly ISPs.
Why do they oppose it? The answer to this question is not quite as clear.
They argue that upholding net neutrality stifles innovation. From their perspective, sites such as Netflix and YouTube, and CNN use way more data than the vast majority of sites. Because of this, ISPs want to be able to charge these customers more, which they claim will allow them to invest more in innovation and infrastructure, thus improving the net for everyone.
According to the ISPs, the type of scenario proponents of net neutrality warn about simply doesn’t happen. They say that they have no interest in controlling the types of content that people see. Instead, they want to charge what they consider to be a fair price for their offering.
Proponents of net neutrality typically don’t buy this logic, pointing to the countless other times big industry has used regulation (or the lack thereof) to restrict information flow and establish monopolies. In their view, the mere possibility of this happening is enough to take action to make sure it never does.
Of course, what this does is frame the debate as one of regulation versus innovation. This may or may not be the best way to look at it – proponents of net neutrality aren’t necessarily looking for regulation so much as a legal framework to uphold what they see as fundamental aspects of a free internet. Yet, it’s how the debate is often framed.
Let’s take a look at what has happened in the world of net neutrality since the concept was first introduced.
A Brief History of Net Neutrality
Before we get into where we are today, it’s important to know a bit about the history of net neutrality up until this point. Here’s a summary of the most important events to have taken place over the past few decades.
The Open Internet
This isn’t so much an event as an important ideological backdrop to the issue of net neutrality. In short, the concept of the “open internet” emerged pretty much right alongside the development of the internet for itself.
It was basically a movement focused on making sure that the internet remained a place for the free and open exchange of information.
For this to make sense, it’s helpful to know a bit about how the internet came into existence. Initially, the U.S. Army developed the internet to help university professors and other academics share their research.
Over time, as they perfected this system, it became clear that it would have a more widespread, mainstream appeal. Computer scientists worldwide set their minds to creating the technological infrastructure that would become the internet as we know it today.
As this happened, the idea of the “open internet” also appeared.
This spirit gave birth to the concept of net neutrality and the movement that would rise up in support of it, though it would take a few decades for this to be an issue.
Net Neutrality as a Concept
Although the internet has its roots in the 1950s and went mainstream in the 1990s, it wasn’t until 2003 that we would first hear the term “net neutrality.”
Columbia University media law professor Tim Wu is generally credited with having come up with the term when he was writing about internet providers’ regulation. Essentially, he argued that internet providers should be treated as public utilities much in the same way we treat phone, electric, and gas companies.
This was significant because it was one of the first times people thought about internet providers in this way. Remember, the internet was nowhere to be found in the 1980s, but less than 20 years later, it was a part of mainstream life.
Whether or not ISPs should be regulated and how this should happen was still a relatively new conversation topic. Wu pushed the debate forward by describing ISPs in this way, and this helped shed light on some of the potential risks facing the open internet.
From there, the movement for net neutrality only grew, eventually making its way into the national conversation.
Brand X Case: Information Service or Telecommunications Carrier?
One of the biggest arguments in the net neutrality debate is over which type of company an ISP is. Specifically, is it an information service or a telecommunications carrier? To give you an idea of the difference, AOL is an information service. The phone company is a communications carrier.
To most people, it seems relatively straightforward that ISPs would be classified as telecommunications carriers, which would allow them to be more closely regulated.
The debate raged for some time, and eventually, the Supreme Court of the United States had to step in to make a decision. They did so in 2005 in the Brand X case. In this decision, the court ruled that ISPs are indeed a type of information service, and therefore can’t be regulated in the same way as a telecommunications carrier.
It was this decision that has made it so hard to enact lasting net neutrality rules over the years. The most serious attempt was made during the Obama administration.
The Obama Administration
Always the champion of progressive causes, Barack Obama first came out supporting net neutrality when he was still a senator from Illinois back in 2007.
That following year he would run for president and included this stance as part of his platform, though few knew how much he would actually pursue this issue once in office.
However, Obama stuck to his word. In 2010 (after dealing with the fallout of the 2008 financial crisis), he instructed the Federal Communications Commission (FCC) to come out with strong net neutrality rules. This was an attempt to settle the issue once and for all, and in the eyes of his supporters, guarantee net neutrality moving forward.
These rules were put into place, enshrining net neutrality in FCC policy. Almost immediately, Verizon Wireless, supported by the rest of the telecommunications industry, sued the FCC and got the rules overturned. The Brand X case from 2005 served as precedent, meaning the FCC would need to take a different approach if it wanted to pass the rules.
Things seemed lost, and Obama turned away from the issue. In 2015, as his time in office was winding down, he took it back up and once again instructed the FCC to devise a series of rules to protect net neutrality.
The FCC voted to pass these rules, though worded them differently, and this time they held up in court, making them an official part of FCC policy. This marked not only the first time the FCC took action to regulate ISPs specifically but also a victory for the net neutrality movement, or so they thought.
The Trump Administration
Obama’s FCC passed net neutrality laws in 2015, and the courts upheld them in 2016. However, this would be a short-lived victory for the movement. As he did with pretty much every single Obama-era policy, Trump overturned the FCC’s rules. Or, he instructed his head of the FCC to roll back the regulations that had just finally been put into place.
Before doing this, Trump’s FCC also rolled back regulations on what ISPs can do with your browsing data, saying it’s okay for this information to be sold to advertisers.
Together, these two policy decisions showed that the Trump administration would take the side of corporations and industry when it came to net neutrality. Considering this is what he did with pretty much every issue he faced while president, this doesn’t come as much of a surprise.
The telecommunications industry was obviously quite happy about this outcome, but it seemed like an unnecessary thing to do at the time. Public opinion is clearly in favor of net neutrality, yet Trump still felt the rules needed to be repealed.
Whether you think this is a good or bad thing, the reality is that by 2017, net neutrality was no longer guaranteed by the FCC, even though just a year prior, it had approved rules designed to protect it.
What’s the Latest in 2021?
In terms of “major” developments in the story of net neutrality, you’re now up to speed. Since Trump rolled back the Obama-era regulations, not much has changed.
The evidence we have suggests that despite this, ISPs are not influencing priority on the internet, but we don’t have access to enough information to know if this is true.
Shortly after Trump’s FCC reversed the rules established under Obama, the top ISPs in the country came out saying that they wouldn’t violate the core principles of net neutrality (kind of, anyway). They were also operating in an environment where the rules had been lifted, so who knows what they’ve been up to since.
Unfortunately, what makes things worse is that the FCC’s lack of rules means ISPs don’t have to release data related to throttling and blocking. This is concerning because it means they could most certainly be doing it. It’s just that no one is noticing.
Besides this, here are all the other most recent developments in the world of net neutrality:
A Political Issue?
Based on the fact that the first FCC regulations surrounding net neutrality came from Obama and were repealed by Trump, it’s easy to think that this is yet another issue in American life that has become political for no reason.
However, this isn’t the case. A study conducted shortly after Trump’s FCC repealed the rules found that not only do the vast majority – 86 percent in total – of Americans support the regulations put in place under Obama, but there is little difference in support between Republicans and Democrats. Around 90 percent of Democrats opposed repealing the regulations as compared to 80 percent of Republicans. Here’s a graph that breaks down support for this issue:
So, this brings us back to our original question: why did Trump repeal the laws?
We’re going to avoid trying to figure out what goes through Donald Trump’s mind, but it seems that he was acting more to help the corporations who stand to lose from net neutrality than following public opinion.
However, when the rules were changed to no longer protect net neutrality, the Senate voted pretty much directly along party lines.
This suggests this issue is, in fact, a political one. It’s one that’s being dealt with by the people at the top. No matter where you stand in this debate, it should be concerning that there isn’t more public outreach involved with an issue that stands to impact everyday people’s lives.
The FCC Is Allowed to Block Net Neutrality
Just as the ISPs sued when the FCC imposed regulations back in 2010 and 2015/16, so too did proponents of net neutrality when Trump’s administration chose to repeal them. However, this ultimately proved to be unsuccessful. It took several years, but the case finally made it to the D.C. District Court of Appeals, where the laws were upheld by a thin margin.
However, this case’s legal arguments suggest that the debate has gotten pretty far from the original concept.
At this point, as Nilay Patel from The Verge says, “the legal side of net neutrality has become an exercise in lawyers making fine-grained arguments about whether washing machines can make phone calls, whether consumers with a single broadband provider still experience the benefits of competition, and whether or not federal regulations can override state law if the federal regulations don’t actually exist.”
This doesn’t provide a lot of promise for net neutrality proponents, as it just means that there will be countless more lawsuits and much more legalese before there’s a decision. Who knows what the world will look like by the time all that is done?
California Is Allowed to Enforce Net Neutrality
Although the federal government plays a considerable role in setting the stage for specific issues, individual states also have their own power to act. They often do so when a federal policy goes against the people’s preference from that state.
California is known for being at the forefront of legislation, and so after net neutrality was removed from FCC policy, the state set out to establish its own policy.
This was, of course, challenged in the courts. A very recent decision means that California can enforce these rules on the state level.
Although a small victory for advocates of net neutrality, it is still a victory. It shows a potential path forward – changing the laws state by state. However, this is unlikely to be anywhere as effective as convincing the FCC to change its rules.
Other Issues
At the moment, net neutrality as an independent concept and policy is a bit dormant. The Biden administration has not expressed any intention to take up the issue soon, probably because there are far more pressing matters. This is part of the problem; while important, net neutrality is often far down on the priority list for people.
However, many other issues are popping up today connected to net neutrality that may help bring it back into the conversation.
For example, many ISPs are now starting to introduce monthly data caps into their plans, something they can only do thanks to the lack of regulations currently in place. In other news, wireless companies are looking to block the sale of unlocked phones.
There’s also the issue of our browsing history and, in general, our privacy on the web. Who has control over all the data that’s out there?
This is not an easy question to answer, but one we must answer as a society if we want the internet to remain a resource and not a liability moving forward.
What’s Next?
At the moment, we are in a period of wait and see. In the meantime, it’s important to keep up on the debate, engage with elected officials, and also keep tabs on ISPs to see if they are misusing the freedom they currently have.
So, we shall see what happens next, but when something does happen, you can read about it here (and of course, on the BroadbandSearch.net blog).
