In our 664th issue:

Deep Dive: In Defense of a Neutral Net

In most issues of EFFector, we give an overview of the issues we’re working on at EFF right now. This week, we’re taking a deep dive into a single issue: network neutrality and the current debate at the Federal Communications Commission around protecting the future of our open Internet.

The FCC is about to make a critical decision about whether Internet providers will be allowed to discriminate against certain websites. The issue is network neutrality, and it’s the principle that Internet providers must treat all data that travels over their networks equally. And it is a principle that EFF strongly supports.

Without it, companies like Comcast and Verizon will be permitted to give preferential treatment to some websites over others. This would be a disaster for the open Internet. When new websites can’t get high-quality service, they’ll be less likely to reach users and less likely to succeed. The result: a less diverse Internet.

Just think about all the ways an open Internet has transformed the world. It’s changed the way we communicate, learn, share, and create. Citizens have used it to organize against government oppression. Innovative companies have helped us to map our communities and connect Internet users to family and friends across continents. Likewise, the Internet has revolutionized education: students can access knowledge previously tucked away in university libraries, now readily available online.

We want the Internet to live up to its promise, fostering innovation, creativity, and freedom. We don’t want regulations that will turn ISPs into gatekeepers, making special deals with a few companies and inhibiting new competition, innovation and expression.

The Dangers of Discrimination

Net neutrality is not just about speeding up access to websites. Other forms of pay-for-play and general accessibility discrimination are equally important. Here are a few ways ISPs have throttled or blocked content in the past. EFF stands firm in our opposition to this kind of behavior:

• Comcast was caught interfering with their customers’ use of BitTorrent and other peer-to-peer file sharing
• A Canadian ISP slowed down all encrypted file transfers for five years
• The FCC fined Verizon for charging consumers for using their phone as a mobile hotspot
• There's also "fast lane" discrimination that allows wireless customers without data plans to access certain sites but not the whole Internet

Individually and collectively, these practices pose a dire threat to the engine of innovation that has allowed hackers, startup companies, and kids in their college dorm rooms to make the Internet that we know and love today. This is why the principle of net neutrality is so important and why the FCC’s plan to allow for discriminatory deal-making must be stopped.

How We Got Into This Mess

In January, a federal court ruled that the FCC’s old 2010 net neutrality rules were deeply flawed, sending the FCC back to the drawing board to create new rules to keep Internet providers in check.

We had many concerns about the FCC’s old net neutrality rules. As we explained in comments in 2010, the FCC's rules would have allowed ISPs free rein to discriminate as long as it was part of “reasonable efforts to… address copyright infringement.” This broad language could lead to more bogus copyright policing from the ISPs.

The FCC also has a sad history of being captured by the very industries it’s supposed to regulate while ignoring grassroots public opinion. In the early 2000s, for example, the commission essentially ignored the comments of hundreds of thousands of Americans who opposed media consolidation.

A Way Forward

We’d prefer to see more competition and community solutions, but while that's in the works EFF thinks that the FCC needs to enact a few rules of the road to protect users from the kinds of non-neutral behavior we’re already beginning to see from Internet providers.

The FCC’s role needs to be narrow, firmly bounded, and limited to specific problems, like prohibiting Internet providers from charging any kind of fees reach Internet users at faster speeds—and promoting local competition with a renewed “open access” rule.

But to get to a place where the FCC can actually enforce narrow net neutrality rules, the FCC first needs to change how it classifies high-speed Internet access. Right now, Internet access is considered an “information service” like cable television, but in order to enact rules that prohibit certain types of non-neutral conduct by Internet providers, the FCC needs to reclassify the Internet as a “telecommunication service” like telephone lines. If the FCC does not reclassify the Internet, it will not have the authority to prevent Internet providers from slowing down our access to websites that can’t afford to pay for faster speeds.

But reclassification by itself isn't enough. The FCC should sharply define its regulatory reach with forbearance. Essentially, forbearance is the process by which the Federal Communications Commission expressly commits NOT to apply certain rules to a particular communications service. Without it, a whole set of policies will be applied to the Internet that were originally created for telephone systems. So while EFF thinks it’s important that the FCC reclassify Internet access in order to create some bright-line rules against network discrimination, we think it’s equally important for the FCC limit its authority to only do what is needed to preserve an open Internet—and no more.

A Constellation of Solutions

Rules that block non-neutral behavior aren’t all we need. EFF is also calling for drastically enhanced transparency rules and community based solutions that promote competition, like municipal and community deployment of fiber. Network neutrality rules also must extend to mobile data networks, which is currently not the case.

Without detailed transparency into how providers are managing their networks, users will be unable to determine why some webpages are slow to load, while new services that hope to reach those users will have a harder time figuring out if there is some artificial barrier in place.

We also need more competition. Right now most Internet users have only one or two options for high-speed Internet for their homes and businesses. 20 states currently have anti-competitive laws that restrict the ability for community groups and municipalities from building their own networks. Fortunately, the FCC has said it will challenge these laws. But we can also organize locally to encourage more high-speed Internet options in our cities, like by urging mayors to light up unused fiber or building community networks.

The Battle Is Far From Won

Unfortunately, the FCC has proposed rules that would allow companies like Comcast and Verizon to charge websites and web applications a fee to reach users more reliably. The good news is we are speaking up. The FCC has opened a “rulemaking” process, where the agency has asked the public to weigh-in on its proposed rules. We created a tool, DearFCC.org, to help everyone take part in this important debate.

If the FCC embraces rules that allow wealthy incumbent companies to reach users at faster speeds, the services we see in the future could be the same companies that are popular today. But we want to expect the unexpected. To get there, we have to make certain new businesses and services are able to meaningfully connect to users.

This rulemaking process is one of our best opportunities to be heard. Visit DearFCC.org and tell your story today. The FCC needs to hear us loud and clear: It’s our Internet, and we’re going to fight to protect it.

Learn More About This Issue:

BREAKING: Congress is trying to rush to pass an amendment that will kill net neutrality. We only have a couple of days at most. Visit DearFCC.org/Call and tell your representative to vote NO on the amendment to H.R. 5016 that strips away FCC authority to enact meaningful net neutrality rules.

• Net Neutrality and Transparency Principles Must Extend to Mobile Internet Access Too
• What on Earth Is Going On at the FCC? A Guide to the Proposed Net Neutrality Rules
• Forbearance: What It Is, Why It’s Essential to Net Neutrality
• The FCC and Net Neutrality: A Way Forward
• Neutrality Begins At Home: What U.S. Mayors Can Do Right Now to Support a Neutral Internet
• Net Neutrality Will Require Us to Shine the Light on Internet Providers
• In Harm's Way: The Dangers of a World Without Net Neutrality

Thanks for reading,

April Glaser
EFF Activism Team

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Editor: Nadia Kayyali, Activist
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