14 November, 2016
The new president-elect of the United States did not run on a platform of clearly stated policies. This makes it tricky to predict the future direction of US Internet regulation, which will directly or indirectly affect all Internet users around the world. The people who work in the White House or other relevant government departments that I’ve interacted with recently are largely confused about the future of the legislative progresses they started under Obama. In this post I will assess what the US media and Internet regulation blogs are writing about one of the core principles of the Internet: net neutrality.
In short, net neutrality is a foundational principle of the Internet. The end-to-end principle of the Internet’s design places intelligence at the edges of the network, while keeping the operation of the network and its data transfers ‘dumb’, or neutral with regards to the types of data that are transmitted. Paraphrasing Wikipedia: Organizations that operate the technical layers of the Internet may not discriminate or charge differentially “by user, content, website, platform, application, type of attached equipment, or mode of communication.” So, telecom providers may not charge you for Whatsapp or slow down video just because these apps may be in competition with their business models. Neutrality is meant on an abstract regulatory level, not in the engineering sense of the word. Some form of network management will always be required and exceptions to the rule should be accounted for.
Without a strong legal protection of net neutrality, the Internet would likely look very different than the open and permissionless innovation platform we know today. The principle is therefore an intervention on the significant power that Internet gatekeepers and intermediaries may exert on the infosphere in favor of profit rather than the Internet’s social function. Mind you, there is much money to be made by gatekeepers to information services in an “Information Age,” so law can construct a rebalancing of this power.
The principle of net neutrality has thus been enacted in formal legislation in some countries or specified as an important policy objective in others. For example, The Netherlands enacted strong net neutrality legislation in 2011, the EU offers a weaker version with compromises (aka. loopholes), and in the US the net neutrality issue is an ongoing debate where interest groups have been busy challenging the Federal Communication Commission’s (FCC) net neutrality rules of 2015. Donald Trump could kill this legislative progress in the US and as a result of the US’s dominant online services, make the Internet more like an interactive version of broadcast cable television. Here’s how:
The FCC is comprised of five commissioners. Under Obama it consisted of three Democrats and two Republicans. The current chairman – Democrat Tom Wheeler – will likely be replaced by a Republican soon. The Republican Party has (for some reason) labeled net neutrality as “Obamacare for the Internet.” This comparison makes no sense (as explained by The Oatmeal), but may give enough justification in the current political climate to scrap the existing rules by majority vote among the new commissioners. Add to this Trump’s tweet about Obama’s net neutrality proposals in 2014:
“Obama’s attack on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target conservative media.”
(For the confused reader: indeed, this line of reasoning – again – makes no sense. It would not target any media, conservative or otherwise, but rather ensure a global open platform to enable it.)
Business Insider speculates whether free-telecom-market evangelist Jeffrey Eisenach may be advising Trump on telecom issues, and Inverse even suggests that Eisenach may be the next FCC chairman. In 2014 Eisenach testified in the US Senate about net neutrality with the following reasoning:
“[N]et neutrality regulation cannot be justified on grounds of enhancing consumer welfare or protecting the public interest. Rather, it is best understood as an effort by one set of private interests to enrich itself by using the power of the state to obtain free services from another […]”
He uses the case of Netflix using much bandwidth at no cost to them to provide their service. It is troubling that he uses just one example to propose changes to the fundamentals of how the vast and complex Internet works and has flourished over the last decades. It’s too simplified political rhetoric where political opportunism ‘trumps’ complex sociotechnical systems reasoning.
Scrapping the current net neutrality rules will likely lead to some very heavy campaigning by well-funded (and less well-funded) open Internet advocates, as it is one of the most important principles of the Internet as we know it. So, if the rules aren’t scrapped, there are still some options to render them useless. For example, Ars Technica notes that the FCC enacted fairly strict net neutrality rules, but currently uses ‘forbearance’ rules to avoid applying all regulations to Internet providers. A Republican FCC can use this same forbearance to simply not enforce the rules at all, or very weakly.
Pro-net neutrality policy makers could try to find a compromise and propose some EU-style compromise/loophole legislation in DC. Over the last few years, several net neutrality Bills have surfaced in American politics with varying strictness about net neutrality. Many, of course, had misleading names, such as the “Internet Freedom Act” that would in fact do the exact opposite. However, the Washington Post mentions that “[w]ith Republicans in control of all three branches of government, however, there is little incentive for a deal […].”
There’s much speculation about the future for technology and science policy during the Trump presidency. The net neutrality debate remains interesting and seems to be never-ending. However, it will likely now reach a climax, since US Internet regulation will have an effect world wide due to the American dominance in Internet technology development and its globally operating services that will need to embed these laws in their code or governance structures. I’d encourage you to read up on Chris Marsden’s Net Neutrality book (or preorder the upcoming version) if you wish to engage in this debate meaningfully!
Academic Liaison at Princeton University
De inkt van de Algemene Verordening Gegevensbescherming (AVG) is nog niet droog en op alle vlakken...
Het Passenger Name Record-akkoord (‘PNR-akkoord’) is volgens het Europees Hof van Justitie niet...