Last week the internet went insane when the FCC announced it would likely repeal the Obama-era “Open Internet Act” which enshrined “net neutrality” into law.
Ajit Pai, who was appointed to the FCC by then President Obama, entered a dissenting opinion when the rule was enacted. He was later made FCC chair by Trump.
From Pai’s dissenting opinion statement in the 2015 decision (downloadable here):
“For twenty years, there’s been a bipartisan consensus in favor of a free and open Internet. A Republican Congress and a Democratic President enshrined in the Telecommunications Act of 1996 the principle that the Internet should be a “vibrant and competitive free market . . . unfettered by Federal or State regulation.”
But today, the FCC abandons those policies. It reclassifies broadband Internet access service as a Title II telecommunications service. It seizes unilateral authority to regulate Internet conduct, to direct where Internet service providers put their investments, and to determine what service plans will be available to the American public. This is not only a radical departure from the bipartisan, market-oriented policies that have served us so well for the last two decades.
The Commission’s decision to adopt President Obama’s plan marks a monumental shift toward government control of the Internet. It gives the FCC the power to micromanage virtually every aspect of how the Internet works. It’s an overreach that will let a Washington bureaucracy, and not the American people, decide the future of the online world.
Pai’s dissenting opinion is 79 pages long. When you read it, you get the sense that the law would perversely protect large size incumbents and heavily penalize smaller upstarts. One example he cited was that the activists promoting the rule didn’t target AT&T nor Verizon with their first net neutrality complaint, but rather MetroPCS – a tiny challenger with single digit percent market share, who’s alleged crime was offering unlimited Youtube.
What’s troubling about the original act
The original act contains “The General Conduct Rule”, a broad, overly vague declaration that empowers the government to step in and literally control the internet for reasons that can be widely interpreted to mean pretty well anything.
In then FCC Chairman’s Tom Wheeler’s words:
The Order also includes a general conduct rule that can be used to stop new and novel threats to the Internet. That means there will be basic ground rules and a referee on the field to enforce them. If an action hurts consumers, competition, or innovation, the FCC will have the authority to throw the flag.
What did that mean exactly? Even the Electronic Frontier Foundation and Techdirt (enormous respect to both, and both proponents of net neutrality) have concerns that the general conduct rule is too vague and could be abused. Given Obama’s later ruminations below, and events of the last year – the General Conduct Rule provides a legal justification for outright censorship:
“We are going to have to rebuild within this wild-wild-west-of-information flow some sort of curating function that people agree to… There has to be, I think, some sort of way in which we can sort through information that passes some basic truthiness tests and those that we have to discard, because they just don’t have any basis in anything that’s actually happening in the world…That is hard to do, but I think it’s going to be necessary, it’s going to be possible,”
— Barack Obama in speech at Frontiers Conference, Pittsburgh, PA, Oct 13, 2016 (emphasis added)
So, you’re really worried about “net neutrality”?
If all you care about when you think “net neutrality” is binge watching Stranger Things over your iPhone’s LTE while you drive to work, you may not be seeing the big picture. Also, don’t worry – even after the repeal your ability to do so will continue unfettered (see below).
The gigantic social apps like Facebook and Twitter are known to have themselves run programs and agendas to shape opinion, control what people see or don’t see, and I would argue that these initiatives pose greater threats to a free and open internet than competitive issues around the raw connectivity one uses to connect to it.
Google CEO Eric Schmidt recently announced that the search engine giant will “de-rank” RT.com and Sputnik news. Nobody cares, because the mainstream media has been diligently cranking the shriek-o-meter over alleged Russian election interference for a year now (nevermind that the US has a long history of routinely interfering in foreign elections and is doing so right now, in Hungary’s election). But if you think Google’s announcement is anything other than a “trial balloon” for future search engine shaping then I have an ICO for you!
Let them eat throttle
If somebody wants to throttle Facetime traffic, or VPNs, or bittorrent I say let them. That way other ISPs will compete on the basis that they don’t. Companies such as Canada’s own Tucows/Ting, who is in the broadband access business south of the border has always been and will always be a supporter of net neutrality in their own conduct. They won’t throttle, that’s one of the many things that makes them attractive to prospective customers (disclosure: former shareholder, customer).
When ISPs started blocking port 25 to prevent customers from setting up mailservers on their home connections, companies like ours offered SMTP port forwarding to work around it.
In the future, the more companies throttle (but they won’t, see below), the more innovation will spring up from the private sector to thwart the throttling and win the customer over in the process of doing so, this is the way it’s supposed to work.
Even my concerns around Google, Facebook, Twitter shaping traffic, influencing what is seen and not seen let them. That’s their choice and people are already reacting to it. People are switching off Twitter to Gab. If not Gab today, then something else tomorrow.
I switched off of Google to DuckDuckGo a few months ago (enjoying the massive decrease in being stalked across the internet by retargeted ads), and we removed Google analytics from easyDNS years ago. Next generation search engines, decentralized, blockchain enabled like Presearch.io are already in the pipeline. Alternative browsers like Brave are already here.
In the very near future even the connectivity providers will face emergent competition from decentralized mesh networks.
That’s what happens. Because in the end, people are smart enough to know what they want and if the current incumbents are part of the problem then the people are smart enough to build and find the alternatives.
What the repeal really means
At the end of the day, repealing the act simply reverts the regulatory climate back to pre-2015 landscape, more-or-less. I don’t recall the internet grinding to a halt because of rampant ISP throttling. Sure, there were cases but they were largely answered via competitive entrants head-on. When some ISPs throttled Apple Facetime, for example, others sprang up advertising the specific fact that they did not.
Further, FCC chair Ajit Prai is against throttling. The new regulations would require ISPs to be transparent about these practices, and would move enforcement and punishment to the FTC in what he called after-the-fact regulation. Some people are jumping on this “after the fact” bit, but think about it: what is our legal system predicated on? It’s all supposed to be after-the-fact.
Less Government Please
As those who follow this space may know, we’re usually in favour of anything that reduces regulation and government interference, especially when it comes to the internet.
We generally don’t like people or companies being told what they can or cannot do with their own property and businesses.
I believe consumers respond to unfair treatment with their wallets. When businesses overreach I smell opportunity and disruption. When governments overreach it feels repressive and authoritarian.
It all comes down to choice, do we have that? As businesses, as people? Or does the government do it all for us?
- Jeffrey Tucker: Good-bye Net Neutrality, Hello Competition
- Micheal Geist: Canada and US go different ways on Net Neutrality
- Net Neutrality coverage on Techdirt.
- NPR: FCC Chief Makes Case For Tackling Net Neutrality Violations ‘After The Fact’
- Reason: FCC Head Ajit Pai: Killing Net Neutrality Will Set the Internet Free
 Say what you want about RT and Sputnik, they frequently cover stories which the western mainstream media will simply not touch, such as the US involvement and support for Saudi Arabia in their near-genocidal war against Yemen. Sputnik was also instrumental in the takedown of Washington Post and New York Time’s near criminally libellous and nonsensical “Propornot” story. Wapo had to later walk back their stories as being unsubstantiated. In that event, Charles Hugh Smith, an author and socio-political commentator was labeled by Propornot as a “Russian Disinfo” agent. I have a small audiobook business that publishes audio versions two of Charles Hugh Smith’s books.