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Today’s Net Neutrality Order is a Win, with a Few Blemishes

March 12, 2015

Today, the FCC published its new order [PDF] on net neutrality.  As promised, the rules start by putting net neutrality on the right legal footing, which means they have a much stronger chance of surviving the inevitable legal challenge.  This is the culmination of years of work by public interest advocates and a massive outpouring of public support over the past year. Make no mistake, this is a win for Team Internet!

Now, what about the rules themselves?  We’re still reviewing, but there’s much to appreciate, including bright line rules against blocking, throttling, and paid prioritization of Internet traffic. For example, an ISP cannot degrade customers’ access to services that compete with its own offerings and cannot charge tolls to privilege traffic from one web service over others.

We applaud the FCC for listening to Internet users and acting to protect the open Internet from unfair discrimination by mobile and wireline Internet service providers (ISPs). The FCC also listened to our advice to forbear from applying numerous aspects of its authority, aspects that are not necessary to address the critical but narrow problems posed by ISP gatekeepers.

For example, the FCC will not set prices for Internet service and the order includes exemptions for small ISPs. Today’s order creates no new taxes or fees, although there is a possibility those will emerge following subsequent hearings and rulemaking regarding disabilities access or a universal service fund to expand broadband coverage. With respect to privacy, the FCC is not forbearing from protecting consumer privacy, but wisely will not import existing rules relating to phone service privacy to broadband providers. Instead, there will be a follow-on rulemaking, one that we will be watching closely.

The FCC generally adopted a positive approach, resting its new rules on the proper legal authority, creating some bright-line protections, and forbearing from most of the provisions that were unnecessary to protecting net neutrality. Nonetheless, we remain concerned about certain elements of the order.

Case-By-Case Evaluation of Reasonableness is Expensive and Leads to Uncertainty

When we first learned of the FCC’s intent to rely on a vague “general conduct rule” to evaluate provider conduct on a case-by-case basis, we pointed out the risks inherent in such an approach. The rule does lay out factors that will help guide the analysis of whether a given practice violates the rules, such as the effect on innovation, free expression, and end-user control.  However, the rule could still lead to overreach, and will certainly lead to expensive litigation. Indeed, today’s order punts many difficult questions to the general conduct rule, which applies whenever conduct doesn’t fall into one of the three categories of blocking, throttling, or paid prioritization, and also applies to all disputes relating to interconnection (ISP deals with other Internet infrastructure companies). That means important net neutrality questions will be evaluated on a case-by-case basis. The expense and expertise to raise and respond to issues on that basis could tilt the process in favor of big and established players, like major ISPs and content providers.

ISPs Should Not Be Allowed to Discriminate Against Content They Deem “Unlawful” Without a Court Order

We have long opposed limitations on net neutrality that suggests ISPs can hinder traffic or applications they deem unlawful, or use deep packet inspection to monitor users’ Internet traffic. Unfortunately, the FCC has maintained the “lawful content” limitation, and gone farther to state that it does not intend “to prohibit or discourage voluntary practices undertaken to address or mitigate the occurrence of copyright infringement.”

The danger of this limitation has already been demonstrated. In 2007, when EFF discovered that Comcast was throttling BitTorrent traffic, Comcast could have argued that it was combating copyright infringement. Of course, BitTorrent was also used to transmit public domain materials such as the Bible, licensed materials such as academic literature and free software, and non-copyrightable data, to name just a few legitimate uses. Under today’s rules, this would arguably not be considered a violation of the blanket prohibition on throttling. A user would have to discover and challenge this practice and bring it before the FCC for a case-by-case determination of its reasonableness. This doesn't make matters any worse than they were before, but it is a missed opportunity to improve on the status quo.

The FCC has also failed to give proper consideration to the invasiveness of deep packet inspection, used by ISPs to read a user’s Internet traffic. The “lawful content” limitation may give legal cover to this privacy-violating practice. In response, the Commission simply suggests that users protect their own privacy using encryption, virtual private networks, and Tor. While it’s a very good idea for users to protect themselves with such tools, that shouldn’t be their only protection against the very companies they are forced to trust in order to gain access to the Internet – particularly when ISPs like Verizon have gone to extreme measures to circumvent users’ privacy controls. Leaving users to fend for themselves does not bode well for the FCC’s future proceedings on privacy rules.

What About Zero Rating?

“Zero Rating” is when an ISP does not consider traffic to a certain website in calculating a user’s data usage, usually with respect to a data cap. For example, T-Mobile zero-rates certain music services and Facebook and Wikipedia have a variety of deals around the world creating zero-rated access to their services. Zero rating presents many of the same harms as paid prioritization, and also presents unique harms to competition when low-income users are effectively only able to access the websites of commercial Internet giants and come to perceive those walled gardens as the entire Internet. We recognize the value of providing low-income users with access to knowledge and the ability to interconnect, but these objectives are better achieved by promoting competition and removing access barriers to neutral Internet access.

Today’s order does not consider zero rating inherently improper, but proposes to evaluate such arrangements on a case-by-case basis. That has some appeal, as it allows the FCC to take into account the potential public benefits of a given program.  But the practice over-all poses significant risks to the future of the Internet, and we’d have preferred a stronger set of parameters.

Overall, today’s order was a great step for net neutrality. It was unthinkable a year ago that we would get this far, and the opponents of net neutrality are now clearly on the defensive. The rules will likely withstand the inevitable court challenges, and their bright-line prohibitions on blocking, throttling, and paid prioritization will go a long way towards protecting Internet users. There is still a risk of overreach and uncertainty, however, which means Team Internet must stay vigilant and engaged. And we will.

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