Efforts to protect net neutrality that involve government regulation have always faced one fundamental obstacle: the substantial danger that the regulators will cause more harm than good for the Internet. The worst case scenario would be that, in allowing the FCC to regulate the Internet, we open the door for big business, Hollywood and the indecency police to exert even more influence on the Net than they do now.

On Monday, Google and Verizon proposed a new legislative framework for net neutrality. Reaction to the proposal has been swift and, for the most part, highly critical. While we agree with many aspects of that criticism, we are interested in the framework's attempt to grapple with the Trojan Horse problem. The proposed solution: a narrow grant of power to the FCC to enforce neutrality within carefully specified parameters. While this solution is not without its own substantial dangers, we think it deserves to be considered further if Congress decides to legislate.

Unfortunately, the same document that proposed this intriguing idea also included some really terrible ideas. It carves out exemptions from neutrality requirements for so-called "unlawful" content, for wireless services, and for very vaguely-defined "additional online services." The definition of "reasonable network management" is also problematically vague. As many, many, many have already pointed out, these exemptions threaten to completely undermine the stated goal of neutrality.

Here's a more detailed breakdown of our initial thoughts:

Limited FCC Jurisdiction — Good:

Those who have followed EFF’s position on net neutrality will know that, while we strongly support neutrality in practice, we are opposed to open-ended grants of regulatory authority to the FCC. On that score, the Google/Verizon proposal takes a promising new approach. It would limit the FCC to case-by-case enforcement of consumer protection and nondiscrimination requirements and prohibit broad rulemaking. In essence, it tries to limit the FCC to the type of authority that the FTC has — the authority to investigate claims as they are made.

This limitation, if enforced, could help avoid many of the problems we’ve been concerned about, such as the possibility that a future FCC might decide to take on the role of “Internet indecency” police or, as a result of regulatory capture, might become an innovation gatekeeper, blocking new ideas by small innovators in order to protect the interests of big dinosaurs.

The proposal also rightly exempts software applications, content and services from FCC jurisdiction. Suggestions that the content layer should be directly regulated by the FCC were among the most wrong-headed in past debates about this issue.

The provision does suggests the use of “private non-governmental dispute resolution processes,” which is somewhat troubling — we’ve seen how such processes can be gamed by repeat players.

Standard-Setting Bodies — Interesting:

The proposal also has an interesting suggestion for handling concerns about politicization of the FCC processes and the need for a deep technological understanding to make good decisions in this area: standard-setting bodies. It suggests that “reasonable network management” should be “consistent with the technical requirements, standards or best practices adopted by an independent, widely recognized Internet community governance initiative or standard-setting organization.”

This idea is intriguing, but there are some reasons to be wary. Standard-setting bodies can sometimes do a better job of recognizing and resisting bad technological arguments than political or agency bodies. And technical bodies successfully developed many of the standards that make the Internet great. But as we well know at EFF, standards bodies are not immune to bad ideas. We spent years fighting anti-consumer efforts in various standard-setting fora around DRM and trying to correct some bad standards that had been set in the area of evoting. In those instances, we found that allegedly "independent" standards bodies were often closed to the voices of consumers and small innovators, wrapped in secrecy, and lacking basic mechanisms needed to ensure accountability. If standards bodies are to be introduced as part of a network neutrality oversight scheme, that language needs to guarantee that the processes are completely transparent and representative of the interests of user and independent developer communities.

Reasonable Network management, Additional Online Services — Troubling:

The definition of “reasonable network management” needs to be clarified and refined. While we think the way that standard-setting organizations are included in the definition is interesting and potentially constructive, the language on what makes some network management ”reasonable” is extremely unclear. For EFF, the first test for a network neutrality proposal is this: would it have clearly prevented Comcast from interfering with BitTorrent? In the Google/Verizon proposal, because of ambiguous exceptions like the one that allows an ISP “otherwise to manage the daily operation of its network“, we can't be sure that that's true.

The cutout for “additional online services” is also very disturbing. Many have pointed out that it could be the exception that swallows the nondiscrimination rule. After all, much of the innovation we expect to occur in the future will involve services “distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services." If discrimination is allowed for all such things, then there could easily be little left on the “neutral” part of the Internet in a few years. There may be some services that need traffic prioritization, such as urgent medical services, but the approach in the proposal creates no real limits on what could be allowed as an “additional online service.” It would be much better if space for these services was addressed through waivers or other processes that put the burden on the company suggesting such services to prove that they are needed. And such processes must be fully transparent — not just consumers but the FCC must be in a position to know how these services work and what impact they are having. They must also be open to real debate and opposition.

“Lawful” Content and Wireless Exclusions — Fail:

The proposal essentially ignores some of the key problems that EFF and others have had with previous network neutrality proposals. These loopholes could undermine the goals of neutrality, or lead to unanticipated and regrettable outcomes.

  1. It still limits nondiscrimination to “lawful” content without defining the term or giving any indication of who decides what is “lawful,” opening the door to entertainment industry and law enforcement efforts that could hinder free speech and innovation Last year, the big media companies took advantage of similar language to push for a “copyright loophole” to net neutrality that would have allowed them to pressure ISPs to block, interfere with, or otherwise discriminate against perfectly legal activities in the course of implementing online copyright enforcement measures and a similar loophole existed for law enforcement. So long as your ISP claimed that it was trying to prevent copyright infringement or helping law enforcement, it could be exempted from the net neutrality principles. This was the focus of EFF's comments to the FCC in January, 2010 and our Real Net Neutrality campaign.
  2. As many others have noted, the exclusion of wireless from all but the transparency requirements is a dreadful idea. Neutrality should be the rule for all services, and a distinction between wired and wireless not only defies reason, it also abandons the portion of the Internet that is currently most lacking in openness and neutrality. Users are increasingly demanding the ability to do many, if not all, of the same things in a wireless environment as they do in a wired one. Regardless of what regulation may look like or whether there is any regulation at all, there shouldn’t be a distinction between the neutrality available on wired services and that available on wireless services.

We share these initial thoughts in order to surface some details that may be lost in the controversy sparked by this proposal. Others are weighing in with valuable comments as well, and we are paying close attention to their views. We urge policymakers to do the same.

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