In 2016 we won one battle in the fight for the Open Internet – but several others are well underway and we expect Team Internet will have to mobilize once again to protect our gains and prevent further efforts to undermine network neutrality.
Almost two years ago, thanks in large part to a massive mobilization of Internet users, the Federal Communications Commission (FCC) finally issued an Open Internet Order to protect net neutrality. While far from perfect, the new Order was on strong legal footing, with some limits in place to help prevent FCC overreach. Before the year was out, however, the battle for the Internet moved to the courts, as broadband providers tried to get a judge to derail the new rules. After months of wrangling, in June 2016 a federal appeals court instead approved the Order – a crucial win for Team Internet.
With that done, the FCC has focused on establishing privacy rules for users, including giving users new rights and requiring providers to seek user permission before using our private information. So while a handful of victory laps were taken this year for network neutrality, new threats are emerging and 2017 promises to be struggle to preserve the gains millions of Internet users fought so hard to win.
Moving from the Courts to the Legislature
As noted, as of June 14, 2016, when the federal appeals court overwhelmingly sided with Internet users, it is now settled law that companies that provide broadband service are “common carriers” and therefore subject to the nondiscrimination laws that exist under Title II of the Communications Act. This decision settled what has been a multi-year fight over the role of the FCC in consumer protection and oversight of the broadband industry. But that has simply shifted the struggle to Congress. In particular, members of Congress attempted to remove funding from the FCC as a means to block the Open Internet rule as well as other threats to lawfully connecting devices to the network.
It seems unlikely that the next Congress will continue the series of attacks on the FCC as they will want to allow the new incoming leadership an opportunity to lead the agency. While we do not know who will be the new Chair of the FCC, we suspect the incoming Trump Administration will want to appoint Commissioners that have the intent to reverse course on an open Internet despite support from both Republican and Democratic FCC Chairmen from years past.
One of the unfinished parts of the 2015 Open Internet Order was how the changed legal status of broadband providers would impact their obligations to protect consumer privacy. After all, it was already well established law that the telephone company was not allowed to know who you talked to, listen in on your call, or monitor who is contacting you unless it was for the purposes of providing you the service. How would that prohibition apply to broadband companies?
On November 2, after soliciting extensive public comment, the FCC released new rules to answer that question. Those rules explain what network practices are acceptable and under what circumstances broadband providers must ask for consumers' permission to use their information. They also give breathing room for "pay for privacy" business models. The rules are a net positive for Internet users. We can now look forward to new privacy protections for online activities, and new powers to grant or deny providers permission to use our information.
New Threats Emerge in the Form of Zero Rating
Despite these big wins, Internet service providers have been working all year to find ways to undermine net neutrality and regain their positions as arbiters of how traffic is treated on their networks—particularly via zero rating. Back in January, EFF showed how T-Mobile's Binge On program, which claimed to "optimize" streaming video, was nothing more than a system designed to throttle video bandwidth. When EFF asked T-Mobile's CEO to come clean about the program, his infamous response was "Who the $%&* are you anyway EFF, why are you stirring up so much trouble, and who pays you?"—which of course prompted many of our supporters to educate the sadly uninformed telco executive.
T-Mobile wasn't the only ISP to try to undermine net neutrality via zero rating. AT&T and Verizon have also been major offenders, particularly when it comes to zero rating their own content. By doing so, ISPs are using their position as Internet gatekeepers to funnel customers to their own content, thereby distorting the open playing field the Internet typically provides. While the FCC has begun to take measures to rein in some of the most egregious practices, it's clear that zero rating will continue to be a major battlefield in the fight for net neutrality.
We Must Stand Firm in Our Continued Fight for Internet Freedom
As long as there are players (whether they be governments or major corporations) that stand to gain by changing the fundamental openness and neutrality of the Internet, the fight will always continue.
We are prepared to aggressively defend the Open Internet Order at the FCC and in Congress next year because the stakes are too great. Too many Americans have only one choice for high speed broadband and far too many lack access all together. While EFF has had a long history of wariness at FCC involvement in regulating broadband companies, the fact of the matter is the U.S. market is excessively concentrated and lacks real choice. Without some fundamental basic rules ensuring nondiscriminatory treatment of network traffic, we fear that a free and open Internet will come to an end.
So while we do not know what new arenas or new fronts the battle for a free and open Internet will take, we can promise that EFF will always be there fighting on behalf of the user community, whether it is in Congress, the FCC, or the courts.
This article is part of our Year In Review series. Read other articles about the fight for digital rights in 2016.