January 14, 2010 | By Fred von Lohmann

EFF Weighs in on Proposed FCC Net Neutrality Rules

Today marks the deadline for the first round of comments to the FCC regarding its proposed "net neutrality" regulations. Here's a quick summary of what EFF had to say in its comments to the Commission:

While the question of how to best protect the openness of the Internet is a timely and important one, EFF believes the FCC currently lacks the statutory authority to issue the broad regulations on ISPs that it has proposed. The "ancillary jurisdiction" that the FCC has asserted as a basis for the regulations is legally insufficient and would, if accepted, give the FCC potentially unbounded power to regulate the Internet however it likes. In other words, if the FCC wants to issue net neutrality regulations, it needs to wait until Congress passes a net neutrality bill.

If the Commission nevertheless chooses to forge ahead with the regulations proposed, EFF urges it to make the following revisions designed to protect the free speech and privacy interests of Internet users, and to foster competition and innovation.

First, in order to protect the free speech interests of Internet users, the Commission should reject copyright enforcement as "reasonable network management." Copyright enforcement has nothing to do with the technical business of network management. Moreover, the proposed regulations, by their terms, already exclude "unlawful content," making any exception for copyright enforcement unnecessary. Should ISPs want to deploy copyright enforcement technologies that inflict collateral damage on lawful content, those ISPs should be required to submit any such technologies to the Commission for pre-deployment review as part of a transparent public waiver process.

Second, in order to protect the privacy interests of Internet users, the Commission should clarify that the law enforcement exception applies only to an ISP’s legal obligations to address the needs of law enforcement. Because the six proposed neutrality principles do not, by their terms, apply to unlawful content or activities, a general exception for law enforcement is unnecessary. Should ISPs want to voluntarily deploy technologies that would block lawful activity in the course of addressing the needs of law enforcement, those ISPs should be required to submit any such technologies to the Commission for pre-deployment review as part of a transparent, public waiver process.

Third, in order to protect the privacy interests of Internet users, the Commission should make it clear that its proposed regulations do not reach noncommercial providers of broadband Internet access service, whether they are individuals who operate open Wi-Fi networks at home, or public-minded entities that provide free Internet access in their local communities. The Commission should avoid the specter of federal regulation looming over noncommercial, public-spirited network providers. Federal regulation of these initiatives is not necessary to vindicate the openness, competition, innovation, and free expression goals of this proceeding.

Fourth, in order to foster competition and innovation, EFF urges the Commission to make it clear that the proposed "transparency" principle is not subject to an exception for "reasonable network management." As exemplified by the Commission’s ruling against Comcast regarding its discriminatory treatment of BitTorrent traffic, it is precisely when ISPs invoke the need for "reasonable network management" that the principle of transparency becomes most vital. Only if ISPs are required to adequately disclose their network management practices will consumers, competitors, innovators, and the Commission be able to evaluate whether the practices are, in fact, "reasonable."

Fifth, in order to foster competition and innovation, the Commission should require wireless ISPs to allow "tethering" as a form of device interconnection. This requirement is a necessary corollary to the principle that consumers should be entitled to use any lawful device or application that does not harm the network. Tethering facilitates interoperability, competition, and openness. Furthermore, tethering blocks some troubling practices that are already emerging in the marketplace.

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