April 13, 2010

Net Neutrality Up to Us

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The Chinese government has recently faced considerable criticism of its internet censorship policies. Indeed, when Google decided to move its Chinese search engines to circumvent those laws, the company was universally lauded. Funny, then, that less than a month after Google’s move, a U.S. court has opened the possibility for domestic companies to censor content in a similar fashion.

The issue at stake is net neutrality, a somewhat controversial concept that’s recently worked its way back onto the front page. For those unfamiliar with the term, the idea of net neutrality is fairly simple. Under “net neutral” guidelines, Internet Service Providers (ISPs) cannot discriminate between servers; they must simply act as a conduit. Thus, if your internet provider is, for instance, AT&T, they must provide you the same access to, say, catshumpinggorillas.com (not a real website, don’t bother) as they would with cnn.com. Essentially, net neutrality aims to ensure an equal footing in the virtual marketplace of ideas.

Proponents of net neutrality look to maintain the boom of user generated content that has created web 2.0 — a world of blogs, facebook, twitter –– and ensure that such content remains equally accessible to subscribers of all ISPs. On the other hand, ISPs maintain that they should be able to manage their infrastructure as they see fit, including limiting access to certain servers, or charging some servers above and beyond the standard rates for a connection.

Despite the protests of many large telecommunication companies, most still generally operated under net neutral principles. This all changed, though, with the decision of Comcast v. FCC, a case that touched upon this very issue.

In late 2007, an independent study confirmed many subscribers’ suspicions that Comcast was blocking access to Bittorrent, a popular peer-to-peer file sharing system. Subsequently, the media reform group Free Press, in conjunction with other reform groups, appealed to the FCC to intervene; as a result, the FCC issued Comcast a relatively minor slap on the wrist for violating net neutrality regulations. Comcast sued the FCC for penalizing them, and the case landed in the U.S. Court of Appeals for the District of Columbia.

On April 6, the court ruled in Comcast’s favor. In the majority opinion, Circuit Judge David Tatel wrote that the FCC didn’t have the legal authority to enforce net neutrality. In doing so, they had too broadly interpreted their mandate.

You might think that as a proponent of net neutrality, I oppose the decision. While I certainly oppose the short-term consequences, I also believe in the rule of law: the fact of the matter is that the FCC simply didn’t have the legal authority to enforce net neutrality. The case didn’t concern the legal merits of net neutrality; rather, the central issue was whether or not the FCC had overstepped its bounds by requiring ISPs to abide by their standards.

Because the case focused on legal authority, many analysts agree an appeal is unlikely. Appeals aside, there are two other methods by which they can hope to regain authority over broadband communication. They can either ask Congress for more explicit legislation granting said authority, or, more likely, they can simply reclassify broadband under telecommunications services, which are subject to greater amounts of scrutiny. The latter would certainly be an ironic twist for Comcast, who would have essentially cut off their nose to spite their face.

With that it mind, it is highly unlikely that the outcome of Comcast v. FCC will kill net neutrality. Although it may take time for the FCC to regain the legal authority to enforce such measures, even Comcast issued a statement saying that they “[remain] committed to the FCC’s existing open Internet principles, and … will continue to work constructively with this FCC as it determines how best to increase broadband adoption and preserve an open and vibrant Internet.” I’d take that statement with a grain of salt, especially in light of their prior action, but at the very least it indicates a public willingness to reach some sort of mutual understanding.

Any understanding reached will require resolution of the tension between corporate and consumer needs. When Comcast blocked access to Bittorrent, they justified their action by arguing that Bittorrent users, a minority of their subscribers, were using a disproportionate amount of bandwidth, clogging the system for other users. Granting ISPs the ability to discriminate traffic based on this standard seems reasonable, but unfortunately, the issue is never that simple. If given the authority to do so, it’s easy to envision how ISPs could simply block content they disagree with, or unfairly charge other servers under the guise of bandwidth usage.

As the FCC looks to re-evaluate how to regulate internet service providers, they must ensure that ISPs, if able to discriminate traffic, do so in a manner that is transparent and public. Companies should be required to offer clear, compelling reasons as to why traffic to and from a certain server should be limited. They should not be able to block content, nor should they be able to base their decisions on content alone. If download/upload speeds are slowed for any reason, companies should have to fully disclose the nature of the impediment to its users. Opponents of net neutrality argue that market forces will prevent companies from abusing their power under deregulation, but this can only occur if consumers are informed as to what their options are.

Comcast v. FCC has the potential to open the floodgates for corporate abuse of the internet; it is now up to the FCC, and perhaps more importantly, us, to insure that these abuses don’t occur.

David Murdter is a sophomore in the College of Arts and Sciences. He may be reached at [email protected] Murphy’s Lawyer appears alternate Tuesdays this semester.

Original Author: David Murdter