DC circuit court in process of deciding net neutrality

The Internet

The Internet

Back in 2010, Congress passed the the Open Internet Order, which authorizes the FCC to prevent internet service providers from blocking particular applications—such as file sharing or telephony—and from charging content providers to make their sites load faster than others. This broad set of rules is called net neutrality, and Verizon hates it. On Monday, lawyers for Verizon and the FCC delivered oral arguments before the US Court of Appeals for the District of Columbia Circuit in an attempt to overturn/protect the Open Internet Order, respectively. You can read a broad summary of their positions here. Probably you should read it now, because by the end of the week Ars Technica could load really slowly as your ISP encourages you to get your news from Yahoo.

As the proprietor of a snarky blog no one reads, net neutrality is an important issue to me. I like the internet because it makes publishing really, really easy. By reducing the cost of printing and distribution to near zero, the internet makes text a very light and level medium—light in that it can be easily made and sent around the world, and level in that nearly all producers have access to the same distribution network.

I like text. In terms of being read, there has probably never been a better time to be an author.* In different ways but to similar degrees, musicScreen Shot 2013-11-14 at 10.11.12 AM and video have been similarly enabled by the contemporary internet. Bands and directors can make songs and shows more easily with digital tools, and they can release them to a global audience without the approval of labels, studios and other industry gatekeepers. The contemporary internet is the dream of punk rock: that we would all seize the means of production (and distribution) and make the culture we want, instead of being stuck with the one sold to us.

We all failed to consider the importance of advertising and how to actually tell people that we had made stuff for them to read/watch/listen to, but that’s on us. My point is that the existing “neutral” internet is an unprecedented development in cultural production, to say nothing of economic and technological growth, and large ISPs have the logistical power to wreck it. As Comcast did with BitTorrent in the last decade, they can simply shut down those uses of the internet they do not like. Worse, they can do so not on the basis of what they like or dislike, but rather on the basis of who pays them a protection fee.

For the consumer, this situation is not functionally different from government censorship. The internet is the primary communications medium of our age. If the people who own the pipes shut down The Onion because they cut a deal with Yahoo!’s Sketchy, the end result is the same as if the feds shut down The Onion because they made fun of the president. The main difference is that we consider it morally wrong for the government to restrict public communication for political reasons, but we’re not so sure about businesses doing it for money.

Verizon’s position is that net neutrality violates their First Amendment right to free speech, as well as  Fifth Amendment protections of their property. From their filing:

Broadband networks are the modern day microphone by which their owners engage in First Amendment speech. The FCC thus must identify an actual problem and narrowly tailor its solution to solve that problem. The FCC’s ‘prophylactic’ rules cannot pass that test. The Fifth Amendment likewise protects broadband network owners from government compulsion to turn over their private property for use by others without compensation, especially in light of their multi-billion-dollar investment-backed expectations.

The Fifth Amendment argument is tenuous at best. Demanding that Verizon provide subscribers with the access to the whole internet at the same speeds regardless of content hardly forces them to turn over their property to others without just compensation, since the subscribers pay. The sort of collusion among large corporations that would reduce load times for Google and increase them for AskJeeves seems more closely related to antitrust law than freedom of speech.

More troubling, though, is the claim that broadband networks are the “microphone by which their owners engage in First Amendment speech.” As the FCC has pointed out, Verizon doesn’t produce content; it serves it. Broadband networks as presently operated by ISPs are conduits for the speech of others. It’s ironic that Verizon would claim privileging some speech at the expense of others is an activity protected by the First Amendment. The business of communications is not communication itself.

Sterner minds than our own are considering these questions as we speak. Probably they will find in favor of the FCC, and the internet as we know it will continue to exist. The only way that wouldn’t happen is if a high-ranking federal court sides with large corporations against the public interest in the name of free speech. And how often has that happened lately?

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  1. I like that you link this to government censorship, because I couldn’t help feeling like “this is a real important policy point” whereas that NSA stuff just looks and smells like it but has many fewer real policy consequences.

    I wonder how much utility speed throttling has when the near future will offer fiber optic speeds which outstrip the human. Also I wonder how much influence consumer choice would exert against companies that use throttling. Maybe in a competitive ISP market the worse-case outcome in this case is mooted because no one would dare throttle.


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