Mason Hayes & Curran Technology Law Blog
It is notoriously difficult to spot the next big civil rights issue. By the time we realise that rights are breached, it’s usually the case that quite a bit of harm has already been done. But perhaps with net neutrality, things might be different. That, at least, is the aim of the many net neutrality activists pushing for robust legislative measures across the globe. Of late, the US debate around net neutrality has become increasingly heated, with some commentators already mourning its death.
But first, what exactly is net neutrality? The term was coined by Columbia law professor Tim Wu in 2003 and is the principle that internet service providers (ISPs) should treat all data on the Internet equally. This means that they should not be permitted to discriminate between, or charge different prices to, different content providers.
Those in favour of net neutrality believe that strict rules are necessary to prevent a situation where ISPs begin to build a layered internet, charging certain clients more and more for an internet “fast lane” for their content, while gradually reducing the service for those who cannot pay a premium. Supporters of net neutrality believe that the process of building a tiered internet is already under way, or very soon will be. It should be noted that the phrase “net neutrality” is, somewhat ironically, not itself neutral. It was devised and popularised by those in favour of it, and some argue that it is more of a campaign slogan than a description.
For some time, it looked like net neutrality might take hold in the US. In 2010, the Federal Communications Commission (FCC) issued the "Open Internet Order". This consisted of a set of rules that required ISPs to have transparent network management practices, not to block lawful content, and not to unreasonably discriminate in transmitting lawful network traffic. The Order was regarded as a significant accomplishment in the achievement of net neutrality. That is until it was rendered invalid by a court ruling in January 2014: Verizon Communications Inc. v. Federal Communications Commission 740 F.3d 623 (D.C. Cir. 2014).
The Verizon decision found that the FCC was not entitled to impose these rules on ISPs, because they were not classified as “common carriers.” The FCC had previously classified ISPs as "information services" rather than "telecommunications services,” meaning that they could not be regulated under communications laws, which deal only with “common carriers”. The term “common carrier” historically referred to a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport. A common carrier offers its services to the general public and usually operates under an authorisation provided by a regulatory body. As such, a common carrier has an inherently public role. While “telecommunications services” are classified as common carriers, “information services” are not. This distinction is at the core of the Verizon decision, and in a broader sense, is at the heart of the whole net neutrality debate. Is the internet a public utility, like a telecommunications service, that should be subject to robust regulation to prevent discrimination?
In the wake of the Verizon decision, the FCC has had to go back to the drawing board to find a way to advance the cause of net neutrality. Some commentators argued that the simplest way around Verizon would have been for the FCC to reclassify ISPs as “telecommunications services.” In April, the FCC brought out its new plan for net neutrality, and revealed that it had not gone down the reclassification route. Its new approach seems a lot like a compromise, and it makes some allowance for different internet speeds for different content. As such, the plan has drawn a mixed reaction. Critics claim that it represents the end of net neutrality, and that the measures are so hopelessly diluted as to essentially abandon the fight for an equal internet. Unsurprisingly, the FCC has defended the plan, saying that it will impose strict transparency requirements on ISPs and that enforcement actions will be in store for companies that fail to adhere to their promises.
Whoever is correct, it looks like net neutrality will stay at the top of the US political agenda for some time to come. Net neutrality is also a pressing issue on this side of the Atlantic. In an upcoming blog post, we will consider the European perspective on net neutrality and current legislative proposals in this area.
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