Censored 2012 (56 page)
Authors: Mickey Huff
The Impending Demise of Net Neutrality
by Elliot D. Cohen, PhD
If a computer virus with the capacity to disrupt the free flow of information on the internet were about to be unleashed by a gang of hackers whose aim was to control and monopolize the internet, then we would be shocked to find out that the federal government was not only unwilling to stop the culprits from accomplishing their goal, but was actually making it easier for them to succeed. And, as if this were not enough, we would be mortified to learn that the mainstream media knew all along about the attack and the complicity of government yet nevertheless chose not to report it.
Indeed, because the internet is so vital to our culture, the impending demise of its free architecture would be the story of the century. Yet something not unlike such a government and media-enabled plan is currently happening and, unless the story gets the attention it deserves, there is, predictably, little chance that the free internet will survive.
What I am speaking of is the current movement afoot aiming at dissolving net neutrality. The real “hackers” in this case are the giant internet service providers (ISPs)—notably the telecommunications companies Comcast, Verizon, and AT&T—with cooperation from the federal government; and at least part of the reason why the media is mum is because it is either owned by these giant ISPs, as in the case of Comcast, which recently acquired NBC Universal, or it has business relations including joint ventures with these behemoth companies.
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Net neutrality—the more common term for “network neutrality”—is the principle according to which all bits are treated equally and therefore everyone has an equal voice on the internet, whether you are a
giant corporation, a small website operator, or anything in between. This means that no ISP can screen, block, or filter any lawful content, or discriminate against any competing content or service provider. Thus, just because a company such as Comcast may own the means by which information is transmitted (for example, the cables or wireless network), it does not have the right to interfere with the transmission of any lawful content over this conduit.
For the consumer, this means that everyone should be able to access the same lawful information and have the same quality internet experience, without being blocked or otherwise prevented from gaining access to this information.
The essence of net neutrality is therefore freedom of information: everyone is entitled to the same information and no telecommunication company should have the right to restrict access to it. It is because of net neutrality that the internet is a free and democratic forum of ideas. While other mass media involve communication from the few to the many (such as a cable or broadcast television network), the internet involves communication from the many to the many. It has therefore, by design, created a forum by which each of us can speak our minds and be heard by millions of other people, who in turn can speak their minds and be similarly received. At no other time in history has humankind laid access to such a democratic media for the sharing of information and diverse points of view. Unfortunately, an ongoing, well-organized attack against net neutrality has already made substantial headway toward ending this free, open, and democratic forum.
THE BRAND X DECISION
A major blow to net neutrality came in 2005 with the Supreme Court decision
National Cable & Telecommunications Association v. Brand X Internet Services
.
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Prior to this decision, the internet fell under the common law doctrine known as common carriage.
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Common carriage meant that, like a telephone line, anyone could communicate freely on it without being told what content could or could not be transmitted. Moreover, whereas anyone could communicate over the phone lines and receive the same quality reception as anyone else, the giant
ISPs like Comcast could also not discriminate against other ISPs or content providers.
The Brand X decision changed all this by turning this public information highway into private property. According to Brand X, the internet was an information service more like a cable television network and less like a telecommunication service such as a telephone system. Moreover, because the 1996 Telecommunications Act applies common carriage to telecommunication services but not to information services, the Court effectively gave the giant ISPs permission to control the flow of information and traffic down the high-speed internet cables. Moreover, the Court also gave the green light for digital subscriber line (DSL) ISP providers such as AT&T to follow suit. Accordingly, three weeks after the Brand X decision, the George W. Bush administration’s Federal Communication Commission (FCC) ruled that common carriage would no longer apply to DSL internet service over the telephone lines.
In reality, though, the internet was and still is a telecommunication service because internet exchanges always involve two-way interactions, whether the activity is communicating with and downloading content from a website or exchanging e-mail messages. This is and always was more like a telephone conversation than a one-way transmission such as that performed by a TV cable station operator. Like a telephone conversation, each end user determines the data that is to be transported over a line.
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In fact, in the 1999 case
AT&T v. City of Portland
, the US Ninth Circuit Court of Appeals made it clear that broadband and DSL internet service are subject to common carriage pursuant to the 1996 Telecommunication Act. It stated:
Under the Communications Act, this principle of telecommunications common carriage governs cable broadband as it does other means of Internet transmission such as telephone service and DSL, “regardless of the facilities used.” … The Internet’s protocols themselves manifest a related principle called “end-to-end”: control lies at the ends of the network where the users are, leaving a simple network that is neutral with respect to the data it transmits, like any common carrier. On this rule of the Internet, the codes of the legislator and the programmer agree.
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There could therefore be no reasonable construction of the Act that could have eviscerated internet common carriage. Instead, the motivation for the change in status came from the desire of the giant ISPs to control the internet and thereby reap greater profits.
As soon as these companies received the green light from the Supreme Court, they began the next step in their attempt to take control of the internet: to take concrete steps to dismantle net neutrality. The giant ISPs began to lobby Congress and the FCC to make further changes to the law permitting them to turn the broadband internet pipes into a two-lane highway consisting of a fast lane and a slow lane. The fast lane would provide better bandwidth (quicker connectivity) to website operators who could afford to pay for it. Accordingly, content providers who could not afford the rates would be relegated to the slow lane, which would mean poorer bandwidth and thus a diminished presence on the net.
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Within this proposal was the germ of a cybercast system wherein the voices of the wealthy would be dominant over those of the less well-to-do. Thus, mainstream media companies such as News Corp (Fox), Disney (ABC), Time Warner (CNN), Viacom (CBS), and Comcast itself (NBC) would dominate the internet as they now dominate broadcast and cable television. In contrast, independent media organizations, such as those from which most of the Project Censored stories are gleaned, would no longer be able to afford to maintain an audible voice on the internet.
Unfortunately, this cybercast system is steadily becoming a reality as a handful of giant ISPs continue to make further legal headway in eviscerating net neutrality. Because their mainstream media accomplices stand to increase their bottom lines exponentially through such a system of information control, it is not surprising that these profit-oriented behemoths have kept their media mouths closed about this burgeoning assault on internet freedom and equality.
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On December 21, 2010, the Obama FCC, under Chairman Julius Genachowski, passed a set of “net neutrality” rules, which many activists had hoped would halt, at least temporarily, the steady dismantling of net neutrality by the giant ISPs. Unfortunately, these rules turned out to be paper tigers, and, in the end, Genachoski capitulated to these companies.
The rules that were approved by the FCC embraced transparency, no blocking, and no unreasonable discrimination consistent with reasonable network management. These rules stipulated:
Transparency: Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services.
No Blocking: Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and
No Unreasonable Discrimination: Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.
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While the FCC maintained that it would not be unreasonable discrimination to charge consumers based on amount of usage, it did include a general proscription against a two-tiered, “pay-for-priority” arrangement:
No central authority, public or private, should have the power to pick winners and losers on the Internet; that’s the role of the commercial market and the marketplace of ideas. So we are adopting a ban on unreasonable discrimination. And we are making clear that we are not approving so-called “pay for
priority” arrangements involving fast lanes for some companies but not for others. The order states that as a general rule such arrangements won’t satisfy the no-unreasonable-discrimination standard—because it simply isn’t consistent with an open Internet for broadband providers to skew the marketplace by favoring one idea or application or service over another by selectively prioritizing Internet traffic.
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Here was a clear enough FCC mandate against the two-tiered system embraced by the major ISPs; the FCC was also clear about the discriminatory nature of such a system. So, the FCC stood its ground against corporate pressures, right? Wrong!
The devil is often in the details, and there was at least one important detail left out of the FCC’s equation: legal enforceability of the new rules. The obvious way to have given teeth to the new rules would have been to reinstate common carriage by suitably reinterpreting the ruling made under the Bush FCC. The Obama FCC had the authority, but there was intense pressure from the giant ISPs not to do so.
In fact, in April 2010, a DC federal appellate court ruled in favor of Comcast, which had been slowing traffic to BitTorrent, a popular file sharing website.
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This decision established a dangerous precedent against preservation of net neutrality and Genachowski admitted it at the time. In response to the BitTorrent decision, Genachowski announced that the FCC would be returning the broadband internet to its former common carrier status under Title II of the 1996 Telecommunication Act. “The goal,” said Genachowski, “is to restore the broadly supported status quo consensus that existed prior to the court decision on the FCC’s role with respect to broadband internet service.”
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However, Genachowski retreated from his announced goal with the passage of the 2010 Net Neutrality rules. Instead of reinstating Title II common carriage status to broadband internet service, the new rules were based on Section 706 of the 1996 Telecommunications Act, which limply instructs the FCC to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” Obviously, there was a huge difference between “encouraging” and “requiring” and only a return to common carriage status could have secured the latter authority.
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Thus, it was not surprising that, on January 20, 2011, days after the passage of the new FCC net neutrality rules, Verizon took the FCC to court, arguing that its new rules overstep the Commission’s authority,
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which now appeared to be true thanks to its refusal to reinstate common carriage status to broadband cable and DSL service. The Verizon case was filed in the same federal district court that had heard the BitTorrent case, but because the ink had barely dried (the FCC had not yet published the new rules in the Federal Registry), the court declined to hear the case.
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Inevitably, we have not heard the last of Verizon and the other big telecoms in their attempt to officially nullify the new net neutrality rules in court.
The same feat has also already been attempted legislatively when the US House of Representatives in April 2011 voted 240 to 179 to reject the new FCC rules. A similar bill was also introduced in the Senate with thirty-nine cosponsors,
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so net neutrality now continues to hang by a virtual thread.
The implications of the impending demise of net neutrality are daunting. In fact, it may well mark the end of freedom and democracy in the free world. This is not an overstatement. It is a realistic danger.
The legal climate of net neutrality in the US needs to be viewed in the larger legislative context of federal government and its interest in cyber-control. Pursuant to the 2008 Foreign Intelligence Surveillance (FISA) Amendments Act, telecom companies such as Comcast and AT&T are mandated to help government conduct warrantless, mass surveillance sweeps of all electronic traffic passing through their networks. In fact, presently, all e-mail messages, telephone conversations, and internet searches of all American citizens are being copied, stored, and analyzed by federal agencies with the assistance of these companies, allegedly for purposes of fighting the “war on terror.” In return, these companies have been given full retroactive and prospective immunity from criminal investigations and civil lawsuits filed by customers for abridgments of their Fourth Amendment rights.
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