Be careful what you wish for: A return to ‘net neutrality’ is a concern for the entire internet

For the past decade, “net neutrality” has been the catchphrase for internet freedom. “Protect your right to access what you want and how you want it on the Internet,” declared the ACLU. Public Knowledge defined net neutrality as “the principle that individuals should be free to access all content and applications equally, regardless of the source.” The Obama White House’s net neutrality plan proclaims that “an entrepreneur’s fledgling company should have the same chance to succeed as established corporations.” 

Via Reuters.

But rereading the Federal
Communications Commission’s (FCC) 2015 Open Internet Order reveals that the
policy was not net neutrality for all players. The architects of the catch
phrase wished the “net” to be “neutral” only for internet service providers
(ISPs), the companies providing the network layer that connects consumers to
the internet, not edge content companies such as Google, Facebook, and Twitter that
keep consumers glued to the internet and their mobile devices.

Why just ISPs? Because edge
providers wanted a measure of control they didn’t possess over the speed and
latency of networks. Their mantra was no blocking, no throttling, and no paid
prioritization. They saw ISPs as their gatekeepers.

But recently, political theater
has turned to the edge providers. And for what? Blocking content, throttling
content, and the paid prioritization of one company’s content over another’s.

Testifying at an October Senate Commerce Committee hearing, Twitter CEO Jack Dorsey quickly learned how upset his company’s users and members of Congress became when Twitter blocked the New York Post’s story on Hunter Biden and did not allow the URL leading to the story to be active in a tweet. Twitter stated the policy the suppressed material supposedly violated was intended to try to “find the right balance between people’s privacy and the right of free expression.” Facebook also drew the ire of committee members for its move to suppress the distribution of the Hunter Biden story by “reducing” the story’s distribution to its users.

Facebook, Twitter, and Google
all had their reasons for blocking and throttling content in the heat of the
election battle. But the fact remains they chose to do exactly what net neutrality
advocates had feared the ISPs as “gatekeepers” might choose to do just a few
years ago.

Google has run into the same challenge with the desire to eliminate paid prioritization, with government officials raising the company’s use of its market position in search and advertising as a potential competition problem. Paid prioritization resulted in Google receiving a €1.49 billion fine from the European Commission in 2019, as well as a Department of Justice antitrust lawsuit related to its search engine dominance and advertising business. 

Amid all of this, the ISPs were the ones who did not block, throttle, or engage in paid prioritization.

With the advent of next
generation networks, specifically 5G technology, we will see a dramatic
increase in network capabilities and speed, with as close to zero latency as
we’ve seen to date for network service. This is an important next step in the
evolution of network architecture, especially as Americans are more dependent
than ever on internet access to work, educate, and communicate with each other.

Much of this innovation is due in part to the work of the current FCC and its focus on light-touch regulation — understanding that such policies are part of the equation to increase investment in networks and improve them for the innovations of the future — rather than erecting regulatory barriers. The internet and its services have been the saving grace for people everywhere during the COVID-19 pandemic. The irony is that while the internet success story during the pandemic has been made possible by investments in network infrastructure that improved speeds and addressed the latency concerns of 2015, there is somehow a drumbeat for “net neutrality” regulations to return.

Heading into a new administration, the US should value the progress of technology and innovation in recent years. For transformative digital innovation to continue, it will have to be enabled by good public policy. As the last few years have proven, the internet ecosystem is an information service — not a phone system — and should not be treated as one, like the proponents of the 2015 order had hoped. The internet is indisputably an information service, and we need to protect it. 

Lawyers will want to fight over definitions to pull the “net neutrality” discussion toward their clients’ wishes. I am hopeful that it has been proven that digital innovation flourishes when regulatory barriers are diminished, not erected, around technology. Increased regulation skews behavior toward limiting legal exposure, not enhancing technological innovation. Let’s keep moving forward.

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