The recent net neutrality decision by the Appeals Court in D.C. has sparked a fair amount of concern among people who believe the internet should remain the open platform it is today. For those that missed what it was all about, the court vacated the FCC’s Open Internet Order, arguing that since the legal justification for the policy was the agency’s authority over telecommunications companies, it couldn’t apply to broadband providers.
The Open Internet Order essentially mandated that the companies who own the lines that make up the backbone of the internet had to treat all data the same, regardless of type or origin. For instance, Comcast was forbidden from prioritizing data from Hulu (which it owns through NBC/Universal) over data from competing services such as Netflix.
The importance of net neutrality is threefold. Without it, companies who physically own the lines would have a nearly insurmountable advantage in the online marketplace, stifling competition and innovation. Also, corporate control over information would become even more absolute, with companies able to choke off data from sites that published undesirable content. Finally, it would make the lack of broadband access in rural and low-income areas even worse, reducing economic opportunity for people in those areas.
These three aspects of losing net neutrality would almost certainly have additional and wide-ranging unanticipated consequences, as entire industries built around the open internet find their business models instantly obsolete.
One thing that wouldn’t happen is the eradication of digital piracy, despite the fact that this goal is frequently used as an argument against the open internet. People have been stealing the entertainment and software industry’s food since the first 1’s and 0’s went flying across dial-up modems. Really, even before that, as there was a robust underground market for “cracked” computer games going back to the days of 5.25” floppy disks (the big black ones).
During the ’90s, I downloaded—I mean, I heard about a guy who downloaded—buckets of unauthorized content via AOL chat rooms, and when those closed down, I discovered IRC. Then came Napster, and when they shut that down, there was Kazaa, then Limewire, and now BitTorrent reigns supreme, with UseNet the choice of savvier pirates. By the time they figure out how to shut that down (for instance by gaining the legal ability to throttle that specific type of data transmission out of existence), people will have worked out other methods.
But, in the meantime, the legitimate internet could be hugely damaged by the loss of net neutrality, with real-world consequences for the economy and society at large.
Thankfully, despite the hyperbole that’s been thrown around regarding the decision, the net neutrality battle is far from over. In the decision, the appeals court didn’t say the FCC doesn’t have the authority to mandate an open internet. It simply stated that the legal justification for the current policy was unconstitutional, and a policy would have to be crafted that explicitly applied to broadband providers.
In other words, the FCC could release a new policy with the court decision in mind, protecting the open internet for the foreseeable future (or at least until the next president takes office). And given the fact that the Obama administration has been very much on the pro-net neutrality side of things, the chances of this outcome are actually somewhat favorable. I’m cautiously optimistic.
Even failing the release of a new policy, the case will likely move on to the Supreme Court, where the decision could be overturned, though hoping for an anti-corporate decision from the Roberts’ Court is probably setting oneself up for disappointment.
Finally, should the Supreme Court uphold the decision and the FCC throw in the towel, companies such as Google are already building competing infrastructure designed to utilize newer technologies, so one can imagine that in the internet as we know it becomes the domain of the broadband providers, alternative platforms will emerge. The clever will figure out ways around the restrictions, even on the networks of the broadband companies.
And that’s not even considering the possibility that improvements in wireless broadband technology will render the fiber-optic lines under discussion largely irrelevant, if not outright obsolete. In other words, the broadband companies can (and will) continue to try to kill the open internet, and tame the digital wilderness to the service of their profit margins, but they are largely engaging in a grand game of Whack-A-Mole, as long as we don’t give up the fight.
Make no mistake, for those of us who support the open internet, the decision by the D.C. Court of Appeals is no reason to celebrate. But neither should we be swayed to discouragement by the sky-is-falling rhetoric bouncing around the media regarding net neutrality. The battle continues, with the long-term odds very much in favor of the continued existence—in one form or another—of the open internet.
