Net Neutrality Fight Brews

Composite sources by zmiter & maximmmmum

When the President of the United States disses fundamentals from climate science to the separation of powers, it is admittedly a very difficult time to debate any issue outside the gravitational pull of so much regressive momentum. Amid a flurry of truly dangerous policy reversals, the storm now brewing over the issue of Net Neutrality will doubtless be subsumed by the broader narrative of “Trump rollbacks,” but this generalization only clouds our ability to assess what’s actually happening in an already obscure area of cybernetic policy. Especially through the chaos of social media. (Add to this, the recent kerfuffle over the FCC possibly taking action against CBS for a joke made about Trump by Stephen Colbert, and we’ve got a whole circus, but we’ll stick with Net Neutrality for the moment.)

First, let us pause to acknowledge this dichotomy: the fact that we choose to interact in a walled garden like Facebook as complicit lab rats in that company’s grand data experiment while posting declarations that the web must remain “free” and “open” is a delusion that must be reconciled before considering an issue like Neutrality. Free and open are nice words and easy to support with a mouse click, but what’s really at stake here?

The order that FCC Chairman Ajit Pai proposes to reverse—for the moment anyway—is not actually Net Neutrality itself; and the real question before us is whether the chairman will merely deregulate or will instead live up to any of his prior testimony and help to shepherd a more effective and comprehensive policy aimed at achieving Neutrality principles. As noted in my last post on this subject, the FCC rules only affect ISPs, and if we truly want an internet that protects all parties great and small, then a coherent and consistent regulatory framework must be pursued for edge providers as well.

In practical terms, it seems to me that there is little value in saying that ISPs (AT&T, Comcast, etc.) may not discriminate via broadband while edge providers (Google, Facebook, etc.) are free to discriminate via algorithm. And in simple terms, this was the crux of Pai’s dissent in passing the 2015 order which placed ISPs under Title II of the Communications Act, giving the FCC power to regulate these providers as “utilities.”

It is important to remember that Net Neutrality is a goal and not a specific policy doctrine. Its principles go back to the days of dial-up, and as attorney and expert Mitchell Lazarus argues in his blog, regulating ISPs as “utilities” through the 1990s was a key reason why we had more competition among this class of providers than we do today—when most markets are served by a monopoly or duopoly at best. But, in an earlier post from October 2014, Lazarus also explains why placing ISPs under Title II of the Communications Act alone would not achieve Neutrality—partly because internet traffic simply does not ebb and flow like phone service for which Title II was designed. Lazarus writes …

“An ISP’s capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content – email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is ‘fair’. An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly.”

So, Chairman Pai’s plan to reverse the rule placing ISPs under Title II does not in itself “roll back Neutrality” because one cannot roll back what has not been achieved. Having said that, it seems that Lazarus would not endorse reversing the Title II status so much as adding to it “…a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs.” These competitors would pay to use the channels, and consumers would once again have options to switch ISPs if they become dissatisfied with the service, according to Lazarus’s assessment.

Whether or not the monopolistic state of the ISPs can be reversed or mitigated, the same problem exists on the edge provider side of the equation, with a company like Google owning most of search and advertising in the U.S. and Europe, along with one Amazon, one Facebook, etc. It seems to me, we consumers cannot expect an effective approach to the goals of Neutrality without meaningful and complementary regulation by both the FCC and the FTC of both ISPs and edge providers.

In a nutshell, the FCC’s job is to protect consumers vis-a-vis access to the web while the FTC’s job is to protect consumers as we interact with edge providers once we’re on the web. And it is unclear at the moment what happens when a company functions as both access and edge provider.

It’s mostly about corporate interests for now.

Be prepared for this fight to at least sound existential in the rhetoric to follow from places like the Electronic Frontier Foundation. Be prepared for the story to be positioned as an Obama-for-People v Trump-for-Corporations narrative—and for the Neutrality tornado to fling about all manner of unrelated topics (did someone say SOPA?). But for now, this battle seems to have more to do with very large corporations on both sides—and very little to do with consumers. Mostly it’s over the issue of who is going to pay for what.

Large users of broadband—Netflix is the world’s leader—are not the companies that invest in the physical hardware to expand access, speed, and reliability. And there is an extent to which the ISPs, which do make these investments, see Neutrality regulations as keeping the access prices paid by these huge edge-provider services artificially low. There is more to learn on this subject as the story unfolds; but this follow-the-money line of inquiry is likely more accurate than taking at face value the story that the Obama-era rules were providing meaningful consumer protections.

Net Neutrality & Copyright

In both real and fictitious ways, the Neutrality fight is likely to implicate copyright and the interests of rights holders. Because Neutrality principles are based on the premise that universal access to the web is a civil right, remedies for online infringement like throttling speeds or account termination become unavoidably intertwined in the public debate over Neutrality. This may foster exaggerated and misleading headlines claiming that major rights holders (i.e. Hollywood) are against Neutrality. But there is no underlying reason why copyright enforcement cannot coexist with Neutrality principles, and I worry that persistent confusion will rally creators to lobby against their own self-interests.

In this guest post, for Hypebot, No Internet, No Music: Why Musicians Should Care About Net Neutrality, Will Meyer has the right spirit but is making an important error in my view. The understandable instinct to assume that President Trump wants to gut protections for independent creators obscures the fallacy in which Meyer seems to conflate edge provider Facebook with the ISPs affected by FCC rules. He writes, “… the truth is Facebook isn’t free. We pay with our data and we must pay with our dollars if we want the algorithm to take our bands seriously.” Absolutely right. And, in a slightly different context, Ajit Pai said essentially the same thing in his dissent over former Chairman Wheeler’s proposal to place ISPs under Title II.

More relevant to Meyers’s concerns is the fact that Pai specifically noted that having two separate regulatory regimes for ISPs and edge providers only entrenched the market advantage of the latter, which goes directly to the heart of some of Meyers’s observations about using Facebook for promotion of his band. This does not mean Pai gets a free pass; it means creators need to look way beyond the rhetoric to follow how the policy will affect them.

Evolving Neutrality policies in both the U.S. and abroad should be closely watched by copyright interests because the statutory frameworks can make a difference with regard to enforcement. Neutrality is meant to protect access and dissemination of legal activity online, and there is an extent to which the public debate becomes mangled by those who view both broadband and access to unlicensed content (i.e. piracy) as interrelated “rights.”

As indicated in previous posts, I advocate a wait-and-see approach to Chairman Pai’s policies, not because I inherently trust his view; but because the 2015 framework for ISPs doesn’t really seem to achieve the consumer-facing goals that people think it does. Unfortunately, this probably won’t stop the hyperbole from flying in every direction, which is unlikely to help the development of a more coherent policy.

© 2017, David Newhoff. All rights reserved.

This entry was posted in Copyright, Digital Culture, Law & Policy and tagged , , . Bookmark the permalink.

9 Responses to Net Neutrality Fight Brews

  1. Xiristatos says:

    Ay, I was just gonna come to you and tell ya about this, but it looks like you beat me to it. Thank you so much for addressing this! I swear, this whole “Net Neutrality” fearmongering coming from most of the left is going on my last nerve, and had done so for many years. Of course something like this is gonna be another “Hot Topic” among the masses, apparently John Oliver is just way too much of a sacred cow to be ignored… he may have his heart on the right side, but he cries wolf way too in almost anything he talks about.

    You wouldn’t believe how many websites I visit tell me through some retarded “ad” or something similiar that “FREE AND OPEN INTERNET IS AT STAKE” or “US Government trying to screw with our Internet again!”, and that I should contribute to dumpster websites like or… the freaking EFF. I wouldn’t even have bothered with something like this

    However, even among the whole fearmongering bullshark that I have read over the years, this here is the single stupidest thing I have ever read in my life… this:

    You see, this is an interview with the founder of Pirate Bay(!), Peter Sunde, who says that he has “given up” on the “war for free and open Internet”. It’s the biggest load of shit, and while I do wish you would read it just so you can see what I mean, I would suggest having something you don’t mind breaking to shreds right next to you…

    • Xiristatos says:

      Oh wait… I didn’t complete that comment of mine and can’t edit it.

      See, I’m supposed to say something after “I wouldn’t even have bothered with something like this”, which would have been “, if it weren’t plasted all over my damn face whereever I go. I don’t even really FEEL discriminated on which sites I wanna visit… I clearly CAN visit them and I don’t whine like a bitch. Though then again… I live in Germany, which is a different thing altogether from what’s in America… obviously.”

    • David Newhoff says:

      Xiristatos, thanks for your comment. Indeed there is a lot of fear-mongering out there, and while I think satire (re. Oliver) can be a great vehicle for speaking truth to power, it’s not the best way to get hold of a complex issue like this one. Funny that you mention that Peter Sunde interview. I responded directly to it:


      • Xiristatos says:

        Oh… I never saw that! I thought this interview was in line with this recent “NET NEUTRALITY BATTEL!”.
        But good. I’m gonna read that response of yours, gonna love it for sure.

        And yeah, I do think that people like John Oliver are really nice people and yes, they certainly do mean well, but they just… don’t seem to be able to extend their views beyond what the headline tidbits tell that everyone already knows about. You know what I mean…?

  2. n8chz says:

    I’m always quite impressed with absolute consistency and discipline you apply to your editorial policy of always remembering to use scare quotes with all terminology relating to network integrity. Since you’re against “network neutrality,” can I also assume your against the “end-to-end principle?” Myself, I’d like to think that when I arrange for ISP service, there’s an explicit understanding that what I’m buying is access to the Internet (and not some subset of it as in China or Turkey), and that this access is via the standard protocol stack, TCP/IP etc. I expect to pay more money for more speed, higher usage caps, etc., but I also expect that within those constraints, a packet is a packet is a packet, and that the possible fates of a packet are those defined in the protocols, which of course should be non-proprietary. Internet access, no more, no less. That should be a well-defined term, and therefore internet access should be a well-defined product. You talk about utilities (which would be an improvement over the status quo), but really it should literally be a commodity. So much connectivity (in seconds), so much traffic (in bits), so much speed (in bits per second) for so much money (in dollars). Apples-to-apples comparisons between providers. The websites you refer to as “edge providers” are websites, not internet service providers. Once inside the (hopefully decidedly) generic thing called the Internet, I can take or leave whatever bundle of anti-features that various walled-garden type websites have to offer. I generally gravitate to the less mercenary brands–Duck Duck Go instead of Google, Mastodon instead of Twitter, etc. Who knows what the future holds, though? DDG and Mastodon may fade into obscurity like Diaspora*, or alternatively maybe they sell out and develop a more “mature” (mercenary, or commercial) business model like, say, Firefox, which has really been moving the goalposts, in terms of what it means to be a not-business-as-usual browser.

    I don’t know whether we had more regulation of ISP’s during the 1990’s than we do today, or even what that would mean. Obviously there were many, many more ISP’s to choose from, but the term ISP meant something very different then. The infrastructure underlying every dial-up ISP (including whatever ones are still operating) is a literal utility; the telephone system. It seems clear to me that the reason there was competition back then is lower entry costs. You could set up an ISP without bringing your own infrastructure. What raised entry costs and utterly destroyed competition is when the Baby Bells got wise to the “tragedy of the commons” type situation that was arising due to the policy of treating voice and data as interchangeable for billing purposes. This resulted in a lot of ISP’s being acquired by telecoms. The dial-up I subscribed back then, a scrappy Texas-based indepedent called Flash.Net, was acquired by Prodigy, which was in turn acquired SBC (which later acquired Ameritech (one of its sibling Baby Bells) and eventually its former parent company AT&T). One name in that food chain–Prodigy–should be of special interest. Prodigy was one of a much smaller (and older) group of companies (the others being Compu-Serve, and America Online in its original incarnation). These comprised an industry dating back to about 1980 called “online services.” They were walled gardens by design. Subscribing got social communication access (internal email, internal message boards, internal chat rooms) specifically with other subscribers of the same service, as well as access to curated walled gardens of “content.” The Internet at that time was almost entirely non-commercial, most of the network nodes were run by universities, and the protocols for transferring data between them were based on cooperation and redundant paths, not inside deals and exclusive arrangements. At some point there were a few people connected to both of these vastly different worlds who couldn’t help to notice that one was vastly larger and more diverse and more versatile than the other. So the online services took baby steps toward becoming internet service providers. Here comes everybody, as they say.

    I look at the state of play circa 2017, and it is obvious that the chance to reclaim the permission-free, monetization-free and generically defined communication tool that was the early Internet is all but lost. I’ve utterly given up on it. Your industry can have it, for all I care. It’s already the intellectual equivalent of broadcast television. May as well push out what’s left of noncommercial content.

    • David Newhoff says:

      Although you say I’m consistent in my use of scare quotes, I must have forgotten to deploy them in this post. And although you managed to infer that I am against Net Neutrality, I seem to have forgotten to mention that as well. That the internet became commercial, as you say, is a matter about which I am largely ambivalent other than to say, “What would you expect to have happened?” I don’t have any emotional attachment to the idealized web of yesterday or anything personally vested in the web of today. If anything, I think Web 2.0 has made a mess of quite a lot of things, as the editorial tenor of this blog would indicate.

  3. I appreciate all you’ve said in the this article. I think the over riding point that I’ve heard is:

    You have a choice as to how much privacy you’re willing to give up. If you want to go the Tor route, or use a hardened browser, or do everything in a VM with a sandbox through Tor, it’s up to you. Don’t use Facebook, don’t allow tracking, bypass Google pixels, all your choice.

    But actual access is through the ISP. I pay for that, at least for now. My speed is determined, to an extent, by how much I pay each month. While ISPs don’t have unlimited bandwidth, they are constantly updating their infrastructure, and bandwidth caps are already in common usage – even though we don’t always know it.

    My impression is that the loss of “net neutrality” would create a tiered system where the bigger players would pay to routinely allow their users faster access to their sites, at the expense of non-paying websites. As n8chz said, a packet is a packet. If what I’m saying is accurate, I can see a system where, for a price (small, at first), website owners could be guaranteed “premium access speeds”. So the ISPs would be getting money both from their customers and from content providers, by charging for what is free right now.

    If I’m mistaken about this, please correct me. This is the main point of what I’ve read.

    • David Newhoff says:

      Thanks, Russell. In general terms, I think you’ve got it right, with the exception that I would quarrel with the extent of choice people have among edge providers. But that’s a bigger conversation that’s a bit tangential at the moment. The main point of this piece is that, as of now, we’re not “losing net neutrality” by virtue of Pai’s reversal of Title II because that order did not create net neutrality. Hence, my focus is on the likelihood that activists are going to draw the battle line over the Title II reversal rather than actually work toward Neutrality principles, which are not as controversial as they are made to sound. In fact, I just read Andrew Orlowski’s excellent analysis of this a political matter. Andrew’s been following this stuff much longer than I have. I recommend the article.

      Appreciate the read and the comment.

    • John Warr says:

      My impression is that the loss of “net neutrality” would create a tiered system where the bigger players would pay to routinely allow their users faster access to their sites

      NN is only concerned with traffic on the public networks and Google, Facebook, Amazon, et al don’t use that. IOW NN is a way of squashing the next Google.

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