February 2015

[Commentary] Largely overlooked in the debate over the Federal Communications Commission’s network neutrality rules is the impact they will have on privacy. This could be a game changer, requiring Internet service providers to seek customers' permission before monitoring or sharing personal information.

"Potentially, this could apply to every Web request you make," said Marc Rotenberg, head of the Electronic Privacy Information Center. "If the same safeguards that now apply to phone services are applied to broadband, this could have major implications for Internet service providers," he said.

At issue is Section 222 of the Communications Act. It requires that telecom companies protect customers' "proprietary information," such as how you use their services. In the context of telephones, for which the provision was created, Section 222 is relatively benign. It empowers a telecom company to market different services to you based on, say, how many long-distance calls you make. In the context of the Internet, however, Section 222 takes on more sweeping significance, covering almost everything you might do online, from the sites you visit and searches you perform to the things you buy.

"Clearly, where you go and what you do on the Internet qualifies as proprietary information under the law," said Ryan Calo, an assistant law professor at the University of Washington who specializes in Internet privacy. "This potentially covers a lot of ground."

Bruno Leenders’s digital life has not changed all that much in the two years since the Netherlands started demanding that Internet providers treat all traffic equally, the same sort of rules that the United States adopted. His bill has gone up just marginally. He surfs, streams and downloads at the same speed — if not a little faster given the upgrades to Netherlands’ network, already one of the world’s best. In short, the new law was not the Internet Armageddon that many Dutch telecommunications companies, industry lobbyists and some lawmakers had predicted.

“I can still watch what I want, when I want,” Leenders said on a half-empty commuter train recently, as he checked his e-mails and the latest news on his smartphone. “It is not up to any company to tell what I can do online.” As the United States moves to regulate broadband Internet service as a public utility, the Netherlands offers a rare case study of what could await American consumers and companies. The Netherlands was the second country in the world to adopt so-called open Internet rules, after Chile.

Computers, cellphones and landlines in Arizona were knocked out of service for hours, ATMs stopped working, 911 systems were disrupted and businesses were unable to process credit card transactions — all because a vandal apparently sliced through a fiber-optic Internet cable buried under the desert.

The Internet outage did more than underscore just how dependent modern society has become on high technology. It raised questions about the vulnerability of the nation's Internet infrastructure. The severed CenturyLink-owned cable is near a riverbed in a rocky stretch of desert north of Phoenix that isn't easily accessible to vehicles. It carries signals for various cellphone, TV and Internet providers that serve northern Arizona. Workers in hardhats could be seen digging up and splicing the cables, which appeared to be bundled in a jacket a few inches in diameter and buried several feet under the rocky soil.

Partisan tensions over the drafting of new network neutrality rules might not fade so quickly on the Federal Communications Commission. Feb 26’s 3-2 vote on the rules came after months of accusations of misconduct and antipathy from the commission’s two Republicans, and they don’t appear entirely confident that everything can be smoothed over.

“I don’t hold out hopes that we’re going to have many Kumbaya moments going forward, but let’s hope that’s the case,” said Michael O’Rielly, one of the Republican commissions on the five-member FCC. Chairman Tom Wheeler has overseen a “fundamental shift for the agency,” he added, and made no effort to include input from the two GOP commissioners throughout the course of the process. “Here they not only asked us to violate our principles, they ran over our principles,” he added. Commissioner Ajit Pai said, “I like Chairman Wheeler, I get along with him personally and I hope that we have a collaborative spirit going forward,” he said. “But to this point, by and large, Commissioner O’Rielly and I have been shut out on matters of significance.”