February 2015

How “net neutrality” won and “Obamacare for the Internet” lost

With the Federal Communications Commission's approval of robust network neutrality rules, a long political fight comes to a surprisingly abrupt -- and, for proponents of the measure, remarkable -- conclusion. It could have been a political battle royale. It wasn't. And the tagline meant to rebut neutrality -- "Obamacare for the internet" -- didn't go anywhere at all. "Net neutrality" is a complicated topic, centered around preventing providers from charging more depending on the type of content that is being transmitted over their networks. But the Obamacare analogy never really caught on. Even during the week of February 23, as discussion heated up, it barely registered on Twitter. Rep Darrell Issa (R-CA) used the expression over and over -- but it still maxed out at 600 tweets in one day over the last 30 days. Net neutrality, on the other hand, was registering in the tens of thousands.

The Next Fight for Net Neutrality

The congressional battle over net neutrality may be over, and the Federal Communications Commission has voted to regulate the Internet as a public utility. But that just means the fight over net neutrality will likely move back to the courts. And this time, expect the First Amendment to be front and center.

Thus far, legal battles surrounding net neutrality have focused on the FCC’s authority to regulate. Now that the political process has established a statutory responsibility, opponents of net neutrality -- primarily Internet service providers -- need a constitutional argument to ask the courts to reverse the result. Their best bet is to claim that Internet traffic is a form of speech, and the ISPs that carry those messages are speakers. According to this theory, the best metaphor to describe ISPs isn’t utilities delivering electricity or gas to all consumers on the same footing. Instead, the ISPs would ask the courts to think of them as news organizations, conveying the stories and advertising that they choose. If Internet service providers could persuade the courts to think of them as modern news disseminators, rather than as purveyors of a content-neutral commodity, that would bring to bear the full body of free-speech jurisprudence that the Supreme Court has developed over the last century.

[ Feldman is a professor of constitutional and international law at Harvard University]

What Happens Now With Net Neutrality?

The rules voted on Feb 26 will define the debate around an Open Internet for the foreseeable future and establish a strong precedent in favor of robust network neutrality protections going forward. However, for better or worse, they do not bring that debate to an end.

While it is unclear exactly what the next step will be, this post is an attempt to briefly outline the possibilities. One set of possible next steps take place in the courts. At least one Internet service provider has already outlined its case against the rules, and it may not be alone in planning to challenge the rules in court. That challenge can take at least two forms. The first is called a facial challenge, and is the type of challenge that Verizon successfully brought against the 2010 Open Internet rules. It is a challenge to the rules as they are written -- how they appear on their face. The second type of challenge is an as-applied challenge. Instead of immediately challenging the rules as they are written, an as-applied challenge challenges the rules as they are applied in a specific circumstance.The other possible next steps take place in Congress. Next steps in the courts and in Congress are not mutually exclusive, and we will fight back against them in different ways. Congress could respond with a Congressional Review Act, specific legislation, appropriations riders, or a Communications Act Rewrite.

We Won the Internet! What’s Next?

[Commentary] SOPA/PIPA and network neutrality both showed that the tech world can effectively mobilize and react when confronted with existential threats. But if the tech community wants to take the next step in shaping the political landscape in which it operates, we must be willing and able to set the agenda. To do this, we must engage with Washington more regularly, and pay closer attention to seemingly smaller issues that nonetheless impact how the Internet functions. Be proactive. Stay at the table. Small startups speak with a big voice. Forge partnerships outside of tech. With net neutrality, the tech world has emphatically proven that its voice can move mountains in Washington. If we want to put that voice to more regular use, the opportunity is limitless. Now it’s on all of us to figure out how we want to use it next.

[Evan Engstrom is the Policy Director of Engine]

Why Everyone Was Wrong About Net Neutrality

Let’s begin with the most obvious incorrect prediction, namely that passage of a strong rule (a Title II rule in telecommunications jargon) would be politically impossible. The point was echoed by political cynics who believe that federal regulatory agencies like the Federal Communications Commission tend to become captured and obey the bidding of whoever spends the most to lobby them. The predictions were wrong. Why, exactly, is subject to debate. It may have been the unexpected effectiveness of Internet-based activist groups, who protested the FCC and helped convince millions of people to write and send comments about the potential rules. It may have been the White House and the personal involvement of President Barack Obama himself. Or maybe people just misunderstood the character of the FCC Chairman Tom Wheeler. Whatever the explanation, the most pessimistic theories of lobbyist power clearly need be revised.

Outflanking Network Neutrality: The Ubiquitous Broadband Strategy

[Commentary] Established telecommunications companies are committing their reserves of financial, legal and political power to stop the advance of new Internet companies in their tracks. The latter however have a broader vision. For them, network neutrality is an important issue but a feint; it draws the attention of telecommunications companies away from the bigger threat and the greater prize.

Over the past few years, Internet companies Google, Facebook, Amazon have announced a series of investments in unconventional broadband access points mounted on drones, blimps, and satellites as well as more conventional fiber and wireless. Internet companies are betting that demand for broadband along with consumer unhappiness with established telecommunications companies will fuel demand for alternate connectivity. Deployed, these technologies will enable Internet companies to overcome the last mile advantage held by telecommunications companies and deal directly with consumers while taking on the costs of administering a network. This is the real prize and promise of ubiquitous broadband. By avoiding the use of terrestrial infrastructure, Internet companies avoid two local problems: terrestrial infrastructure and filtering.

[John Laprise is an assistant professor in residence at Northwestern University in Qatar]

Net neutrality should apply to mobile networks

[Commentary] A mobile carrier may want to give users lower carriage charges with the caveat that they can be interrupted, in other words, give users lower data charges for bandwidth-heavy applications on the understanding that they can be interrupted if there is congestion. Here’s the rub. There is nothing in the net neutrality rules passed by the Federal Communications Commission that would stop this sort of congestion management contract.

What the rules stop is a carrier going to one particular content provider and asking them for blanket payments to ensure that they are not interrupted and their consumers have a better experience. But they don’t stop you going to consumers and saying that they can nominate certain applications that they don’t mind having some interruption on. The principle here is that the mobile carrier shouldn’t dictate which applications should receive priority. That decision should be delegated to consumers, and, to them, you will have to give them an incentive to change their behavior to assist in network management. The power of the net neutrality argument comes from its removal of the ability of carriers to dictate specific behavior on content but opens it up for them to provide consumers with the tools and incentives to manage congestion issues should they arise. In the end, the engineering requirements will be met – because they must be – but the power of how they are met will not be concentrated.

Net neutrality will apply to cell networks. Here's the best case for why it shouldn't

[Commentary] The Federal Communications Commission's network neutrality rules make another big change that has received less attention: it extends network neutrality rules to the wireless service that powers our smartphones. Critics say that's a mistake -- that the arguments that persuaded the FCC to exempt wireless networks from regulation five years ago are still valid today. If they're right, the new rules could hinder innovation in the wireless market -- the exact opposite of what they're supposed to accomplish.

Network neutrality rules could make it harder to manage congestion. Ryan Radia, an analyst at the libertarian Competitive Enterprise Institute, says that makes it important to give wireless providers flexibility to make decision about limiting the use of bandwidth-heavy applications to ensure that bandwidth-heavy applications don't make the network unusable for everyone. Additionally, the rapid pace of change in wireless networks increases the danger that the rules the FCC adopts could prove to be a poor fit for the wireless networks of the future.

Net neutrality: Long-term implications loom for Internet of Things

The Federal Communications Commission's order to protect the open Internet, which passed with a 3-2 vote, carries with it implications for the Internet of Things (IoT), even though the immediate impact might not be felt for quite some time.

While details are emerging, the overall consensus is there will be some impact, but like net neutrality itself, there are divergent views on how negative or positive the effects will be. John Byrne, directing analyst of machine to machine (M2M) and IoT at Infonetics Research, expects the rules will not have any immediate impact on IoT applications. "The new rules apply to 'broadband Internet access service' -- is that or is that not IoT? In some cases it clearly is; connected home for example," Byrne said. Other cases are not so clear -- what about home healthcare, which arguably has both a consumer and business-to-business play? On the negative side of things, Kore Wireless CEO Alex Brisbourne said, "I have two main concerns. First, I believe net neutrality will prevent valid opportunities to use next-gen networks for critical services that validly would have priority route management (e.g., first responder, medical alert, etc.). This will continue to foster proprietary network build and need. Second, it will prevent the development of valid, 'multi-tier' commercial pricing models, where best efforts at a low price may be attractive."

Will cell phones help insurgents? Or the regimes they oppose?

[Commentary] Insurgents cannot decide what to make of cellphones. While some insurgent groups target cellphone towers and demand companies turn towers off at night, others complain when providers are slow to fix network problems and threaten them for poor coverage. This variation reflects the fact that cellphones can hurt insurgents by allowing civilians to more safely share information on rebel activity with the government, but they also help insurgents by facilitating violent collective action, just as they help us all manage our daily lives.

In some cases it is beneficial for governments engaging in counterinsurgency or counterterrorism to facilitate the spread of cellular communications. In others, the government should focus on limiting access to cell phones. To know when governments should do each, we need to know why insurgent groups vary in how they view cell phones. How technology affects political contestation is highly dependent on initial conditions. This should not be surprising, but it bears repeating as it reminds us that technology policy in conflict zones should be made through careful consideration of local conditions, not by reference to grand theories based on averages across many diverse places. In this way, information and communications technology policy in conflict zones looks like all other policies in conflict zones.

[Jacob Shapiro is an Associate Professor in the Woodrow Wilson School and the Department of Politics at Princeton University. David Siegel is an Associate Professor in the Department of Political Science at Duke University]

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