The U.S. Needs a New Policy Framework for an Open Internet Ecosystem

In a new article for the Georgetown Law Technology Review, I seek to jumpstart a conversation about how to shape an Internet ecosystem that will serve the public interest. First, let me lay out the rationale for a new, unified policy framework for an open Internet.

Last December, the Federal Communications Commission repealed its 2015 network neutrality rules and abdicated its role to protect consumers and competition in the broadband market. This widely-criticized decision, coupled with the enormous and growing power of online platform companies like Amazon, Facebook, and Alphabet’s Google, raised serious concerns about the future of a free, open, and universally-accessible and affordable Internet ecosystem that promotes choice, innovation, privacy, and user control.

In the absence of net neutrality rules, broadband Internet access service (BIAS) providers like Comcast, AT&T, and Charter will be able to block, throttle, or otherwise discriminate against, or favor, certain Internet traffic. By blithely tossing aside its strongest legal authority to protect consumers and competition in the broadband market, the FCC has ensured that this already-consolidated market will only become more so. Meanwhile, the online platform market—which only a decade ago saw great investment and competition in social networks, search capability, and e-commerce - has itself become dangerously consolidated both horizontally and vertically. This has left consumers little choice other than to rely upon—and give their personal information to—a handful of large online gatekeepers. The danger of online platforms with huge troves of personal data crystalized with the revelation that data analytics firm Cambridge Analytica improperly obtained access to the personal information of tens of millions of Facebook users.

Inside-the-Beltway policymakers tend to focus on broadband conduits and online platforms separately. Yet, they are equally important to an open Internet.  Policymakers, however, should be wary of calls for “regulatory parity,” that is, regulating broadband providers and online platforms exactly alike. These industries serve very different roles in the Internet ecosystem, have different relationships with consumers, and, as discussed below, the problems that affect these industries are, for the most part, very different.

Below I highlight four reasons why the United States needs a new, unified policy for an open Internet ecosystem framework.

Lack of Competition/Incentive and Ability to Discriminate

It may be hard to believe, but as recently as 2002, there were some 7,000 Internet service providers (ISPs) in the U.S. Now, nearly three quarters of American households have a choice of two or fewer BIAS providers, usually a cable and a telephone company, and nearly half of American households have a “choice” of only one or fewer BIAS providers. As the FCC and the courts have noted, this lack of competition, coupled with high barriers to entry and vertical integration, has given BIAS providers the incentive and ability to act as gatekeepers and discriminate against certain Internet traffic. The result is higher prices for broadband services, prices that make service unaffordable for many people.

A similar consolidation of power has also occurred among the country’s largest tech platforms. And, like the BIAS companies, platforms have become increasingly vertically integrated, providing these platforms with the incentive and ability to discriminate against unaffiliated content, applications, and services.

Collection of and Control over Personal Data

The largest online platforms collect huge amounts of personal data from their users and, for the most part, maintain exclusive control over it. In fact, Facebook’s and Google’s entire business models consist of collecting users’ personal data and selling targeted advertising based on what the data indicates the users like and want. Essentially, the user is paying these companies with his or her personal data and receiving “free” online services in return. To the extent that a user has any choice about what data to give to Facebook and who else might access it, the company has made that choice extremely difficult. Tools to opt-out of data collection are buried in places even the most sophisticated user would have trouble finding.

BIAS providers have a different business model: they charge customers high monthly subscription fees and sometimes equipment fees as well. Although it is discussed less often, BIAS providers have access to even more data than online platforms.  BIAS providers can see every website a user has visited, every app a user has used, every device used to connect to the network, and every place a user has been with her mobile device. While BIAS providers may not have taken advantage of this data in the same way as the online platforms, the potential exists for BIAS providers to use and monetize this data.

Users have few rights with respect to the data collected by either online platforms or BIAS providers.

Lack of Transparency

The lack of transparency by BIAS providers and online platforms affect both sound policymaking and democracy itself.

BIAS providers do not, and are not required to, provide useful data on how many Americans have BIAS, nor are they required to reveal what they charge consumers. This lack of transparency makes it hard for regulators to make sound policy to encourage broadband deployment and adoption. It also makes it difficult for consumers to make sound choices when choosing a BIAS provider.

The problems caused by online platforms’ failure to be transparent are even more egregious.

During the 2016 election season, both Facebook and Google were overrun by fake accounts, false news stories, and fake political advertisements. Many of these were generated by bots and foreign agents, which were often one and the same. Online platforms have the legal authority to edit and curate their platforms from time to time, often by removing content they or a user finds offensive. For the most part, they have taken a hands-off approach towards removing and identifying fake and foreign-paid posts and advertisements until recently when public, policymaker, and advertiser pressure caused them to be more proactive in identifying and removing such content.  

In addition to being unaware of what is real and fake on online platforms, users don’t generally understand why they are receiving certain ads, why certain searches come up first, or why they see certain friends’ posts more than others. This is because search engines, social networks, e-commerce, and other sites do not give users any explanation of how their algorithms work or why they generate specific results. These algorithms are completely opaque to the user, despite their enormous impact on what we see, hear, and believe. This is not benign. It’s well known  that lower income Americans are more likely to receive online advertisements for loans at higher interest rates or for illegal pharmaceuticals. Importantly, the developers of these algorithms bear no responsibility for the financial or other harm these biases may cause.

Inadequacy of Current Laws and Enforcement

With the FCC’s abandonment of its authority to police the broadband market, BIAS providers are subject to oversight only by the Federal Trade Commission and enforcement of antitrust laws. However, neither FTC consumer protection authority nor current antitrust law is adequate to constrain the power of either industry.

Conclusion

The key players in the Internet ecosystem have become so consolidated and powerful that the network is no longer the open platform where innovation, creativity, robust discourse, and democracy once thrived. The good news is that policymakers are finally taking notice. Hopefully, now, they will also act.

In my next article, I will present a targeted policy framework that provides a good starting point for tackling these issues.

This series:

The U.S. Needs a New Policy Framework for an Open Internet Ecosystem

Regulatory Oversight and Privacy Policy for an Open Internet Ecosystem

Competition Policy for an Open Internet Ecosystem

Access and Affordability Policy for an Open Internet Ecosystem

Gigi B. Sohn is a Distinguished Fellow, Georgetown Law Institute for Technology Law & Policy and Benton Senior Fellow and Public Advocate. She is one of the nation’s leading public advocates for open, affordable and democratic communications networks. For nearly thirty years, she has worked across the country to defend and preserve the fundamental competition and innovation policies that have made broadband Internet access more ubiquitous, competitive, affordable, open and protective of user privacy.