Printed with permission of the author: Philip Purciello. Presently, Mr Purciello heads up press relations for the Simsbury Republican Town Committee (RTC) and he is an RTC executive committee member.
On February 26, 2015 the Federal Communications Commission (FCC) – in accordance with Title II of the Communications Act and Section 706 of the Telecommunications Act of 1996 – adopted sweeping net neutrality regulation that converts internet infrastructure from a privately held commodity into a government regulated public utility (“Open Internet”, n.d.). In 2002, the FCC ruled that broadband internet should be classified under Title I; which regulated information services (Miranda, 2013). As a precursor to net neutrality, the FCC reclassified broadband for protection under Title II. Title II allows the government to regulate common carrier services – or telecommunications services that are used broadly by the public, like radio and television (Miranda, 2013).
Net neutrality stems from the commons ideology of neutralism – the idea that digital information should not be private property, but a public common (Cleland, 2009). Neutralists believe that the people should equally control digital data – this includes broadband infrastructure, but also media, and software. Generally speaking, neutralists position to hold communal equity of digital information above intellectual property rights (Cleland, 2009). The idea of neutralism was created in the early 1980’s by software engineer Richard Stallman, who introduced the world to copyleft or open source software licenses. Stallman felt that free software would enable individuals to build upon the existing framework as a means to spur innovation – that intellectual property equates to inequality (Cleland, 2009). The concept of neutralism is the driving force behind net neutrality.
While the concept of neutralism had existed since the 1980’s, the term net neutrality was first coined in a scholarly article published by Columbia Law School professor Tim Wu (2003). Like Stallman before him, Wu felt that intellectual property, especially in terms of the internet, was a driver or inequality and would result in the hindrance of innovation (Wu, 2003). Shortly after Wu’s publication he became the face of net neutrality – authoring The Master Switch: The Rise and Fall of Information Empires in which he discussed net neutrality as a means to combat information empires who seek to dominate the technology industry and curtail competitive innovation (Morozov, 2011). Wu argues that net neutrality would promote innovation, as no entity – other than the regulating authority – would be able to control or disrupt data as it passes through broadband infrastructure.
Stanford Law professor Barbara Van Schewick agrees with Wu that net neutrality is important and common carrier should apply to broadband service, but disagrees on his assertion that countering information empires is the predominant reason for acceptance of net neutrality (Morozov, 2011). She asserts that without net neutrality discriminatory practices would still exist even by providers who are not information empires – the concept of information empires controlling all data is just a distraction (Morozov, 2011). Van Schewick acknowledges potential ramifications of net neutrality as well – by limiting the power of network operators, they would be far less likely to engage in improving or expanding their existing networks. “If we truly believe that network providers need more profits to motivate them to deploy broadband networks…tax cuts on broadband investments or direct subsidies may be an option,” states Van Schewick in addition to offering that a tax on citizens for broadband infrastructure as a public utility could be an option (Morozov, 2011).
Evidence of the data control that Stallman, Wu, and Van Schewick discussed occurring exists. According the FCC Comcast violated the law by blocking some data being shared via BitTorrent in an effort to cripple the peer-to-peer file sharing capability of the application (Svensson, 2007). A North Carolina internet service provider was prosecuted by the FCC for blocking voice over internet protocol (VoIP) calls on its broadband service (McCullagh, 2005). Telco blocked calls originating from Vonage in an effort to ensure users were not able to use a competing product on their network. Finally, AT&T faced heat from the FCC for blocking FaceTime from working on their networks (Shein, 2012). In all of the above cases, the application was successful in appealing to the FCC so that their service would not be restricted on the network. With so much success in trying entities that have slowed down service for certain applications, why is it necessary for the FCC to add more regulation?
FCC commissioner Ajit Pai feels it is not necessary and it is just a step toward government micromanagement of the internet (Lohr, 2015). Netflix, once a major supporter of net neutrality has backtracked from their initial support, as Chief Financial Officer David Wells stated at an industry conference, “Were we pleased it pushed to Title II? Probably not…We were hoping there might be a non-regulated solution” (Spangler, 2015). Opponents of Netflix’s involvement in net neutrality took to Twitter to point out the contradiction, “Can’t believe that @netflix, the poster child for #TitleII, is now saying it really didn’t mean it. WTF. #netneutrality – @KatyontheHill”(“‘WTF?': Netflix CFO backtracks on net neutrality support”, 2015). The Electronic Frontier Foundation, while proponents of net neutrality, feel that FCC regulation could become more burdensome on internet freedom than the value it provides (Glaser, 2014). The Progressive Policy Institute views regulation under Title II as being costly, outdated and ineffective (Litan & Singer, 2014). Many see net neutrality being necessary to ensure the internet remains a place for innovation and internet service providers do not become a hindrance; but most also agree that net neutrality as public policy provides cause for concern (Steimle, 2014). The decision for the FCC to regulate the internet as a public utility via net neutrality has various ethical and legal implications.
A regulated internet could have disastrous implications for the First Amendment to the U.S. Constitution and its freedom of speech protections. The idea that government regulation of the internet could potentially be used as a method to curtail freedom of speech is nothing new in the academic circle. Alex Lockwood from the United Kingdom’s Sheffield University was invited as a speaker at the 2008 Association for Journalism Education’s annual conference (Lockwood, 2010). At the conference, and later as a submission to Geopolitics, History and International Relations journal, Lockwood discussed how net neutrality could be a tool of government to subside “propaganda” (Lockwood, 2010). The article discussed Lockwood’s concern of environmental skepticism in regards to anthropogenic climate change and how internet media aids the perpetuation of misinformation on the topic. Lockwood believes that broadband internet should be nationalized and regulated in order to filter climate change skepticism and all “propaganda” in general. “Or perhaps every new online publication and blog, whether selfhosted through an ISP or central blog host (e.g. Typepad, Blogger.com) should be required to register with a central agency; a point from which at least the ownership, funding and political economy of the web – and not just climate denialists, but all potential propagandists – could be assessed”(Lockwood, 2010).
While Lockwood philosophizes about the idea of using a government regulated internet to censor speech – England’s government has already taken steps toward restricting freedom online. While England and America’s style of government differs, they share a commonality in government regulation of the internet. While a public utility internet is new in America, English law makers show that with the power to regulate comes regulation. In 2014, Prime Minister David Cameron enacted a government filter that blocks the viewing of pornography from England (Penny, 2014). In order for a user to be able to view the content, they must opt in – no doubt invading privacy by creating an identifiable population that says yes to the content.
Cameron’s action does not just stop at pornography – in January 2015, Cameron proposed a policy that would block data encryption (Ball, 2015). Cameron establishes precedence that could be used in the United States for the government to control content in an effort to combat terrorism; he feels that encrypted data has no place online (Ball, 2015). Not only does blocking encryption invade on the privacy of internet users, it also puts them at greater risk for privacy breaches. Encrypted data is used every day in shopping and online banking – opponents assert that Cameron’s policy would do far more harm than good.
In addition to privacy invasion English lawmakers are also seeking to silence hateful speech online and ban the users who engage in it from social media (Price, 2015). Terms and conditions documents on social media sites often call for the blocking and banning of content – but those terms and conditions are not legislated and force upon a network. The English Parliament seeks to pass a law that would ban anti-Semitic speech; while the idea is noble, it creates precedence that government can regulate speech on the internet. In America, this type of language is considered repulsive to many, but it is also the citizen’s right to be repulsive. The United States and United Kingdom governments align in their regulatory control of the internet – the potential for the government to regulate content is evident by the precedence established in England. Just as net neutrality seeks to prevent telecommunications companies from blocking data; it opens the door for the government to do the same.
The potential legal implications of a government regulated internet are staggering – but our Judicial Branch would aim at upholding the Constitution from any action that would infringe on our rights. The potential for misuse exists, but legal ramifications are not the prevalent implication from passing net neutrality – ethical implications are immediate and will likely have a caustic effect on how the internet is used today.
The cases above would prove to be unethical from the rights perspective of ethical decision making (“A Framework for Thinking Ethically”, n.d.). The rights approach hold actions to be ethical when they uphold the rights of individuals over other needs. As evident in the way England has controlled its internet, the regulation on speech and invasion of privacy is unethical as it holds other factors above the individual’s rights.
Of the major takeaways from Stallman, Wu, and Van Schewick is that neutralism is intended to create an equitable environment for internet users and not allow internet service providers to concentrate power (Morozov, 2011; Cleland, 2009; Wu, 2003). The three aforementioned pioneers of neutralism take the fairness or justice approach which identifies ethical decision making as being the decision that is equitable for all (“A Framework for Thinking Ethically”, n.d.). While the FCC pursues equity in enacting net neutrality, the result is anything but ethical under the fairness or justice equitable framework.
The FCC’s vision is that all internet traffic is treated the same way; putting a halt to internet service provider’s ability to ban or slow certain pieces of data, and ensuring that all traffic is treated equally regardless of the amount of bandwidth used by a single customer (Reardon, 2015). With net neutrality, the FCC is gaining control of the broadband infrastructure established by telecommunications companies. As a result, the FCC secures the regulatory authority to control the infrastructure as they see fit.
Imagine that the broadband pipeline that we all use to get online is instead a sewer pipeline (Purciello, 2015). An independent sewer company builds a sewer pipe in front of a small community where five families live. The pipe is plenty capable of handling the traffic from the five families. Within a few months’ time, a hotel is built on the same road, attached to the same sewer infrastructure. With the added traffic that the sewer pipe is experiencing as a result of the guests of the hotel, the pipe becomes blocked. The independent sewer company comes out to work on the pipe and is able to identify that the blockage occurred as a result of the traffic coming from the hotel. They bill all of the residents on the road for the cost of repair equal to the percentage of traffic they use – as a result, the hotel pays a much larger portion of the bill then the residents on the road. A few months later the town announces that all sewer infrastructure will now be regulated by the town’s public works department and the bill will be a flat rate for all who use the sewer. A little time goes by and another blockage occurs in the sewer pipe outside of the hotel. This time the public works department comes out to conduct repairs; as they now manage the infrastructure. The town sends a bill to the five houses on the road and the hotel for the total amount distributed evenly into fifths. As the town now enforces that all sewer traffic be treated equally, the hotel is no longer responsible for paying the bandwidth they use.
While it may not be the intention of the FCC or neutralists, the sewer scenario is precisely the effect net neutrality will have on data speed. Since all traffic will be treated the same, a user who uses far more bandwidth streaming videos or playing games online, will pay the same amount as someone who uses the internet just to check email. Absent of net neutrality, internet service providers could force users who use more bandwidth to pay equal to what they use. Net neutrality does not provide equity for people who do not use a lot of data.
As net neutrality is not equitable in terms of speed, it also fails to be equitable in terms of price. The Progressive Policy Institute asserts that net neutrality would cost an estimated $11 billion dollars (Litan & Singer, 2015). The most likely form this cost would take is in taxes and fees attached to monthly internet bills. Given the already steep costs of internet access, additional taxes and fees on internet service would price low income individuals out of the ability to access the internet. With more constraints on the internet and a reduced user base, the cause that proponents of neutralism support – to ensure that there is no hindrance to technological innovation – is more negatively affected by the enactment net neutrality regulation.
The concept of neutralism is widely supported by a bi-partisan majority. According to a University of Delaware Center for Political Communication poll, 81 percent of Americans oppose the ability for internet providers to provide pay-for-performance fast lanes (Ehrenfreun, 2014). The poll also identifies that only ten-percent had “heard a lot” about net neutrality. In concept, many agree that internet service providers should not have absolute power. What academics and citizens alike disagree on is what method should be leveraged to get there. The disparity in the polling data between those who are verse in what the FCC’s net neutrality regulation means and those who are completely unaware is worrisome. The FCC’s board is composed of appointed commissioners who are not subject to public opinion. The common good approach to ethical decision making describes that ethical decisions are made with respect and compassion to others (“A Framework for Thinking Ethically, n.d.). Given that there has been little effort to educate the populace on the potential negative externalities of net neutrality regulation, the approach taken by the FCC has not been ethical.
The preceding text provides an overview on the purpose of neutralism, the case for net neutrality, and the legal and ethical implications of the enactment of the regulation. In balancing the benefits of net neutrality over the potential for harm – leveraging a utilitarian approach to ethical decision making – I stand strongly in opposition to net neutrality as currently regulated by the FCC (“A Framework for Thinking Ethically, n.d.). I support the concept of neutralism in ensuring that technologies do not succumb to the monopolization of the technology industry. In echoing the concerns of Barbara Van Schewick, I also feel that FCC regulation in the form of net neutrality will provide internet service providers with the ability to neglect upgrades on existing infrastructure – further detracting from innovation (Morozov, 2011).
The Sherman Antitrust Act (Sherman Antitrust Act, 26 Stat. 209, 15 U.S.C) provides congress the ability to regulate industry that is deemed as anti-competitive. It is not the absence of government regulation that has allowed the telecommunications industry to be controlled by few companies; it is because of it (Steimle, 2014). Actions that have occurred on behalf of telecommunications entities that stifle competition by slowing down or blocking the data transfer of competing applications should be viewed as engaging in anti-competitive practices. As a result, the Court should have the ability to properly penalize and regulate these companies to the extent of the law. In order to find a solution to the anti-competitive nature of the telecommunications industry, Congress should work to strengthen anti-trust laws and disband the concentration of like-services under one entity.
Additional regulation will only provide for the longevity of the telecommunications giants while ensuring that a barrier to entry exists that prices start-ups out of the market. This is evident by what occurred during the deregulation of telephone communications. While regulated by the government, AT&T was allowed to monopolize the industry as they had control over the initial telephone infrastructure and government regulation made it impossible for a new provider to come in an lay their own infrastructure (“Deregulating Telecommunications”, n.d.). With the passage of the Telecommunications Act of 1996, the industry became deregulated allowing local and regional phone companies to enter the market. These up-and-coming phone companies built their own infrastructure or leveraged existing infrastructure and were able to drastically drive down the costs of phone service throughout the United States. Deregulation made telephone communications more affordable and allowed industrial innovation to prosper.
Communications professionals should be particularly weary of net neutrality regulation. Given that the barrier to entry for an individual who is looking to start a blog is very low, an increased cost in internet may price what would otherwise be a successful business out of the market. The internet is such a powerful tool because it gives everyone who connects to it a voice regardless of their socio-economic standing. Blogging tools like WordPress and Blogger offer free website for writers to begin to engage their audiences. That means the only cost that exists is internet service fees. With increased taxes and fees as a result of regulation, those who can barely afford the cost of internet now will be hard pressed to be able to afford it when the price increases. In essence a tax increase on internet access silences the freedom of speech and expression of those who could have been an asset to the industry. In addition to being silenced financially, England shows that government control of the internet may result in citizens being silenced in the more literal sense (Penny, 2014; Ball, 2015; Price, 2015). For a communications professional, any attempt to silence their work is an infringement on freedom of speech and freedom of press.
My role as a communications professional concurs with my personal point of view that net neutrality is unethical and bad policy. From either stand point, the legal and ethical factors that played into my decision to disagree with net neutrality remain constant from my personal to professional understanding of the regulation. Privacy invasion and silenced freedom of expression is something that should greatly concern all Americans; not just one profession or one person. From an ethics standpoint, communications professionals should be concerned about the equity of the speed of their internet connection as well as the cost. Since the internet is so integrated into our personal lives and professional lives, net neutrality carries sweeping implications regardless of what perspective it is addressed from.
For an opponent of FCC’s net neutrality regulation, like myself, it is important to identify what the next steps are in ensuring that the regulation does not have the opportunity to negatively impact society. The Congressional Review Act (CRA) allows Congress the ability to review a major rule passed by any federal agency (“Congressional Review Act FAQs”, n.d.). A major rule, among other qualifiers, is identified as a rule established in which the annual effect exceeds $100 million or more. The Progressive Policy Institute has estimated that the cost of net neutrality will be approximately $11 billion – greatly exceeding the standard for a major rule (Litan & Singer, 2014). Since net neutrality is a major rule, Congress will have the ability to review the regulation. On March 3, 2015 the United States House of Representatives introduced H.R. 1212 – the Internet Freedom Act (2015). H.R. 1212 seeks to prohibit the FCC from moving forward with net neutrality regulation or reissuing a similar rule. The bill has been referred to the House Energy and Commerce Subcommittee on Communications and Technology for review and action.
While Congress pursues a legislative course of action for denying net neutrality –The Wireless Association (CTIA), National Cable and Telecommunications Association, the American Cable Association, and AT&T have all filed individual suits against the FCC in an attempt to challenge the validity of net neutrality (Popper, 2015). CTIA commented on their lawsuit by stating, “With today’s filing, CTIA seeks to protect the competitive mobile marketplace that thrived under a deregulatory framework for decades. The FCC’s new internet rules are full service regulations that will harm mobile consumers and providers across the country, as well as our nation’s wireless future…instead of letting consumers decide the success of new, innovative mobile services, government bureaucrats will now play that role” (Popper, 2015). While of course CTIA speaks on behalf of their own special interest, the concerns they share are echoed by some of neutralism’s staunchest supporters (Morozov, 2011; Spangler, 2015; Glaser, 2014; Litan & Singer, 2014).