It seems that while internet activists and advocates of the free flow of information have been focused on the dangerous and looming Trans-Pacific Partnership, the debate for Net Neutrality has been absent from recent memory. The TPP has the potential to completely upend life as we know it and does warrant a great bit of your attention. However, the persistent debate of Net Neutrality rules has now been brought back front and center.
On Tuesday the US Court of Appeals for the District of Columbia Circuit ruled against rules originally adopted by the Federal Communications Commission in 2010. The rules, known as Net Neutrality, were designed to protect the openness of the internet. The 2-1 decision means the FCC created rules do not apply to broadband services such as Comcast and Verizon, the two companies behind the lawsuit.
The D.C. Circuit decided that the FCC had classified broadband services differently than it does traditional telecommunications companies and could not hold broadband services to the same standard. The FCC used the concept of “common carriage” when developing the basis of the Net Neutrality rules. The concept hinges on the idea that common pathways (the internet, waterways, roads) should be open to all. A business can charge for services using such pathways but they cannot discriminate.
With the internet this means that before Tuesday companies could not discriminate traffic based on a tier system, or payment of a fee. The idea was that the internet infrastructure that provides all internet content should be open to anyone. The end of the rules means that large corporations with deep pocket books could pay broadband providers extra cash to ensure their sites and services stream in excellent quality while viewers of smaller sites could suffer from a lower quality internet experience.
It doesn’t take long to see how this could affect internet censorship. Smaller journalist outfits, or independent entrepreneurial ventures could be blocked from the internet by being unable to pay fees that Verizon, Time Warner or Comcast may eventually impose. There are also fears that the United States government's close relationship to certain corporations could lead to quality experiences of some sites and the slow elimination of websites critical of the government and its policies.
How did we get here?
In 2005 the Supreme Court ruled that broadband services should not be classified in the same manner as telecom services. The idea being that broadband providers’ infrastructure is not considered a public right and not regulated under the concept of common carrier. Based on that decision the appeals court rejected the FCC position that broadband services fall under Net Neutrality rules.
The FCC put in place official rules for Net Neutrality after a failed attempt to fine Comcast based on Net Neutrality principles, but not official rules, that were in place in 2009. Comcast had slowed traffic from the torrent downloading service BitTorrent in order to manage traffic and limit downloads. In April 2010 the same D.C. court ruled that the FCC had no authority to enforce regulations on Internet providers. The case dealt with what many fear will happen in the coming age of tiered internet services.
Soon after, the FCC created official Net Neutrality rules. It was these new rules that Tuesday’s decision concluded, once again, that the FCC does not have the authority to regulate broadband services under. So what are the rules of Net Neutrality and how do they affect you?
The first of three rules required broadband companies to remain open and transparent to customers about how they handle traffic on their systems.
The second rule is designed to keep broadband services from blocking legal content on their networks.
The third rule, and the one which does not apply to broadband services any longer, prevents “unreasonable” discrimination against traffic.
It is important to note that the court did reject a claim by Verizon that Congress did not give the FCC jurisdiction over internet access at all. The court referenced section 706 of the Telecommunications Act of 1996 as giving the FCC authority over the internet. This means that the Commission is free to set rules for standard internet traffic but at this point broadband services are not under their jurisdiction. This goes for all broadband providers except Comcast. In the company's 2011 merger with NBC they agreed to follow the FCC’s Open Internet Rules until 2018.
The End of the Internet or an Opportunity for Creation?
So although this battle is far from over we could begin to see the internet offered to customers at various prices for differing quality, speed, and content. The usual knee jerk reaction to this type of action or inaction by the government is to call for more regulation. Corporations continue to have a growing influence in our lives; from the food we eat, to the clothes we buy and the way we use the internet. It is frightening to think that the free and open internet we have grown to love could be stripped away. But, perhaps, this competition between the corporatist enslavement of our freedoms should be seen for what it truly is: a competition between free, intelligent, creative people and monopolistic, mechanical, corporate governance.
Instead of expecting the United States government of 2014 to hear our cries and pull back the tyranny, we should see this as an opportunity to create new ways of using the infrastructure of the internet and broadband services. Sure, the mainstream World Wide Web may be completely monitored and eventually censored, dull, and irrelevant, but that does not mean innovation will cease. With the open source technological revolution growing daily it is likely that some genius out there has already created the answer to our problems.
Ideas like alternative DNS server projects such as the Open Nic project, mesh networks, the Darknet, and more will stretch the boundaries of what the internet can be. These ideas will be the ones that eliminate the effectiveness of any government regulation anyways. They will also render any silly corporate takeover of communications largely pointless.
Now of course, those who choose to remain in the corporate mainstream culture will be left with the dry, carbon copy versions of music, clothes, technology and yes, the internet. But once the clamping down on individual expression and creation reaches a breaking point the population will seek a better alternative. With the growth of peer-to-peer, open source technology it is only a matter of time before the internet expands into a number of different, competing webs of information.
So spread the word about the looming dangers of censorship and internet favoritism, but don’t forget to remind others that information longs to be free. It is inevitable that governments and their corporate partners will work together to limit freedoms. It is also inevitable that the people will tire of such arrangements, create alternatives, and find ways to be even more free. If you want to keep the free and open internet - fight for it. Create it. Build it.
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