Net Neutrality's Impact on Free Speech

Last month, the FCC released its proposal detailing how it intends to protect Net Neutrality in the wake of the court ruling that overturned its Open Internet Order.

The proposal repeated FCC pronouncements about the importance of preserving an open Internet and professed concern over what would become of the Web should it be segmented into fast and slow lanes. All the while, the rules offered solutions that would indeed create a two-tiered Internet.

According to the Pew Research Center, half of all Americans cite the Internet as their main source for national and international news. For young people, that number is 71 percent.

I do not mean to imply that we have reached a point where newspapers are becoming obsolete or that broadcast television is a relic of the past. Much of the news online still comes from broadcast and print outlets, either on their own websites or on other sites that "aggregate" and repeat their content. But the Internet is undoubtedly shaping how we distribute and consume the news today. The future of journalism is inextricably linked with the future of the Internet.

That is why Net Neutrality matters and why publishers, journalists and everyone who seeks to influence or contribute to our shared culture should be worried. For newsrooms, the FCC's proposed rules mean that a company like Verizon could decide where its users can go for news and what stories get buried online. Verizon could strike a deal with CNN and hinder its subscribers' abilities to access alternative news sources. Or, once its merger conditions expire, Comcast could slow access to Al Jazeera because it wants to promote its NBC news offerings.

Computer scientists at Microsoft have shown that people will visit a website less often if it's slower than a rival site by more than 250 milliseconds. That's a blink of an eye. The absence of Net Neutrality means that Internet service providers will have the power to silence anyone who cannot or will not pay their tolls.

And that is why, in 2010, Senator Al Franken called Net Neutrality the First Amendment issue of our time. No journalist or creator should be subject to the commercial or political whims of an ISP.

True, many of the biggest media companies may be able to afford to pay for prioritization. They may even like the idea because their deep pockets can ensure their content continues to be seen. But it's not the big guys we should be afraid for. We should be afraid for independent journalists, rising stars and diverse voices who have grown up with and thrived on the open Web. And we should be afraid for the people who listen to and depend on those voices.

The FCC is currently accepting comments on its proposal. The next few weeks present a formal opportunity for the agency to hear from the public. The FCC has mostly heard that its plan to allow fast and slow lanes on the Internet is unacceptable. And as an agency tasked with facilitating communications and safeguarding the public interest, it is critical that the FCC hear from those we all rely on to get the information we need for our health, happiness, and prosperity -- the press.

"It's not the big guys we should be afraid for. We should be afraid for independent journalists, rising stars and diverse voices who have grown up with and thrived on the open Web. And we should be afraid for the people who listen to and depend on those voices."

It's important to remember that the court didn't say that Net Neutrality was a bad idea, or that the FCC had failed to make the case for the need for such protections. The court simply said the FCC had used a legal theory that could not support the blocking and discrimination prohibitions in the 2010 rules.

Rather than overhauling that legal theory, and returning the agency to the much stronger grounds available to it in the Communications Act, FCC Chairman Tom Wheeler has to this point said he just wants to tweak the legal argument and re-adopt the same rules that were just thrown out. What does that mean for protections against blocking and discrimination by ISPs?

First, on blocking: The FCC proposed to re-adopt the text of the no-blocking rule that was contained in the 2010 Open Internet Order. So, blocking lawful content, applications, services or non-harmful devices would be prohibited for wired broadband providers.

Wireless providers get off easier, and are prevented only from blocking websites and services that compete with their own voice and messaging services. So blocking a news "app," as opposed to a website, would be perfectly acceptable under the proposal. If that seems to make no sense, that's because it doesn't.

But if we consider the no-blocking provision to be effective on its own terms, we have to recognize just how paltry it is if ISPs may still negotiate with edge providers to reach differentiated arrangements. In that discriminatory world, a blocking prohibition has no practical effect. Sure, ISPs may not block you outright, but they may discriminate against you until you are obsolete.

And yes, the FCC's proposal explicitly allows and even invites ISPs to violate Net Neutrality by discriminating against anyone who wishes to reach their subscribers.

What the FCC may see as the no-blocking rule's saving grace is that it would require a minimum level of access for all comers. This hope rests on shaky legal grounds, and stems from speculations made by the FCC's lawyers in court. Two judges on the appeals court that struck down the old rules thought that the FCC might be able to require such basic service under its current proposal and the "tweaked" legal theory.

The third judge thought that re-adopting the no-blocking rule as the FCC proposes to do here would land the FCC right back in the same place -- that is, with a rule that it can't enforce.

Yet even if it could legally require some minimum service tier, the FCC's proposal makes no sense from a practical or technical standpoint. The FCC is purporting to go along with the D.C. Circuit's guidance and the FCC acknowledges that under the Court's approach, ISPs would not be obligated "to actually provide an edge provider with the minimum service necessary to satisfy the rules." Any and every edge provider could be upsold to a service that exceeds the bare minimum, because ISPs would be free to craft arrangements with individual edge providers, charging those who are similarly situated completely different prices for the same service.

Technically speaking, to ensure that a "minimum level of access" is an enforceable standard, the FCC proposes to define the term as a requirement that ISPs apply no less than their best efforts to deliver traffic. ISPs would be free to negotiate better than typical delivery with edge providers, while supposedly being prohibited from degrading or blocking anyone. However, creating fast lanes for some automatically creates worst-efforts for those who cannot afford the fast lanes. Delivering Web traffic is a zero-sum game, and speeding up one site's traffic necessarily means slowing down someone else's. This is antithetical to a neutral net.

The loopholes allowing for a segregated Internet are just those contained within the no-blocking provision -- what is supposed to be the strictest portion of the proposed new rules. When we get deeper into the FCC's Notice of Proposed Rulemaking, or NPRM -- to the discussion surrounding discrimination -- it becomes apparent that the Internet as we know it will cease to exist if the FCC goes ahead with its current plan.

The FCC calls encouragement of individualized negotiation an "essential element" of its proposed approach. To try to counter the harms that will inevitably flow from those negotiations, the Commission says it will limit ISPs to "commercially reasonable" practices. But the D.C. Circuit has already said that "commercially reasonable" means ISPs have substantial wiggle room to make individual deals and discriminate among content providers. With the "commercially reasonable" standard, the FCC is explicitly allowing for paid-prioritization deals.

Still, the FCC seems to think that it can somehow escape endorsing paid prioritization if it identifies factors that the agency will use to administer the commercially reasonable standard. Proposed factors include the impact on present and future competition, the extent of an ISP's vertical integration, the impact on consumers, and the impact on speech and civic engagement. And this list goes on, creating a maze through which all those who wish to engage with an ISP's customers would have to navigate.

But what if a content provider doesn't negotiate with an ISP, either because it doesn't want to spend the time finding its way out of the FCC's maze of commercial reasonableness, or because it cannot afford to?

The NPRM poses this question and in doing so, the Commission inadvertently cuts to the heart of the problem -- that the proposed rules effectively impose an obligation to try to negotiate with each and every Internet service provider in the U.S. Should you refuse to deal, you risk discrimination. What's more, there is an added layer of unfairness for customers of smaller ISPs. If edge companies decide that it's only worth it to negotiate with the biggest ISPs that reach most of America, customers of smaller ISPs may have a far worse experience than others.

So how could the FCC salvage real Net Neutrality?

The FCC claims to be following the D.C. Circuit's instructions in concluding that discrimination must be allowed. In doing so, it has chosen to "tentatively conclude" that the best way to save Net Neutrality is to ground its rules in the authority provided by Section 706 of the Telecommunications Act as opposed to Title II of the Communications Act, which sets the rules of the road for common-carrier services. And by "tentatively conclude," I mean that the FCC has pretty much made up its mind. The Commission, or at least Chairman Wheeler, is convinced that it's just not time for Title II.

Some may think that's the wrong characterization of the FCC's stance on Title II. After all, in the weeks following the first media reports that the chairman's proposal would end Net Neutrality and the ensuing public outcry, the chairman went back and added language to his proposal asking "questions" about Title II. But it's only asking questions and the proposal is to rely on Section 706, with the stated intent being to avoid regulating broadband providers as common carriers.

It's confusing that the chairman is dead set against reclassifying ISPs as common carriers when his public-facing rhetoric implies that he does indeed believe ISPs to be common carriers.

At the May meeting where the Commission unveiled its proposal, Chairman Wheeler said "Let's look at how the Internet works at the retail level ... The consumer accesses the Internet using connectivity provided by an Internet service provider. That connectivity should be open and inviolate; it is the simple purchase of a pathway. I believe it would be commercially unreasonable -- and therefore not permitted -- for the ISP not to deliver the contracted-for open pathway."

The "simple purchase of a pathway" is merely a popular translation of the legal definition of a common-carrier telecommunications service: a service offered to the public that enables the transmission of information of a user's choosing, between points specified by the user, without change to the form or content of the information.

Wheeler's conception of "how the Internet works" is thus very important. If we accept his definition, there's no room for debate: Broadband is a Title II common-carrier service, and broadband providers are legally barred from "unjust or unreasonable discrimination" and cannot "give any undue or unreasonable preference or advantage to any particular person or classes of persons .... "

Beyond how the Internet works, how we use it also speaks to the reality of broadband being a common-carrier service.

The open Internet has become the principle medium through which we express ourselves and through which we access information. The Web is our debate hall, it is our printing press -- it's our paperboy. Journalists, artists, governments and innovative thinkers have relied on the open Web to collaborate and to usher our culture into the future.

But broadband providers are not the Internet. They are simply the conduit and the pathway that we use to get online. To install broadband providers as gatekeepers of that open platform strips communities and individuals of their power and hands it to corporate behemoths like Verizon, AT&T and Comcast. What were once rights to access and disseminate information may become privileges of a chosen few.

And this country was founded on those rights and in acknowledgment of our basic need for our speech to be delivered without discrimination. Press freedom has always gone beyond merely the freedom to print the news. Press freedom has also been concerned with the ability to disseminate that speech through the premier common-carrier network of our founders' time -- the postal service. Just as the ability to access that network was central to our founders' ability to self-govern, the open Internet is central to ours. Today, Verizon claims that it is more like a newspaper than a phone system -- that it has editorial discretion over the content it carries.

This is why we urge Chairman Wheeler and his fellow commissioners to correct course and reassert the FCC's clear authority over our nation's communications networks.

Safeguarding free speech rights cannot be left to the whims and bottom lines of self-interested corporations. And if corporate interests are allowed to pick winners and losers online, it does not require much guesswork to predict who the winners and losers will be. The winners will be those who can afford to pay to play and those speakers who do not wish to threaten the system that has allowed corporate interests to amass such disproportionate control of our government and of our daily lives. Translation: The winners will be deep-pocketed content companies and those who look like the men in charge at ISPs.

The losers will be the young up-and-comers, the black and brown creators who lack access to capital and the connections to get their ideas off the ground, and anyone who dares to speak truth to power. Closing the Web is a step backwards not only for freedom of speech, but also for diversity of thought. Gutting Net Neutrality means regressing toward a shameful era in our history when the ideas and beliefs of the majority were unabashedly valued over those of minorities. Gutting Net Neutrality means that revolutionary Internet ideas, which have historically come from cash-poor outsiders, will die in their infancy.

Without an open Internet, investors might not have backed Nate Silver's Five Thirty Eight or Ezra Klein's Vox. Without an open Internet, and without the prospect of investment in his visionary reporting, we may never see what else Ta-Nehisi Coates could do. We should not have to live with this fear.

It seems the goals of Wheeler's proposal are the right ones. But he has failed to appreciate the impact of his proposed rules not just on innovation, but on our fundamental rights and the fabric of this republic. All of us need to show the FCC and Chairman Wheeler how what they have proposed fails to live up to their rhetoric and our standards for democracy. We need to tell the FCC that we will not go quietly and that we will fight as if our livelihood depends on it. Because it does.