Title II is Not the Net Neutrality You’re Looking For

[Len]

The end is nigh for net neutrality as it exists today. Trump-appointed FCC chief Ajit Pai put forth a plan last week that promises to roll back Obama’s 2015 net neutrality policies. All that’s left is for the five FCC commissioners (three of whom are Republican) to vote in December. They will of course vote along party lines making the end of Obama's version of net neutrality a virtual certainty.

The Obama net neutrality policy is usually seen in one of two ways, depending on which side of the political divide you stand:

A. Another example of the Obama administration’s abuse of executive power, bypassing Congress for a big-government takeover of the Internet in an effort to tell ISPs how to distribute content. The result can only be a stifling of free-market innovations.

B. A necessary step to reduce the monopolistic tendencies of “big data” to ensure an environment of fair competition between established telecom giants and small startups. Obama’s net neutrality plan is necessary to maintain the Internet’s democratization of media.

But like most issues divided down party lines, the truth lies somewhere in the middle.

Post-Net Neutrality Apocalypse

Let’s face it, Obama’s method of giving us “net neutrality” was seriously flawed. Civics 101 Alert! The President cannot create a law without an act of Congress.

Obama didn’t create a law, nor did his administration leave behind an adequate net neutrality framework from any meaningful legal or technical perspective. The relative ease with which the Trump administration has been able to reverse Obama’s net neutrality policy should be an indication that there really wasn’t much there in the first place. To be fair, in 2015 Obama stood little chance of getting a law passed given the serious breakdown at the White House that prevails to this day. Obama’s version of net neutrality was really no more than a shuffling of some policy paperwork leftover from the 1930s. It was never legally binding and leaves interpretation of what exactly constitutes net neutrality up to the vague notions of whatever administration happens to hold office.

The reality of the net neutrality The Internet is so worried about today was no more than a reclassification of broadband Internet service providers to Title II under the 1934 Communications Act, which defines Interne service as a public utility. Ajit Pai plans to put ISPs back to their pre-2015 position of Title I, defining them as information services. All the high-minded ideals about what defines a free and open Internet might as well be crayon scribbled onto the paper-cutout effigy of net neutrality that the Obama administration created. Ajit Pai is just the first to light the match and burn it down.

Net neutrality is a serious issue that deserves serious definition and policy discussion, and serious updates to laws that govern the Internet. We should be thankful that the current administration is only dismantling the current faux net neutrality and that one of the telecom giants didn’t use litigation to bring it down in some future Republican-controlled Supreme Court ruling that may have set back the chances for any real net neutrality legal framework back decades. Obama’s patchwork policy made out of law designed for switchboard telephone technology did net neutrality principles no favors.

The upcoming FCC vote on Title II will not be the end of net neutrality. The nail in the coffin of net neutrality will be hammered in when you, the net neutrality activist, begins accepting gifts like free wireless data to use your carrier’s “partner services” in a scheme called zero rating. The practice of zero rating was stopped in Canada and other countries due to net neutrality concerns.

In a Tizzy Over Net Neutrality

The idea of net neutrality is easy to get behind. Who doesn’t want a free and open Internet? But the levels of hyperbole around this particularly flawed legal expression of net neutrality policy has grown way out of proportion to the threat. Title I of the Communication Act simply means your ISP won’t require FCC permission to make changes to the way it does business. Your ISP always was and will still be required to notify customers of changes to their service. FCC oversight under Title II was never going to guarantee equal access to the world’s Internet data, free speech or competitive business practices.

If the White House can solve its deadlock and get back to the work of governing, perhaps we will see real laws with clearly defined policies developed in our current century to govern Internet communications and grant meaning to the ubiquitous phrase “net neutrality”. But until then, the term is just a vague sentiment printed on a t-shirt.

So, how did we get to the point where the previous administration's reshuffling of depression-era policy is considered by many to be de-facto protection for the sanctity of a free and open Internet? Many believe that any threat to this imperfect policy must be the result of corporate greed and corruption. But even if you’re a huge supporter of the principles of net neutrality, which any rational Internet user should be, is Title II really the hill you want to die on?

Dissecting Internet Policies

How we got here dates all the way back to 1998, when Congress passed the Digital Millennium Copyright Act (DMCA) under the Clinton administration. The DMCA strengthened copyright law for the digital age while respecting the “fair use” doctrine. It also removed liability from online platforms and services for the copyright infringement of its users.

Then, in 2011 two proposals arrived at the White House - Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA). These bills would further strengthen digital copyright law by giving broad enforcement power to seek out and punish violators. The bills were highly controversial, and if passed, would likely have ended Internet privacy and many of the freedoms and creativity we take for granted online. The perceived threat to free speech mobilized online communities to fight the bill. On January 18, 2012, Google, Reddit, Wikipedia and thousands of other website joined in a protest “blackout” demonstration to show solidarity and what the effect of the bill might pose if passed into law. It was a strong show of force that brought attention to the value of a free Internet.

Side-effects of the SOPA/PIPA experience included bringing the term “net neutrality” into the zeitgeist, and pressure on President Obama to do something, anything – no matter how imperfectly hobbled together, to help protect a free and open Internet. A couple of years after SOPA and PIPA died, Obama, now late in his second term, came up with the version of net neutrality we have today. Unfortunately, the reality is that all Obama did was kick the can down the road for some future administration to take Internet law seriously.

Is there room for “big data” to abuse its position as near-monopolies in nearly every region they serve? Hell yeah! But to paraphrase Han Solo: Laying fiber ain’t like dusting crops, kid.

Bringing high-speed service to your door is an expensive, cost-prohibitive investment, and not many areas of the US will ever have the luxury of any meaningful market-based competition. So, there should be room for meaningful policy around Internet services that protects the principle of net neutrality while stimulating investment in infrastructure. But treating Internet with the same legal framework applied to running water is not the net neutrality you’re looking for.

America needs real policy developed for the digital age. It does not need a clumsy federal agency takeover of Internet service using depression-era Law.