Nothing Neutral About Network Neutrality

In the United States, a typical Internet user would agree that “Internet freedom” is something worth protecting. Complicating the situation, however, are the competing definitions attached to the term. Does Internet freedom mean uninhibited free speech—or only so far as it does not directly harm someone else? Is Internet freedom the lack of government censorship—or equal access guaranteed by government regulation?¹ Is it a negative freedom, such as freedom from interference—or a positive freedom, such as freedom of expression?² A debate is underway in Washington to answer some of these questions.

Central to the controversy is the innocuous term “network neutrality,” the principle that network providers should treat all Internet content equally. In practical terms, this implies that an Internet user could just as easily access his cousin’s seldom-read blog as he could access Google. Network neutrality is the de facto condition in the United States despite a lack of government regulation, but it is not always upheld. In 2008, the Federal Communications Commission (FCC) decided to enforce this voluntary principle. Comcast, the largest Internet provider in the country, had been slowing down a file-sharing website that was clogging its traffic, which the FCC said was not allowed. The resulting lawsuit ended in April 2010 with the D.C. Circuit Court of Appeals ruling that, contrary to its claims, the FCC had no jurisdiction to demand network neutrality.³

This decision was a huge win for Comcast and the telecommunications industry. It upheld their ability, in principle, to enter financial agreements with certain websites and corporations in exchange for preferential access. If carried to its logical conclusion, this could result in a multitiered Internet, with fast connection speeds given to the companies and websites that paid extra fees, and slow (or even no) connection for websites that did not. Comcast has not celebrated its legal victory by inaugurating a new system of fees, but it reserves the legal right to do so.

Simultaneously, the Democratic congressional leadership has been trying to push through legislation expanding the writ of the FCC and ensuring that network neutrality is upheld. A network neutrality amendment was attached to the House Communications Opportunities Promotion and Enhancement Act of 2006, though the final bill that passed did not contain the amendment.⁴ Several other bills on network neutrality have stalled in committee. This is not purely a partisan issue. In May 2010, a group of seventy-four House Democrats signed a letter urging the FCC to wait for “additional direction from Congress” before attempting to establish jurisdiction for regulation.⁵ The letter argued that the focus should be on expanding Internet access, not expanding Internet regulation. Thirty-seven Senate Republicans sent the FCC a similar letter.

Behind the scene lurks substantial lobbying efforts on both sides. Internet titans such as Google and Amazon have publically advocated formalizing the network neutrality position, while broadband service providers such as Verizon, Comcast, and AT&T have thrown their weight against regulation. Of the seventy-four signatories of the aforementioned letter, fifty-eight could count (at least) one of these three Internet service providers among their top twenty campaign contributors.⁶ According to the Center for Responsive Government, a nonpartisan group, AT&T has given more money to political candidates than any other organization in the past two decades.⁷ Interestingly, their donations are approximately split between Republicans and Democrats. Fellow regulation opponents Time Warner, Verizon, and Comcast are also in the top hundred. Microsoft (ranked twenty-seventh) is the only openly pro-network neutrality group on the list.

Historically, Google has been one of the loudest corporate voices in favor of network neutrality. But, it has recently departed from its unconditional support. In August, Google and Verzion released a compromise proposal that surprised and angered Google’s erstwhile allies.⁸ This secret negotiation took place outside the laborious process the FCC was orchestrating with industry heavyweights, including Google and Verizon. The proposal called for network neutrality for broadband landlines but not wireless, a compromise that angers philosophical purists on both sides.

Network neutrality is currently in a state of limbo...