At the moment, the US Federal Communications Commission (FCC) is fighting an on-going legal battle with the telecommunications company Verizon over their net neutrality rules, which were initially proposed in 2009, as an addition to the FCC’s 2005 Internet Policy Statement, which outlined the principles of an open internet. Net neutrality is a principle suggesting that all information on the internet should be treated equally, and that access should not be charged differently depending on the content, site, application, or platform used. Crucially, the net neutrality rule forbids ISPs from blocking their users’ access to any form of legal content.
Verizon argues that net neutrality doesn’t just restrict healthy competition between ISPs, but that the FCC has no authority to make the ruling, and that it actually violates their first amendment right to free speech. According to Verizon, the data they choose to transmit (and not to transmit) over their network is a form of speech. They argue that, like newspapers, they should have the right to ‘editorial discretion’ over what content they will and will not allow users access to.
Of course, the ‘editorial discretion’ of ISPs could effectively stop many ordinary people from exercising their right to free speech through the medium of the internet. If the ISPs chose to become the discerning ‘editors’ of the internet, then all sorts of content could be blocked on the grounds that it is distasteful or simply doesn’t fit with the editors vision of what the internet should be. The version of the internet users were able to see would depend greatly on which ISP they chose to use.
At the moment, the validity of the net neutrality rules is still to be decided. Luckily most ISPs have so far chosen not to exercise their editorial control over the internet to any great extent. AT&T have been accused of unfairly attempting to block access to competitors’ sites and of forcing users to pay for unnecessary data in order to use the Apple Service, Facetime, however they have recently agreed to allow some users to use Facetime over their cellular network in a token move to appease the FCC.
The question of who has the right to regulate the Internet has been hotly debated recently, with the failed WCIT (World Conference on International Telecommunications) conference of last year showing just how sensitive an issue it is. Verizon argues that the net neutrality rules proposed by the FCC are just another step towards a more governmentally regulated Internet. Paul Murphy at Zdnet went as far as to suggest that the net neutrality rules are ‘Orwellian,’ and will create a situation where each and every ‘packet you send or receive [will be passed] through a regulatory sieve.’ Many others, including Ryan Radia at Techliberation believe that ‘regulatory intervention is a recipe for entrenching the status-quo’ and that net neutrality will stifle the innovation that has made the Internet what it is today.
The US is not the only country where net neutrality and the open nature of the internet are currently being debated. Last year, most of the UK’s ISPs agreed to adhere to a voluntary code of practice which states that legal content, applications, or services should not be blocked, even if they do compete with a service that the company itself provides. The code also states that companies should be completely transparent about the illegal content or applications which it does block. Virgin Media, Vodafone, and Everything Everything have refused to sign the code, however. It remains to be seen whether customers will prefer an ISP which plays by the net neutrality rules or one that is free to block and slow down the traffic of their competitors. Both Chile and the Netherlands, meanwhile, have passed legislation to ensure that all ISPs adhere to net neutrality rules.
It is thought that a ruling will be made on Verizon’s appeal in the next few months. If their constitutional argument does indeed stand then it will be a strong victory for the private control over the internet by ISPs, perhaps making ISPs the new ‘kingmakers’ of the internet. If the transmission of data by ISPs is indeed considered speech then, in essence, the road to censorship will be wide open in the form of ‘editorial discretion.’ While a governmental ‘regulatory sieve’ is undesirable, a privately edited Internet is surely more so.