The Red Wire: On This New Frontier, Net Neutrality’s An Endangered Species

net-neutrality-endangered-speciesThe District of Columbia Circuit Court last week handed down a long-awaited decision in Verizon v. FCC. Ruling in favor of Verizon, the court struck a blow to net neutrality when it said that the FCC could not impose common carrier restrictions on ISPs without properly classifying them as such under the Telecommunication Act. The history of the case in terribly mundane and basically boils down to the fact that the FCC dropped the ball on net neutrality through two successive presidential administrations, forcing ISPs to abide by rules that shouldn’t have applied to them because of how the FCC chose to classify them. The Verge’s Nilay Patel summed up the FCC’s record in the case succinctly: “Bullshit built on cowardice and political expediency…(b)ullshit built on the wrong words.”

The public posts from Verizon, AT&T, Time Warner, and Comcast all used similar language expressing their “commitment” to an “open” and “unfettered” internet – words that sound nice but, conveniently, carry no legal weight whatsoever. One company or another can pledge to hold to some old principle about such openness, but without a binding agreement they’ll drop those promises the moment that a competitor decides to do the same and gains an advantage in the process. Eventually the ISPs’ well-paid lawyers will figure out the optimal way to frame their case for squeezing ever more dollars out of networks whose costs were long ago sunk. They’ll call it “innovation,” despite having been so allergic to innovation over the past decade that the United States, which invented the internet, now lags behind much of the developed world in access to fast, modern broadband connections. (Verizon has already begun priming that pump. In its reaction after the DC Circuit issued its opinion, the company said the ruling wouldn’t hurt net neutrality because “consumers will have more choices to determine for themselves how they access and experience the Internet” – worthless corporate mumblespeak whose real meaning is still TBD.)

The issue of net neutrality would be rendered basically meaningless if we treated it like the utility that it has become in our increasingly wired society. (There’s a reason we basically never hear about “water neutrality” or “electricity neutrality” or “telephone neutrality.”) That was what the FCC was supposedly trying to do, but the goal is now out of reach for the near future thanks to a political bungle parade of epic proportions. Even even if the rules are eventually changed to reflect how vital the internet is to a growing number of Americans, it’s going to take a while. Consider that from the FCC’s initial misstep in classifying the ISPs to last week’s Circuit Court decision smacking down the Open Internet Order, dismantling net neutrality through regulatory incompetence was a 12-year-process. Even the rosiest of scenarios for restoring an open internet will take several more years. That’s a long time for the ISPs to figure out ways to argue that the net’s primary purpose is as an entertainment delivery network, arguments they’ll then use to lock down and monetize the internet.

Many people online who have recoiled in horror from the prospect of the ISPs slicing and dicing their net access have pointed to a recently re-viralized 2009 infographic by a redditor named quink. It reads like a document from some dark alternate universe designed by corporate lawyers and accountants, artificially limiting Americans’ choices in information by how much they’re willing to pay for access in the same way cable companies dole out packages of channels instead of letting subscribers only pay for what they want to watch. What should be far more disturbing is something from the universe we actually live in: the model that American tech giants have been using in the developing world, where mobile access is all that most users have and even the worst overpriced broadband access available in much of the United States would be considered luxurious. Both Facebook and Google have created “walled gardens” in Asian and African countries, striking deals with mobile carriers to offer users free but extremely limited access to the internet through special branded portals. Instead of accessing the entire internet, these users get the internet that corporate portals like Facebook Zero and Google Free Zone choose to show them. With no rules in place to prevent such “innovation” in America, it’s hard to imagine one of the big companies not finding a way to implement such a rollback and call it a new choice.

Whatever the net looks like 10 years from now, it’s not likely to be truly open in the way that long-time users have known. Beyond the capacity for corporations to screw things up, the DC Circuit’s ruling is potentially a lot more troublesome because of what it implies for the FCC. Though the commission’s Open Internet rules were struck down, its chairman quickly spun the decision as a victory because it confirmed his agency’s right to regulate the internet. Given the history that led to the case, though, there’s no reason to believe the FCC currently has or will suddenly develop the political will to put up a fight against whatever the ISPs “innovate” between now and whenever its new rules are formulated. The worst-case scenario would be new FCC rules that fail to spark any rebellion at all from the ISPs. If it somehow doesn’t kowtow to the ISPs – if, somehow, it comes up with tough regulations to protect a free and open internet – the FCC could still face another lawsuit that could take several years to resolve. The wide plain between these two extremes is made of options that will be designed by the ISPs to bleed their customers as efficiently as possible. None of these potential cases are a clear favorite right now, but there’s no doubting that true network neutrality is now a serious underdog moving forward.