The Giant Flowing Tube of the Internet

Feature Article

The internet has always meant to be an open platform, but this founding principle has been under great scrutiny, threatening to change the web as many know it

In the 1990’s, an estimated 3 million people were have thought to be online. Since then, the growth of the internet has been tremendous. The mean annual growth in the number of internet users was roughly between 20% and 50% later on in the 90’s. The decentralisation of authority allowed vast numbers of people to join the network and expand it, which has resulted in around 40% of the total population of the world. In 2011, a report published by CISCO, an American technology company, found that 20,000 or more petabytes worth of data traveled through the giant tube of the internet on a monthly basis.

These numbers portray the enormity of the platform, and therefore the number people, organisations, businesses, governments and others, depend upon it to communicate with the rest of the world. Though its continuously growing enormity has also inflated several debates concerning its existence and its applications to humanity. One of them is net neutrality. This principle suggests that ISPs (internet service providers) and broadband providers alike should treat all internet traffic equally. Essentially it means that consumers should be able to have access to all the websites and content available on the web regardless of the type of content or the method of transmission. This is one of the fundamental principles of which the internet was founded upon, and remains a critical part of the internet experience. Though politicians, and some businesses, have highlighted the problems with this founding principle in an attempt to drastically change how the net operates. For a while now the FCC in the US has attempted to implement new rules to liberate the internet, whereas European regulators have passed laws which permit the prioritisation of certain types of internet traffic. To fiddle with the constitution of the internet would be to change the nature of its workings, and thus a fierce debate has commenced regarding just that; is net neutrality a benefit or a bane?

Third Time Lucky…Maybe

Back in June of 2015 the FCC successfully (on the third try) established rule ensuring that broadband providers would treat all internet traffic the same after failed attempts prior. However the battle still remains; later in December opposers filed suit against the FCC, objecting to the new rules. In this case, heard by the Federal Court of Appeals in Washington DC, the focus was around the controversy of the FCC’s decision to label broadband providers as common carriers, therefore making them subject to the same rules as telephone companies. More specifically, the authorisation of such subjectivity for broadband providers enables the FCC to apply Title II of the Communications Act of 1934, which means that ISPs must provide its services on a non-discriminatory basis, hence enabling the principle of net neutrality to prevail.

The controversy comes from the contentious legitimacy of labelling of ISP’s as common carriers. In the latest court case in Washington DC, objectors claimed that the FCC’s ability to treat broadband providers in the same manner as common carriers, which thus allows them subject those providers to same obligations as common carriers in the US and therefore commit to net neutrality rules, was questionable under the governing statutes. Essentially the objectors highlighted the questionability of whether broadband providers could really be classed as a common carrier.

This argument does hold some validity. In the context of countries which operate under common law, common carriers include anybody who “that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport”. To make broadband providers fit with this definition, the internet shifted to a telecommunications service, making broadband providers no longer considered as information service provider.

This was highlighted previously in a court challenge from 2014 (Verizon vs FCC) in which it was ruled that the government agency did not have the authority to treat broadband providers as common carriers since that they previously classified under Title I of the Communications Act of 1934. Since the Commission had classified broadband providers in such a way which exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from regulating them as such, and therefore are not obliged to commit to net neutrality practices. In this particular case, the FCC tried to utilise the Open Internet Order of 2010 to justify its authorisation to subject broadband providers to a number of rules, including anti-blocking and anti-discrimination requirements. However, as the court pointed out, those portions of the Open Internet Order were dropped.

What the FCC did was essentially completely contradict what it had initially interpreted broadband providers as. Previously in 1998 the Commissions agreed with the US Supreme Court that by broadband providers offering internet access, they should, therefore, be classified as information service provider exempting them from common carrier regulation. Amongst its technical reasoning for this, the FCC stated that labelling internet access as a telecommunications service may result in “negative policy consequences”, implying that regulation would constraint the development of the internet. This provided the court’s premise in Verizon vs FCC in which it highlighted the faultiness of shifting the definition of a broadband provider to subject them to what the FCC feel is necessary regulation.

Fast-forward to the latest obstacle facing the Commission, objectors to the net neutrality rules exposed the lack of legal authority the FCC had in imposing such regulation since the Commission could not enforce such rules without proper approval from Congress. The legislative branch of the US government had not in actual fact established laws which the FCC could enforce upon the internet. Thus, the FCC has tried to apply statutory language which does quite fit the bill. In 1996, Congress determined the distinction between what was considered a telecommunications service and what was an information service. In its specific wording, a telecommunications service is “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” In contrast, information services offer “a capability for generating, acquiring, storing, transforming, processing, retrieving, utilising, or making available information via telecommunications”. With this distinction, Congress confirmed that broadband providers were not subject to common carrier regulation. As this was the last time that Congress had a say on the issue, the FCC is left with irregular legal tools to fiddle with in its defence of net neutrality.

The Cost of Clogged-Up Tubes

Most of those who oppose net neutrality would perhaps point out the most significant con of the principle which is that it encourages greater congestion, straining the ability of ISPs to provide their service adequately. For example, when 4 apps utilise the same node at the same time, ISP’s have to decide which data packet goes through first, creating a delay. The delay may only be milliseconds, meaning a jitter in a video stream, or an unnoticeable delay in the time it takes for an email to come through does not induce any significant disruption. However, if one of the four data packets belongs to a medical app in which a surgeon is using to communicate instructions for an important medical procedure, then even a millisecond delay can be problematic. This is very much the reasoning behind Europe’s latest move on net neutrality, allowing the prioritisation of certain traffic such as telesurgery. The argument here is that it is imperative that important services like this can be communicated through the internet without being obstructed amongst the petabytes of data passing through the veins of the world wide web so that they can justifiably fulfil their importance.

For the ISPs themselves, the increasing amount of internet traffic which they have to cope with piles on more financial pressures. A report by New York University School of Law predicts that the FCC’s net neutrality rules will cost the US economy $62 billion over the next five years. Furthermore, the continuation of an open internet may stifle investments. By not being able to charge better-access fees, it discourages ISPs from investing in new technologies, such as fibre-optic networks, to take advantage of the enhanced capabilities they can offer simply because ISPs would struggle to gain a return on such investments. As Marc Anderson, an American entrepreneur and software engineer, put it: “If you have these pure net neutrality rules where you can never charge a company like Netflix anything, you’re not ever going to get a return on continued network investment — which means you’ll stop investing in the network”.

All these arguments against an open internet provide the basis for Europe’s decision to go in the opposite direction of its American counterparts. Broad parameters determining what can be classed as ‘specialised’, and therefore permitting internet traffic fast-lanes for those services, allows for essentially any kind of internet service to enjoy prioritisation, eradicating the idea of net neutrality.

Despite pushing for stronger net neutrality rulers, European politicians have failed to team up with the European internet and technology industry, thus providing insufficient political force to encourage such legislation. Instead, less strict neutrality rules allow ISPs in Europe to accumulate the finances needed for greater investment, helping to ease the apparent financial burden American broadband providers may face as a result of mandatory neutrality regulations.

The Fruits of Freedom

“If Internet access providers can block some services and cut special deals that prioritise some companies’ content over others, that would threaten the innovation that makes the Internet awesome”. These were the words of Google, after a long silence in 2014 while the net neutrality debate stirred along. Indeed, an open internet can be awesome, and its benefits have prevailed since the birth of the giant web.

One the advantages net neutrality provides is that it can encourage and help maintain competition. If ISPs are able to restrict access to certain websites and content, including those belonging to competing companies, it results in an environment lacking the competitiveness which can better the market. If an ISP zero rates their own video services (meaning ISPs do not charge customers for data used by specific applications or internet services through their network), then consumers will find that they are limited when it comes to accessing content from a website not affiliated with the internet provider. A competitive market does just provide better services for consumers, but also incentivises companies to improve the quality of its service which contributes to a universal economic benefit. By allowing everyone to take advantage of the same initial opportunities and by establishing a level-playing field, the survival of such companies is determined by the neutral market forces of demand and supply, as opposed to being dictated by deal-making. Consequently, more established companies will be able to pay, and those smaller ones who cannot wither away.

In addition, net neutrality injects greater innovation into the marketplace. The implementation of fast-lanes creates high barriers to entry which restricts access to the tools for innovation which the internet has traditionally been able to offer. This would be of particular usefulness in Europe, a continent which has struggled to really advance its technology industry. An open internet would allow European start-ups to be free of expensive upfront funding, allowing them to more easily flourish and survive, generating greater positive and long-term economic effects.

Apart from these economic disadvantages of a lack of net neutrality, the ultimate disruption it causes is to the freedom and onenesses the internet has forever been able to provide. It is a platform utilised by billions to communicate with each other, and access information easily and cheaply. When someone needs a recipe for a cake, they can visit a cooking website, or look up a YouTube video. If you want to share photos from a family holiday, you go to Facebook or Instagram. All these services form an important of peoples lives and so to rid people of that unless they are willing to pay is to rid them of their freedom in a sense. Small businesses, musicians, artists, educators, entertainers, bloggers and a whole array of people are disadvantages with the absence of an open internet.

Still a Work in Progress

During the passing of neutrality rules in February 2015, the FCC Chairman Tom Wheeler announced that “the time to settle the net neutrality question has arrived.” Though a significant step was taken in establishing net neutrality in the US, it is far from settled. Many more court cases and legal challenges are to come over the issue. This may also be the case in Europe since Britain’s renegotiation with the EU involve the reductions of European regulation which obstructs business in the area. Public opinion is firmly on the side of neutrality, but even this cannot guarantee its success. The emergence of the issue has planted the seed for more argy-bargy within the political systems of both sides of the pond. It has certainly united the internet technology companies against the dominance of broadband providers like Comcast and Verizon. The clash will produce a feisty tussle, one which my produce radical legal shifts. The internet has never had a central authority solely controlling and regulating it. Thus everyone wants to chip in a try to grab as much control as they can, recognising the immense importance capability and indeed profitability of the platform. Eliminating commitments to net neutrality would be the elimination of one of the internet’s founding principles which the world has become accustomed to. But chaining times and its evolution continue to spark debates about how it should work. Whatever the eventual outcome of this matter, it will certainly toy with the internet as we all know.