After years of pressure from ISPs, net neutrality is under threat by the FCC itself. Chair Tom Wheeler promised to revive the Open Internet Order after it saw an unceremonious defeat in January, but a leaked version of his latest proposal would let companies pay ISPs for a "fast lane" to subscribers, undermining the spirit of the original rules, which barred companies from discriminating between services. Despite Wheeler’s reassurances, this new proposal is the exact opposite of net neutrality. It could undermine both the companies of today and the startups of tomorrow. It might also be exactly the push activists need to fight back.
The new rules aren’t entirely the FCC’s fault. The January court ruling in a lawsuit by Verizon gave it limited power to regulate broadband providers under existing law, and there’s only so much it can do as long as they’re classified as "information services" rather than common carriers like traditional phone companies. There’s nothing explicitly stopping it, however, from reclassifying these services, which is exactly what net neutrality supporters have been urging it to do for years. The problem is that putting ISPs under the more restrictive common carrier designation would light a political powder keg, pitting proponents of a truly open internet against business advocates who say common carrier regulations would strangle ISPs’ ability to innovate. For the past few months, Wheeler has played it safe, promising a framework that seemed fragile but ultimately inoffensive.
"I’m really worried that what the FCC would do now is both lose in court and fail to protect net neutrality."
The new proposal, though, threatens to codify critics’ worst fears, and it’s spurred many of them into action. In a letter, Senator Al Franken (D-MN) warned that it "would not preserve the Open Internet — it would destroy it." His language is reminiscent of the response to another "internet-destroying" policy: SOPA, the anti-piracy bill that mobilized perhaps the most effective online protest of all time. Like SOPA, these proposed Open Internet rules tackle an issue that’s near to the hearts of both internet denizens and tech companies. And as the FCC plans to officially consider the rules on May 15th, they’re figuring out how to mobilize the same kind of opposition.
Though the company hasn’t confirmed anything on the record, sources say that outspoken net neutrality proponent Netflix has privately brought concerns to the FCC, and that it, Google, and other major players are quietly planning an accompanying publicity blitz. Other groups have been more open. Mozilla, a prominent participant in the 2012 anti-SOPA blackout, has filed a petition with the FCC, asking it to regulate parts of internet service providers’ business under common carrier laws. Mozilla senior policy engineer Chris Riley sees the FCC’s current proposal as the worst of both worlds: by allowing "commercially reasonable" discrimination, it’s allowing ISPs to undermine net neutrality, and by requiring a baseline level of service, it could be stretching beyond the limited authority courts have given it. "I’m really worried that what the FCC would do now is both lose in court and fail to protect net neutrality," he says.
Reddit users have suggested tiered pricing for Imgur cat pictures
If it fails, net neutrality supporters predict dire consequences. "I don't think that Reddit as we know it, and especially the next Reddit, the next small company, will be able to develop and thrive" under the new Open Internet rules, says Reddit general manager Erik Martin. "It's going to basically ensure that the next Facebook, the next Google, the next Reddit is going to be overseas." Reddit, currently one of the 25 most popular sites in the US, also joined the SOPA blackout, and it’s planning a site-wide online protest on May 15th. Nothing is locked down, but he hopes some of the politicians who have spoken out against the proposal will make appearances on Reddit — a statement by Senator Bernie Sanders (I-VT) made it to the top of the site last week.
So far, Redditors have proposed tactics like a satirical throttle on popular image hosting site Imgur, letting visitors see ISP promotions for free but charging anywhere from $9 to $110 for cat pictures, animated gifs, and nudes. Wheeler’s proposed rules wouldn’t let companies outright block services, but the symbolism is clear. "I think the basic idea of giving people a glimpse of what it might look like should this come to pass is compelling," says Martin. "We've all grown up with an internet that is completely neutral and flat, and confronting people with what it might look like if the FCC proposal goes through and we end up losing net neutrality makes a lot of sense."
Every internet issue is 'the new SOPA'
Reddit co-founder Alexis Ohanian is also trying to recapture the spark. He’s currently running a crowdfunding campaign to erect a billboard as close to the FCC offices as possible, similar to the "Don’t mess with the internet" billboard he put in SOPA author Lamar Smith’s (R-TX) home district in 2012 (the current proposal has raised around $15,000 of its $20,000 goal). This time around, he’s also urged people to contact Congress and the FCC, linking to advocacy group Free Press’ "Save the Internet" campaign, which will hold a protest in Washington on May 15th. "We can’t get it wrong, everyone. The internet is too valuable and too important," says Ohanian in a video. "So please, help me, one more time, save the internet."
Ohanian’s rhetoric is diminished slightly by the fact that virtually every internet-related issue of the last two years has been "the next SOPA" — the CISPA cybersecurity bill, the Trans-Pacific Partnership, even the thorny, extremely complicated NSA surveillance situation. Like all these, net neutrality is more complicated than the straightforward SOPA copyright bill. "[SOPA] was just bad in the sense that it was horribly written, it wasn't internally coherent, it was technically wrong on several points, and it was clearly written by the powerful content companies," says Martin. But net neutrality is "complicated and perhaps even a little boring," he admits. "I think once you understand the implications [of the proposal] and that it's going to change the internet as we know it, and once you realize how fragile our ecosystem really is, then it becomes extremely alarming and extremely important. But that takes a little work, to get that across."
And if the protest is to some extent getting the old gang back together, one very important member looks to be sitting things out. The Wikimedia Foundation was arguably the biggest player in the SOPA blackout, cutting off access to its massive US site to demonstrate the bill’s perils. But a spokesperson says that the foundation hasn’t seen high enough levels of community support to justify a public protest against Wheeler’s proposal, though it may file an FCC comment in the future. "We've been talking to folks, and we certainly have people who are interested, but we haven't really seen a response similar to SOPA / PIPA," she says.
Wikipedia may be sitting this round out
Unlike something like NSA surveillance, though, the net neutrality proposal has yet to go into effect. The FCC has already attempted damage control, threatening to reclassify carriers if they take advantage of the system. There are also few issues more dear to the internet community. When Google, a long-time net neutrality supporter, appeared to compromise its position in a joint statement with Verizon, protesters gathered outside its office; more recently, in the wake of Netflix’s direct connection deals with Comcast and Verizon, debate has broken out over whether the policy should be expanded to cover the internet backbone itself.
But it’s hard to even explain the deal itself, let alone its implications. Likewise, when the Open Internet Order was struck down this spring, the FCC and cable companies’ reassurances made it hard to point to specific harm. Opponents have called net neutrality a "solution in search of a problem," pointing to the generally good behavior of ISPs. After the court’s ruling, ISPs promised that they would continue to support an "open internet" — Verizon, whose lawsuit was directly responsible for killing the Open Internet Order, said that the decision would "not change consumers' ability to access and use the internet as they do now." Wheeler’s proposal, by contrast, visibly guts the order — it practically maps out the bleak "pay for play" future we could expect without regulation. If it passes, there’s no going back.
The new proposal practically maps out a "pay to play" future
Many net neutrality advocates, including Martin, hope protesters can pressure the FCC into reclassifying ISPs as common carriers. After seeing the alternative, it’s possible the public will rally around them, coming down hard on the FCC and Congress itself, which has the power to pass new net neutrality provisions or otherwise signal support for reclassification. But Martin would settle for just killing this plan — it’s "certainly not as positive as actually getting reclassification," he says, "but it's much better than the proposal going through."
Mozilla’s plan is more like a kind of regulatory judo. Its petition would leave services provided by an ISP to a user outside net neutrality rules, but it would require it to act as a common carrier for any "remote" services like Dropbox or Netflix — a statement says that would cover "all of our internet activity." If ISPs have opposed reclassification in general, they’ll probably fight just as hard against a proposal that just applies to most of its business. But Mozilla’s plan reflects the gap between the internet that the FCC regulated in 2002, just starting to transition out of the era of AOL web portals, and the one that exists today. "We have a new service here. A new service created by the ISPs, by net network technology," says Riley. "So what is that service?" To ISPs, their service is still that of a gatekeeper, directing traffic through a network. To net neutrality supporters, it’s a utility, like a water pipe or telephone line. And on May 15th, both sides will see the line that they’ll be fighting over in the coming months.