Network Neutrality Can't Fix the Internet

In a new video advocating for network neutrality—a name for regulating internet providers like public utilities—the American Civil Liberties Union declares that “giant internet companies shouldn’t have the power to mess with what we read, watch, and explore online.” The ACLU is referring to broadband and wireless carriers like Comcast and AT&T, who would have the power to throttle, charge for, or even block access to services, websites, or other online resources if the Obama-era rules are rolled back.

Yesterday, Federal Communications Commission chairman Ajit Pai announced the agency’s plans to do precisely that. The plan will likely pass along party lines at the next FCC meeting December 14.

It makes sense to construe broadband and wireless providers as common carriers, like telephone companies and utilities. And a majority of Americans, no matter their affiliation, support regulating internet providers in this manner. But advocates must also acknowledge that the internet is hardly a healthy environment for competition, consumer protection, and equity of use even with net-neutrality guidelines in place.

* * *

There’s reason to believe that internet providers will abuse their power absent net-neutrality oversight: They have a history of doing so.

In 2007, Comcast throttled traffic to BitTorrent, a popular peer-to-peer service used (both legally and illegally) to distribute entertainment content in competition with Comcast’s cable business. The FCC ruled the practice illegal in 2008, but its complaint against Comcast was ultimately dismissed due to a lack of regulatory authority to intervene in such cases. In 2012, AT&T blocked FaceTime, Apple’s video-chat service, because it competed with AT&T’s telephony offerings. The company reversed course after the threat of an FCC complaint on net-neutrality grounds. In 2014, Netflix filed an extensive opposition to the Comcast–Time Warner Cable merger, revealing that it had paid for direct access to Comcast broadband customers in consideration for delivery of its bandwidth-intensive streaming service. And in 2016, the FCC flagged AT&T for excluding DirecTV—a unit AT&T owns—from its customers’ data allocation.

To prevent such blocking, throttling, and pay for play in internet content delivery, the FCC published the Open Internet Report and Order in 2015, declaring internet service providers common carriers under Title II of the Communications Act. It is these protections that Ajit Pai—who previously worked for Verizon, a company that could benefit from the change—hopes to withdraw.

Co-opting language common to net-neutrality proponents, Pai claims that reversing net neutrality will “restore internet freedom.” Republican commissioner Brendan Carr adds that the plan will remedy “the Obama-era FCC’s regulatory overreach.” But Democratic commissioner Jessica Rosenworcel called the plan “ridiculous and offensive.”

If the commission gives the new rules a nod next month, consumer groups will likely challenge them in court. But if the policy takes effect, broadband and wireless providers could resume blocking or throttling content, and they could establish “fast lanes” for content providers who pay fees for special access to online consumers. In theory, internet providers could also slice up internet service into paid tiers, charging consumers more for popular services. Even so, under the FCC’s proposed rules, the carriers must disclose any restrictions or preferential payments.

* * *

Net-neutrality proponents often call the regulated internet “free and open,” ideals that trace back to the libertarian origins of personal computing and cyberculture. Under this precept, computing and the internet are meant for everyone, and anyone should be able to use them to take a swing at personal or professional success. It’s because of this supposed freedom and openness that successful companies like Google and Facebook were viable in the first place—access to customers absent gatekeepers. Indeed, net-neutrality proponents often cite start-ups as a first or primary justification for the policy. Netflix can afford to pay off Comcast at any price. But what about “the next Netflix?”

This story made some sense in 2005, when the FCC first offered positive policy guidance on net neutrality. The dot-com crash was a recent memory, Google had just gone public, and News Corp had just acquired the big social-network company of the time—Myspace. It made some sense in 2008, too, when the FCC pursued Comcast over BitTorrent, and in 2012 when AT&T blocked FaceTime. It even made some sense in 2015, when common carriage for ISPs was formally established. Net neutrality’s popularity has always relied on the public’s satisfaction with life online, and the business practices that facilitated it. Otherwise, there would be no reason to protect it from supposed destruction.

Until recently, that satisfaction was almost universal. Companies like Google and Facebook enjoyed widespread public trust and support. They often appeared to share the same “free and open” values that net-neutrality proponents celebrate. By contrast, everyone loves to hate telcos like AT&T, Comcast, and Verizon, old-economy oligopolies with terrible customer service that charge high prices for mediocre services.

But that’s changed over the last year, as security breaches, privacy violations, election meddling, wealth inequality, and a host of other concerns have sullied the tech sector’s reputation. The examples are so numerous it’s impossible to list them anymore. Here’s an ironic example: Hundreds of thousands of stolen and fraudulent identities reportedly corrupted the FCC’s own net-neutrality comment process. Or consider two cases that came to light just yesterday, the same day Pai announced the FCC’s plans to gut net neutrality: Android devices apparently have been sending their users’ locations back to Google, even with location services disabled; and Uber reportedly paid hackers $100,000 to cover up a personal-data breach of 57 million of its customers. A public darling during the Obama years, when net neutrality won out, the tech industry has effectively become Big Tech, an aggressor industry along the lines of pharmaceuticals, oil, or tobacco.

* * *

It’s true that one set of giant internet companies, like Comcast and Verizon, can’t currently mess with what people read, watch, and explore online. But another faction of giant internet companies can and do exert that power and control. Google, Facebook, Apple, Amazon, Netflix, and others manage access to most of the content created and delivered via broadband and wireless networks. Google appears to handle over 63 percent of searches, and it is projected to control 80 percent of the search ad market by 2019. Facebook exerts enormous control over access to news online, and its unmanaged ad network appears to have torn democracy asunder.

Net-neutrality telecommunications policy might benefit the public by providing impartial access to online services. But even so, Big Tech’s stranglehold on those services puts the lie to the underlying freedom and openness those services ultimately offer. When it comes to ISPs, a more effective solution would involve local-loop unbundling—requiring telcos to lease last-mile connections to competitors. Even if that worked and a thousand broadband providers bloomed, the internet would still operate in fundamentally the same way. All the internet Davids might not have to pay for placement with the telco giants, but they must do so to the tech Goliaths.

Local retailers have to manage their searchability on Google, or pay for ads to compete with big companies like Amazon. Restaurants must make sure they’re listed on Google Maps and Yelp and OpenTable. Creating a mobile app requires payment of registration fees for listing products on the Google or Apple app stores, and a substantial commission on every sale or subscription. AT&T shouldn’t block FaceTime, but Apple has also disallowed the publication of apps that compete with its services. And as for the “next Netflix,” so much capital is now required to acquire customers for a successful start-up, the very idea of a bootstrapped one might romanticize an ecosystem long gone. It’s absurd to think individual people or small businesses could bend Google or Facebook or the like to their will.

That’s just old-fashioned capitalist competition, of course, not a violation of common carriage under the FCC’s purview. But the Commission’s desire to shift responsibility for internet-provider regulation to the FTC suggests an overdue need to bolster net neutrality with other regulatory oversight—including antitrust, an area the last administration ignored while Obama killed it on social media.

Removing ISPs’ common-carriage designation would open the door to antitrust regulation of telcos by the Federal Trade Commission. That’s where Pai thinks anticompetitiveness should be adjudicated, which is cold comfort for internet advocates.

So is Trump’s chaotic interest in antitrust. Over the last year, the White House has suggested that Amazon in particular should be investigated for antitrust violations. Admittedly, Trump’s distaste for the company might be motivated by personal rather than policy interests—Amazon CEO Jeff Bezos also owns The Washington Post, which has published reporting critical of the administration.

In another move that seems contrary to the FCC’s support of telcos via a net-neutrality rollback, on Monday the Justice Department sued to block a merger of AT&T and Time Warner, a deal that the DOJ claims would unfairly benefit DirecTV. In this case, too, some have speculated that the administration really hopes to punish Time Warner–owned CNN, a network Trump famously despises. The Obama administration might have given tech too much freedom, but Trump’s disorganized maelstrom hardly counts as policy, either.

* * *

Network neutrality would probably only aid in remedying the tech sector’s ills. It could clear the way for new companies with different commitments to security, privacy, advertising, and social responsibility, for example.

But even if that’s the case, the turning of the tides in tech reveals how imbalanced power online has become, even after several years of legitimate common-carriage protection. During that time, tech’s worst habits have only worsened, and its oligopolistic power has only increased. All those hypothetical “next Netflixes” only hope to be acquired by Netflix, or Google, or Facebook anyway.

It’s hard to square this reality with the simplistic righteousness of net-neutrality supporters. “URGENT,” reads a social-share preview image for one advocacy website, “If you’re not freaking out about net neutrality right now, you’re not paying attention.” Some proponents even compare the twilight of common carriage to the state-sponsored censorship of the internet in China or North Korea. Yes, internet service providers should be regulated as common carriers. But though necessary, that solution isn’t sufficient.

It never has been. Way back in 2014, even before common carriage for ISPs was realized, I floated the same argument here at The Atlantic: “Common carriage is sensical and reasonable,” I wrote. “But there’s also something profoundly terrible about the status quo.” But then as now, even despite the revelation of endless calamity at the hands of the industry that has benefitted from a supposedly free and open internet, questioning the legitimacy and justice of that freedom and openness is still considered obscene.

If the internet is to remain a public utility, it must also become a public utility worth using, and one that doesn’t dismantle the society that would use it through neglect and deceit and malice. It’s time to stop treating the internet as a flawless treasure whose honor must be protected from desecration. It hasn’t been such for a long time, if indeed it ever was.