Professor Eileen Kane explains why we need to understand Net Neutrality

What is net neutrality?

Although most Internet users are not familiar with the concept, network neutrality (“net neutrality) has been a background principle of the Internet experience. Basically, it means that all data traveling across the Internet is treated equally in terms of speed and quality of delivery. The Internet service providers (ISPs) that offer Internet access generally do not interfere with the delivery of Internet content by adjusting access, speed, or quality of transmission based on the content. The ISPs have therefore been “neutral” in their delivery of content to users. This model – sometimes called the “Open Internet” – has been successful in laying the foundation for a vibrant and innovative Internet. However, just this year, the Federal Communications Commission (FCC) Commissioner has opened the door to a potential endorsement of a less-than-neutral model of Internet delivery, and that possibility has set off a firestorm of debate and public comment on the meaning and necessity of net neutrality in order to maintain the Internet as we know it.

What are the proposed changes?

Net neutrality developed organically from a generally decentralized model of Internet operation – no mission control or centralized entity dictated how the Internet would function. However, any ISP that offers the service of Internet access could theoretically decide to alter speed or quality of delivery depending on the content.

So, for example, in 2007, Comcast began to interfere with content delivery from BitTorrent, which is a well-known Internet site that was hosting and transmitting a significant amount of material that likely infringed existing copyrights. Comcast began to “throttle” BitTorrent content – it deliberately degraded the transmission quality so as to make use of the site more problematic and less desirable. In response, the FCC censured Comcast, and Comcast took the matter to court. The U.S. Court of Appeals for the D.C. Circuit ruled that the FCC lacked the statutory authority to impose net neutrality on Comcast. In response, the FCC issued an “Open Internet” policy in 2010 that reaffirmed its commitment to the principle of net neutrality. However, in a later case decided earlier this year, the same court upheld a challenge by Verizon to the 2010 “Open Internet” policy.

The FCC derives its statutory authority to regulate communication services from the 1996 Telecommunications Act, which creates two categories of services: “telecommunications services,” such as the phone networks, which are defined as “common carriers” and required to offer access to their networks on a nondiscriminatory basis, and a second category, called “information service providers,” which are not regulated extensively. To date, the FCC has classified the ISPs as “information service providers,” and that classification has therefore limited the authority of the FCC over ISP practices. The FCC does have the option to reclassify ISPs, and that maneuver has been suggested by some advocates of net neutrality.

 A federal court ruled that the FCC does not have the power to regulate the Internet the same way it regulates phones, when the FCC attempted to write the rules requiring net neutrality. So why are they now proposing rules to allow ISP’s to treat traffic differently?

In response to the court rulings that limit the FCC’s ability to impose the standard of net neutrality, the FCC has asked for comments on whether it should allow ISPs to engage in “paid prioritization” – whether ISPs could strike deals with content providers (for example, Netflix or Amazon) to create “fast lanes” for the delivery of their content. Such “fast lane” deals would give these companies clear advantage in attracting Internet users. However, the establishment of fast lanes and slow lanes is contrary to the principle of net neutrality, and formal recognition of content prioritization would be a break with the existing model of content delivery. If such a scheme is allowed, there is also a potential for ISPs to strike lucrative deals with large content providers that would put small startups and innovators at a competitive disadvantage. Already, even without a formal go-ahead from the FCC, there are deals in place between ISPs and content providers, such as the deal this year between Netflix and Comcast, in which Netflix is paying Comcast for faster and more reliable access for its subscribers.

Why were these changes to net neutrality proposed?

The FCC has been trying to get a handle on regulating how ISPs manage Internet content delivery, and it has been issuing guidelines and litigating court battles over this issue. There are content providers who would like to be able to pay an ISP for expedited delivery of their materials, and there are ISPs who would like to adopt such a business model because of the potential for significant revenue. The FCC is partly reacting to these demands. 

What is the significance/impact of this?

To date, we have all used the Internet with the expectation of net neutrality, whether we understood that background principle or not. We pay an ISP for Internet access, and do not worry about whether we can access or experience certain kinds of Internet content based on the preferences of our ISP. An Internet delivery model that includes fast and slow lanes or preferred or disfavored content would dramatically alter how users experience the Internet, and it could also put small content providers at a disadvantage, with the consequence that the Internet innovations associated with small startups or individuals might not have an equal chance of reaching an audience.

When the FCC issued its proposed alteration to existing net neutrality this spring, it invited public comments on its website. The importance of the issue of net neutrality is reflected in the fact that over 1.1 million comments have been received to date, with early reports classifying the comments as 99% in favor of maintaining the existing model of net neutrality, and opposed to the FCC’s proposed changes.

Why is this issue important for law students?

Both law students and lawyers need to understand the basic principles of Internet operation – partly because so much of life is mediated through the Internet, but also because the legal profession is affected by the availability of Internet access for basic operations in a digital age. Moreover, lawyers need to incorporate the Internet-based needs of their clients into their practices, such as advising a client on the legal consequences of operating a website and helping a client develop a Terms of Service policy that structures the relationship between the website and the public.

Specific issues of concern for a client could include the management of the privacy concerns of subscribers or consumers, the intellectual property issues related to generating creative content (copyright or trademark) or using third-party content, as well as any potential liabilities due to the hosting of user content on a website. All of these issues are relatively new, and today’s lawyers must appreciate that their clients need to design and manage their Internet presence by relying on sound legal advice.