After a surprising pre-election lull, net neutrality - an issue in the 2008 presidentials but almost invisible in 2012 - flares up again. By I.D. Scales
When Verizon filed an 'opening brief' in July to the United States Court of Appeals as part of its suit challenging the FCC's 2010 net neutrality regulations, its gist - that Verizon had editorial oversight of content due to its constitutional right to freedom of expression!!?? - was initially greeted with either a snort of derision or a stunned silence.
But now that the presidential election is out of the way - and the entire US IT establishment appears to be at one in fending off governance and net neutrality threats from the ITU (see - Why a 'sender pays' Internet would be utterly wrong)
the Net defenders are coming back with a rush in support of the FCC and the open Internet. Presumably if Romney had won the tactics might have had to be different.
So as things stand the main target of the pro net neutrality crowd is that weird 'First Amendment' pitch from Verizon. Weird, because as opponents were naturally quick to point out, Verizon had spent much of the past decade or two arguing that when it came to the Internet it was a 'mere conduit' and in no way responsible for the actual content (pornography, copyright video and music, terrorist communications etc etc).
Now it says it has an editorial role and therefore should not be thwarted in its ability to control the pipe by speeding up some content, blocking other content and so on. Any interference by the government would be unconstitutional; the FCC net neutrality regulations therefore have to go.
It may be a long shot dreamed up in a late-night "let's kick some wild ideas about" session down at Verizon's legal affairs department, but supporters of the FCC have realised that if it were to hold water, it would be a very dangerous indeed. Goodbye net neutrality.
So last week a coalition of the unwilling (to see Verizon and MetroPCS get away with it) lashed back with a brief of its own. Google, Facebook Amazon, eBay Netflix, Sony and others have formed the Open Internet Coalition and have now also submitted a brief with the U.S. Court of Appeals for the D.C.
Circuit, arguing the by now well-known case that the Internet - as she is currently arranged - is the engine for high-tech growth. To tamper with it in response to special pleading by the likes of Verizon, would be ridiculous.
Verizon in its lawsuit argues that the FCC lacked legal authority to make the original net neutrality rules and that it acted without enough evidence that the rules were even necessary.
In response, the technology companies say the net neutrality rules can be justified by the FCC's authority to foster broadband investment: increasing data demand is driven in turn by neutral access. The services that have thrived drive that investment. Furthermore companies like Google, Netflix and so on have made their own vast investments on the basis that non-discriminatory access would be in place - the rules shouldn't be changed. A deal is a deal.
As to Verizon's First Amendment rights idea. The coalition argues that Verizon only transmits the speech of others, not its own. Many observers have of course pointed out that Verizon took an exactly opposite view when tussling with the music industry. Then it told a court that "the Internet service provider performs a pure transmission or 'conduit' function... analogous to the role played by common carriers in transmitting information selected and controlled by others. Traditionally, this passive role of conduit for the expression of others has not created any duties or liabilities under the copyright laws."
And other voices have weighed in. Consumer advocacy group Public Knowledge is supporting the Open Internet Coalition; while the former FCC Chairman Reed Hundt and former FCC Commissioner Michael Copps have also filed briefs
Hundt argues that as "...every aspect of business and social conduct increasingly depends on access to information and collaboration on the Internet. For Verizon and all other Internet access providers to become constitutionally protected gatekeepers, editors, and censors as to all knowledge and data would threaten consumers, citizens, and businesses with untold risk and cost."
Open access is not regulation of the Internet as some opponents suggest, says Hundt, but simply ensures access to the Internet and Internet interconnection to guarantee competition on the Internet and freedom of choice for the consumer.
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