Inside the net neutrality debate

Written by Elda Brogi and Luc Steinberg on . Posted in Current opinions, Opinions

Protestors gather at the White House in 2014 in support of net neutrality.

The principle of net neutrality is famed as much for its importance to the general functioning of an open internet as it is for being difficult to explain. First elaborated and developed by Tim Wu of Columbia University, it is essentially the idea that on the internet, all traffic must be treated equally. Thus, Internet Service Providers (ISPs) must abstain from blocking, throttling or privileging online content and services. Like a national postal service, ISPs are qualified as ‘common carriers’ and must not discriminate on the basis of the contents of the packages they deliver.

Advocates of net neutrality and an open internet say this is the best way to maintain a level playing field for business and innovation and for the circulation of ideas. The US has, until recently, played a leading role in setting regulatory standards and enforcing net neutrality.

However, in January 2018, the US Federal Communication Commission (FCC), previously rigorous in affirming and protecting net neutrality, issued an order embracing a more market-based policy: broadband internet access is not classified anymore as a telecommunication service, but as an information service, consequently free from the ‘heavy’ regulation of common carriers and related obligations of non-discrimination. Ostensibly the FCC has sought to restore a ‘light touch’ approach by the state towards how internet traffic is regulated yet, while the title and the aim of the FCC’s recent order sounds promising (‘Restoring Internet Freedom’), the first consequence of the repeal of net neutrality will likely be economic benefit for ISPs, which will be allowed to exploit and sell the prioritisation of data packages. This will likely impede entry for innovation and small businesses unable to compete with the established players.

Aside from the obvious competitive drawbacks, repealing net neutrality may have repercussions for human rights. The internet has proved an excellent tool for freedom of expression, giving people access to information and the ability to reach a global audience and disseminate ideas in ways that were not possible before. In human rights terms, net neutrality puts everyone on a level playing field, with the same access and ability to seek, receive and impart information and ideas from a plurality of sources. Selecting ‘privileged’ data channels breaks this mechanism and jeopardises the free and open accessibility of the web and its wide and plural content.

At a first glance, the European Union’s approach to net neutrality looks less susceptible to this political sea change. After heated debate on the modalities of a legal framework on net neutrality, in 2015 the EU passed a regulation that defines the rules for an ‘open internet’. Some member states (Finland, The Netherlands and Slovenia) had paved the way with their own laws before 2015 which were, in some areas, more stringent than the EU’s. Under EU regulations, providers of internet access services have to treat ‘all traffic equally, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used’.

‘Repealing net neutrality may have repercussions for human rights,’ argues the Centre for Media Pluralism and Freedom.

Despite such strong wording, the EU regulation does allow a practice which could erode the principle of net neutrality: ‘zero rating’. Zero rating occurs when an ISP (usually in the mobile sector) decides not to cap data traffic on specific applications. For instance, a user’s phone plan may include a one gigabyte per month cap of internet data but offer unlimited use of a messaging application, music streaming app, social media or even a news service. It may be a single application or a suite, however the price for those specific applications is zero. In some cases the zero rated apps are sponsored; the edge provider pays for the privilege of being zero rated.

In competitive terms it gives entrenched companies an unfair advantage over less-established start-ups without the resources to compete, and thus also stifles innovation. In human rights terms, zero rating can be seen as limiting freedom of expression and media pluralism by creating preferential channels to spread and receive content and information. Research has shown that in countries where zero rating practices have been introduced, users will be more likely to use the zero rated services over others despite their specific virtues or lack thereof, creating ‘walled gardens’ where access to open internet is diminished.

In the international debate on net neutrality, arguments in favour of zero rating include that it can provide access (albeit limited) to more people by lowering the cost. In India, Facebook tried to introduce the Free Basics platform to ostensibly provide more people with internet access, whereby users would have access to Facebook, Wikipedia and handful of other applications at a lower cost. This was quickly met with resistance from net neutrality advocates who claimed that access to the internet should be without limits and that filtering only certain apps to internet users rather than the entirety of the web is a violation of human rights. The programme was quickly shut down, however the platform was implemented in other countries, such as Indonesia, with mixed results:  some users think that Facebook is the internet or do not realise that Facebook is on the internet.

What happens next? The EU is unlikely to follow the US approach. At least in the short term, Brussels will maintain its existing rules on net neutrality, despite the global trend indicating a shift in a different direction. However, the FCC’s repeal order will likely give fresh hope to ISPs, who have technical and economic incentives to flout net neutrality. In the EU, internet providers will continue to try to undermine EU net neutrality regulations through favourable exceptions, like zero rating. It is very likely that an important role will be played by the communications authorities when interpreting the regulation, and therefore defining the effective scope of net neutrality and its consequent impact on fundamental rights.

In the US, the battle will rage on. Civil society organisations, human rights activists, lawyers and politicians have mobilised in great numbers to challenge the FCC’s positions, with some individual states even refusing to implement the order. Unlikely though it may seem now, there could be a silver lining in the long run. The internet has a history of innovation and reinvention; it is very possible that repealing net neutrality could end up giving a boost to alternative ways of getting online – from citizen-owned ISPs, to technologies like blockchain that rely on decentralisation and peer-managed control of users.

Looking ahead, will we see this situation play in into the hands of the European Union? Will Brussels be able to attract innovative online business to Europe and, in doing so, buttress its position as the world’s foremost protector of online human rights?

Elda Brogi is Scientific Coordinator  and Luc Steinberg is Project Assistant at the Centre for Media Pluralism and Freedom (CMPF), a research programme devoted to develop innovative and relevant lines of research on media freedom and pluralism in Europe and beyond. It is housed at the Robert Schuman Centre for Advanced Studies, and is co-financed by the European Union.

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