The Federal Communications Commission (FCC), the US comms regulator, is moving rapidly towards the reassertion of former powers it held over the internet, previously described as necessary for network neutrality, but now presented as vital for national security. Per a ‘fact sheet’ issued by FCC Chair Jessica Rosenworcel (pictured) last week, the goal is…
…restoring broadband oversight and adopting net neutrality protections that will allow the expert agency on communications to secure our networks and protect public safety
That is quite a vow to make, especially as the lengthy absence of net neutrality rules failed to result in the internet apocalypse that many so-called experts predicted. The FCC gave itself the authority to impose net neutrality between 2015 and 2017, but the most remarkable aspect of that period and the subsequent six years has been the absence of any significant cases that illustrate why the regulator might need these powers. A formidable alliance of big corporations, academics and political partisans vehemently argued that the repeal of net neutrality rules would endanger democracy by allowing ISPs to deny freedom of speech and control what users can see. However, these supposed threats have never materialized in practice. Meanwhile, free speech has more commonly come under fire from politicians pressuring internet platforms into banning individuals and blocking messages they disagree with. This explains why the remnants of this coalition have stopped talking about free speech and are now groping for a new explanation for why the FCC’s old powers should be restored. It says a lot about the character of the FCC’s current leadership that national security and the risk of foreign interference is now being presented as justifications of a very considerable increase in regulatory powers.
The procedural mechanism for delivering net neutrality in the USA involves reclassifying internet access as a ‘telecommunications service’ per Title II of the Communications Act. This means the FCC would instantly gain a raft of new capabilities, including the authority to set prices and punish ISPs for a series of novel transgressions. Confidence in the US regulatory approach will not be shared by any impartial observers who have compared the country’s convoluted pricing regimen for voice calls to that found in other countries, and the extent to which this has encouraged a wide series of crimes perpetrated by thousands of ineptly-monitored telecoms providers. Rosenworcel has always been a supporter of net neutrality and she would have liked to regain control of the internet sooner, but was stymied by lengthy delays caused by Republican Party opposition to President Joe Biden’s selection for the fifth FCC Commissioner. The Democrats eventually obtained majority control of the FCC in September when Anna Gomez received the approval of Congress to become the fifth Commissioner, breaking the prolonged 2-2 tie between Democrat and Republican Commissioners whilst the fifth seat was vacant. With the help of Gomez’s vote, the Commission is expected to apply Title II to internet access from October 19.
The biggest problem with critiquing net neutrality is the slippery refusal of its advocates to adopt one consistent and well-articulated definition of what they are trying to accomplish. The paper from law professor Tim Wu that is widely credited with coining the phrase ‘network neutrality’ is too detailed and nuanced to support all of the demands usually made by supporters of net neutrality. A strict interpretation of net neutrality would demand networks process packets in the order they arrive, without any preference being shown because of the customer, how the traffic was priced, or the purpose being fulfilled. This leads to some intellectual tensions that supporters of net neutrality prefer to gloss over. For example, it is not clear why the general public would agree that the video streaming of porn should receive the same priority as remotely piloting an internet-connected vehicle. Nor does it explain why Netflix can charge customers different rates according to the quality of an internet stream, but ISPs should behave like there is never any relationship between quality and price. Supporters of net neutrality gained most traction by fear-mongering about prices rising for certain kinds of internet traffic, but then had to rationalize why they so often oppose businesses giving people free access to services that their customers previously had to pay for.
Difficulties like these have led to a progressive downgrading of the definition of net neutrality given to the public. Technical rules have been submerged by vaguer commercial and moral demands for equality that still permit wiggle-room for lots of unequal treatment for anyone who uses the internet in ways that elites do not like. The goal of equality has sometimes morphed into the even more nebulous concept of fairness. The goal of fairness is as useless as it is malleable; everyone agrees on the need for fairness without addressing the irreconcilable differences of opinion about what is considered fair in practice. Arguments for net neutrality have suffered from both their low quality and an absence of relevant evidence. Proponents have compensated with an over-reliance upon an emotional association between big business and selfish behavior. These emotional arguments rely on a conscious blind spot for the companies that funded the campaign for net neutrality; Google, Amazon and Netflix want net neutrality because it guarantees they can never be charged for their role in stimulating internet traffic, by ensuring all costs are borne by users at other end of the connection to their servers. Their obviously selfish interest in net neutrality is now under fire in Europe, where numerous politicians and telcos have invented the ‘Fair Share’ argument that forcing big US internet companies to pay more of the cost of internet infrastructure should not be considered a violation of net neutrality.
A rational and informed observer of these arguments should have no problem with identifying what they are really about: money, power and who has them. But it is still remarkable that the Chair of FCC is now seeking increased power by exploiting the American public’s distrust of foreigners alongside their distrust of ISPs. If every packet is treated equally, and free speech is the goal, as President Obama claimed in 2014, then it should not matter who owns an ISP because the same principles would be enforced irrespective of ownership. Now Rosenworcel, who was nominated as a FCC Commissioner by Obama in 2011, is arguing that who owns a business is more important than how it is run.
How Restoring FCC Oversight Would Improve National Security and Public Safety
• Secure Broadband Networks – Ensure the FCC can deny companies controlled by hostile foreign governments access to our broadband networks.
I have previously written that Commsrisk has to become more political because the decisions that affect communications services are increasingly political in nature. The decision to link net neutrality to national security in the minds of the public is a prime example. Either it is vital to treat all network traffic as equal — even if that means pornography, conspiracy theories and propaganda get the same treatment as other content which you like more — or it is vital that the government intervenes to limit the influence of untrustworthy foreigners, but it is incoherent to demand both at the same time. Everything and everyone can be treated the same, or some can be given preferable treatment to others, but you cannot simultaneously have absolute equality and favoritism. I do not like politicians because they say one thing whilst doing another. In this instance, it is not clear what the FCC’s leadership thinks it is doing, except that they are accumulating more powers for themselves. This fault is not unique to US politicians and their appointees. A similar criticism can be applied to the European politicians who are performing mental cartwheels when asserting net neutrality is consistent with a blatant desire to gouge more money from the biggest US internet platforms. And the mind boggles at recent antics in Canada, where a government that parroted Google’s arguments for net neutrality and free speech is now bashing Google over its objections to giving preferential economic treatment to Canada’s biggest media corporations. However, the FCC’s doublethink on net neutrality and national security is an especially depressing nadir.
An honest observer would note that the trend in telecoms and internet regulation is far uglier than many industry insiders will openly state because they fear reprisals. The trend is towards authoritarianism and economic protectionism, as bolstered by unhealthy doses of xenophobia. I am no fan of the governments of Russia and China, but I am resistant to their being used as bogeymen to frighten the public into accepting yet more power being handed to elites who have remained stubbornly unaccountable for their past failures. It has already been noted that the FCC’s leadership has adopted a strategy of blaming foreigners for issues created by fundamental flaws in the US communications ecosystem because it is politically expedient for them to do so. Now I see a disturbing trend where a segment of the US industry has latched on to Commsrisk’s social media audience to promote even more xenophobic arguments about the ongoing failure to protect US phone users. These are not beliefs that I share or endorse, even as I accept the need for both radical change within the communications market and wariness about the influence of despotic governments.
Excluding foreigners is not going to be the solution to most of the problems ailing the US communications sector because most of the problems stem from bad decisions made by Americans. National security is not a good reason to give more power to government agencies who transparently intend to use those powers to accomplish goals which have nothing to do with national security. The quickest way to deliver an improvement in the management of US communications infrastructure would be to sack approximately half of the lawyers who dominate decision-making in this field and to replace them with engineers, economists and businesspeople who succeeded in life without the help of the machines that run party politics. That may be impossible to achieve in practice, but it is far more coherent a position than the rationalizations for the FCC’s new power grab.
