Live Q&A on Net Neutrality: Tuesday, November 16

November 12, 2010 at 2:02pm

 

This event is now over. See below for the questions that were asked and answered during our live Net Neutrality Q & A with Jay Stanley, ACLU Senior Policy Analyst for the Speech, Privacy and Technology Program.

 

Q. To what extent is government regulation required to ensure #NetNeutrality?

          - @joshdmiller

 

A. Either the FCC or Congress has to take action, or the companies that hook us up to the Internet are under zero legal obligation to comply with net neutrality principles.  Throughout most of the past decade things were a lot more unclear – and that helped to keep the companies honest, because they didn’t want to bring the FCC down on their heads.  But this past April, a court decision decisively struck down the FCC’s authority to enforce net neutrality, under the legal umbrella that the FCC was using at that time.  The FCC commissioners can fix that if they want by changing to a new legal footing, but they haven’t acted yet.

 

Q. Why is the ACLU bothering with Net Neutrality?

          - Multiple Comments

 

A. Net neutrality is one of the foremost free speech issues of our time, and defense of free speech was the founding mission of the ACLU and has remained at the core of our organization.  The Internet is a supernova of free speech – it’s where most people exercise their right to free expression today – and boy do they!  The ACLU always has and always will fight fiercely to defend online speech.  We have been engaged on this issue for at least a decade. 

 

It’s true that the First Amendment protects against censorship from the government, not from private parties.  But if a few big companies are threatening the openness of the Internet as a forum for speech, it is crucial that policymakers protect that openness, for all the same reasons that free speech is important in the first place (such as, the right to express oneself, the right to organize, to tell truth to power, to criticize others, and to engage in democratic conversation and debate).

 

Q. Have any telecom companies actually restricted user's access to particular web sites, or is this just a hypothetical problem?

          - @joselinder

 

A: There are numerous examples of abuses.  We detail a bunch in our recent net neutrality report, which can be found at http://bit.ly/d5UQ28.   To pick just two examples, Comcast was found to be throttling online file-sharing using the BitTorrent application and others.  This blocking was not related to network congestion – the blocking took place even when there was plenty of network capacity.  Critics pointed out that BitTorrent is often used to distribute videos (sometimes illegally, but often perfectly legally) and Comcast hopes to sell online video itself, raising the question of whether Comcast was trying to stifle competition. 

 

In another case, a Canadian Internet Service Provider blocked all its customers from accessing a web site maintained by a union that was involved in a labor dispute with the ISP.  This incident was in Canada but shows just the kind of behavior that all Internet providers are tempted to engage in, if they are not stopped from doing so by strong protections. 

 

We have good theoretical reasons to believe that net neutrality violations will be a problem if the government doesn’t put protections in place – the fact that companies have 1) the technological ability, and 2) the financial incentive to engage in such abuses is all anyone really needs to know.  But yes, there have definitely been real-world abuses already. 

 

Q. How likely is this to go to the Supreme Court for a decision? If so, what do you think the chances are of a ruling in "our" favor?

          - Maria Stephan Wooldridge

 

A. We’re a long way from a Supreme Court decision on net neutrality but it is possible.  First, the FCC would have to act as we are calling upon them to do, and impose basic “common carrier” protections on the Internet.  Then an incident of FCC using its powers would have to take place, which an ISP would sue over, and it would have to work its way up. 

 

The Supreme Court did weigh in on the net neutrality issue once already. In 2002, the Bush-era FCC decided to regulate high-speed internet services as an “information service” instead of as a “telecommunications service.”  This flew in the face of common sense and good policy, and a number of groups challenged that classification.  The Supreme Court, relying on longstanding legal doctrines that encourage the judiciary to defer to the executive branch on such discretionary matters unless it’s totally unreasonable, declined to step in and tell the FCC that it could not classify the Internet in that way.  The case was called NCTA v. Brand X.

 

Q. How is this a violation of 1st Amendment protections of free speech? The text is pretty clear that congress (government) cannot limit the free exercise of speech. So I'm curious has to how the ACLU sees Verizon or AT&T as the government? I agree that Net Neutrality is a noble endeavor but I'm not seeing a free speech issue here.

          - Ramey Bowen

 

A. It’s a good question and I addressed it some in one of my above answers, but let me just add that we want to protect free speech in the place where we use it most. We don’t want to see a world where anyone has the right to walk out onto the street and start speaking, where few will hear them and even fewer will listen, while the vibrant online world – which lets any speaker reach as large an audience as their own talent can gain them – becomes a closed and filtered place under the control of a handful of big companies.  The right to free speech can’t exist just on paper, it has to exist as a practical matter, in the real world as well. 

 

Also it’s important to recognize that  Internet service appears to be a very utility-like market. That is, it has many or most of the characteristics of what economists call "natural monopolies.”  Like electricity, water, and telephone service, you are never going to have numerous parallel infrastructures providing a flourishing competitive marketplace and a wealth of different options to choose from.

 

The bottom line is, we can’t necessarily rely on competition to protect our online speech. 

 

Q. Would you work with these guys if they end up supporting NN? http://techpresident.com/blog-entry/are-net-neutrality-advocating-redditors-about-start-pac

          - Eddie Geller

 

A. That’s a really intriguing possibility for online organizing.  I can’t imagine that we wouldn’t welcome their input into the debate and work with them.  We are up against some very large and powerful interests, and we need as many allies as we can get.

 

Q. What are some alternative technologies, devices that can takes us away from having to rely on the big telecom and internet provider companies?

          - Thierno Diallo

 

A. Well perhaps someone out there will correct me but I’m not sure there ARE any.  We’re all used to having *alternatives* in the technology world, because in most sectors it is so competitive, or hackers can figure out a way around restrictions that can be spread around and used by us all.  But here we’re talking about the core architecture of the Internet.  The heart of everything else that’s going on in the technology space.  But it’s controlled to a great extent by a handful of big companies, it’s not something that is subject to rich competition, or that a hacker can tweak. 

 

Because the Internet IS so basic – because it is relied upon by so many other competitive markets – we cannot let the companies that control it to leverage that power in ways that will increase their profits but hurt innovation, fairness and free expression for everyone who uses the Internet.

 

Q. This is the first I’ve heard about Net Neutrality, and I’m not sure how telecoms would be able to restrict access to certain web sites. Do they look at the pages I’m viewing?

          - via e-mail

 

A. The march of technology is making it possible for the telecoms to monitor and control your Internet use as never before.  They can tell who you are communicating with, what application you are using, and what you are saying.  And yes, what pages you are looking at.  And they can do this in real time, so that their computers can make decisions about how to treat or prioritize your Intenet traffic.  Computers can be programmed to do anything – including the computers that make up the architecture of the Interent.  Unless the FCC acts, those computers will be programmed to maximize telecom profits, not to run the Internet fairly and neutrally. 

 

The telecoms used to be “application blind” when it came to the data that you send and receive.  Now, they can tell whether your data is coming from web surfing, a game, e-mail, Internet phone call, online video, or whatever.  They also have the technology to look at the actual content of that data – though reading the content would be a voilation of U.S. wiretapping statutes in our opinion. 

 

Q. What was wrong with the @Google/@Verizon #netneutrality plan released earlier this year?

          -@sjblons

 

A. It was good to see Verizon acknowledge the importance of some key net neutrality principles in that proposal, but the plan had several major flaws.  For example, it woud have exempted wireless entirely.  The problem is that wireless networks appear to be well on their way to becoming one of the most common means through which people access the Internet; if they are exempted, that exception may swallow the rule.  Internet users seek access for a lot of different purposes, but hardly ever care whether our connectivity is wireline or wireless.  Why should the rules of the game be completely different when getting online at a friend’s house, or from a local coffee shop?  

 

Another problem was the plan’s proposed exemption for “managed services,” a vague concept with no established need, that would have opened up a mile-wide exemption from net neutrality for the carriers.  It would give Intenet providers the incentive to build up these private, exempt channels, rather than investing in growing the capacity of the general Internet.

 

Thanks to everyone for participating and sending us your questions.  To find out more about Net Neutrality, how you can take action, and get tools for online activism, visit our Net Neutrality page.