A key pillar to the free and open internet was struck down by a US court. So where does that leave the legal status of the internet?
Network neutrality, frequently referred to as net neutrality, is a big reason why you have been enjoying the free and open internet today. Given how much critical infrastructure and audiences come from the US, functioning network neutrality laws in the US is hugely important for the global internet to function.
Unfortunately, those laws were dealt a major blow after a US court struck those laws down.
Now, since it’s been quite a while since I covered the topic of network neutrality, it makes sense that we break down what network neutrality actually is and part of the reason why it’s suddenly receiving opposition in recent years.
Network neutrality is the general concept that every bit travelling through the internet is treated equally by your Internet Service Provider (ISP). If that packet of information is coming from one of the ISPs own service or coming from a website originating from another country, the priority of such a packet is treated equally. That’s what network neutrality aims to protect.
The problem, of course, is that ISPs are massively profitable companies who also happen to own a major choke hold of that information (infrastructure that is frequently paid for by taxpayers, we should point out). Because competition is weak to non-existent (especially in North America), ISPs have been able to abuse their market dominance in numerous ways such as charging abnormally high prices for services compared to the rest of the developed world.
Now, one of those ways that ISPs in North America have been seeking to increase their vast profits is by instituting what are known as “fast lanes”. Basically, they want the power to prioritize those packets and maximize their massive profits. So, for instance, they want to prioritize packets flowing between their services and consumers such as their own streaming service. This while slowing down (AKA throttling) competing services such as Netflix or Youtube.
So, how does a service get priority? One of the most common ways is to demand payments from those services to get priority. So, if you are Netflix for instance, you would be asked to fork over millions of dollars just so that users can continue to use your offerings without interruption.
What if your service can’t afford those payments? Simply put, your website would instantly become slow to load. Web pages would take a couple of minutes each to load and, of course, forget even streaming any kind of content at all. It’ll take several minutes, maybe even hours, for a low quality video to buffer so you can view that one video.
That, of course, has detrimental impacts on your website. There’s nothing wrong with the servers you have, they are delivering the packets just fine. It’s just that the ISP’s have opted to throttle those packets, making your website appear slow anyway. This just to favour their own hand-selected services and those who basically paid the ransom payments. As a result, users eventually start leaving your site altogether because, as far as they are concerned, the website is slow and unusable. It ultimately hamstrings competition in the open internet, making it impossible to compete unless you are already very well financed. It also impedes online innovation in the process because even if you are offering a bold new innovative service, users would be unable to reasonably access your web service in the first place.
That’s why network neutrality laws and rules became so critically important. There are very few, if any, options to circumvent your access being throttled because it is, after all, your ISP doing so. What’s more, it’s your ISP being financially motivated to enforce those fast lanes. As a result, government intervention becomes necessary to stop those market abuses from happening.
Some voices were critical of such rules early on because they were seen as unnecessary. After all, a movie company is different from a broadcast company which is also different from an ISP. They were generally all different companies operating independently from one another. However, as time went on, corporate vertical integration took hold and consolidation started running rampant. As a result, the ISP was also owned by the same company as the broadcast news outlet, movie company, and more. They became all part of the same conglomerate. That means there is more motivation than ever to create a closed system and keep audiences captive. As a result, more people came on board with the concept of network neutrality because as the business reality evolved, network neutrality laws became more obvious if you wanted to keep the internet open to all.
In more recent years, however, there was an ISP backed disinformation campaign claiming that network neutrality laws were some sort of “government takeover”. There was also the similar conspiracy theory that network neutrality laws were some sort of mechanism for the government to censor people. Neither was even remotely true, but disinformation was becoming more and more culturally accepted already. These conspiracy theories were seen largely popping up among right wing extremist sources and eventually seeped into the more general right wing side of American politics. Eventually, despite broad support for such laws, federal level network neutrality laws were killed off in 2017 by the FCC which was controlled by Trump pick, Ajit Pai.
That lead to a great deal of uncertainty for business, innovation, and investment as it became unclear whether it made sense to continue innovating in the US. In response, states like California passed network neutrality laws of their own to try and keep the open internet alive. While there has been a long court battle by ISPs to kill those laws, ISPs apparently dropped their legal fight in 2022.
So, while state level protections are in place for now, the fight to kill off such laws continued on at the federal level. Recently, a 6th circuit court ruled against network neutrality. From TechDirt:
The telecom industry (with the help of the recent Trump Supreme Court), has been drooling for months at the prospect that the Trump-stocked courts would soon finally deliver the killing blow to FCC net neutrality protections (read: popular FCC rules designed to prevent telecom monopolies from abusing their market power to screw over customers and competitors).
As predicted, this week the Trumplican heavy Sixth Circuit delivered, in a ruling that blocks the Biden FCC’s plan to restore net neutrality rules. The entire ruling reads like it could have been directly ripped from a telecom lobbyist’s playbook, with lots of false claims about how these very basic regulations somehow threatened the open web and constitute a “heavy-handed regulatory regime”:
“Today we consider the latest FCC order, issued in 2024, which resurrected the FCC’s heavy-handed regulatory regime.”
To be clear, the FCC’s net neutrality rules were actually very modest by international standards. They had ample loopholes for ISPs to stumble through. They were never actually enforced with any consistency by a broadly feckless and captured FCC. And they saw massive popularity across a bipartisan majority of Americans. Right out of the gate calling the rules “heavy-handed” is telling.
Without question, this is definitely a blow to the free and open internet. Still, knowing that there are state level network neutrality laws – including in the US’s most populous state of California – it’s hard to see exactly how much of this would change the overall landscape. The only states that I see being affected by this are the ones without network neutrality protection laws. Still, there are protections in place for some states at least. What’s more, this ruling can technically be appealed as well. So, it’s by no means the end of the road for the open internet, just a legal bad day for those who value the free and open internet.
