US: Future of free and open internet in the balance

Digital 4 min read
ARTICLE 19

Following the decision by the DC Court of Appeal to uphold portions of the FCC’s repeal of rules preserving net neutrality, ARTICLE 19 calls on Congress and the States to pass legislation that adequately protects competition and lowers market entry barriers for both infrastructure providers and access service providers.

On 1 October, the D.C. Circuit Court of Appeals partially upheld the Federal Communications Commission’s December 2017 proposal “Restoring Internet Freedom Order” in the case Mozilla v. FCC. The decision affirmed the 2017 rollback of the existing net neutrality rules, which required internet service providers to treat all web traffic equally. In a partial victory for net neutrality advocates, the court did rule that the FCC cannot prevent states from enacting their own net neutrality laws or other broadband regulations.

Net neutrality is one of the core principles underpinning a free and open internet. Ensuring net neutrality means that providers cannot use their control over Internet infrastructure to block, slow or prioritize access to content from certain origins or providers, to certain kinds of content, or to certain applications or services. It is the idea that the important role of providing access infrastructure should not put a provider in the position where they can interfere with competition between service providers that rely on such infrastructure to meet consumers.

On 14 December 2017 the FCC voted to change the way that the internet was classified for regulatory purposes, effectively allowing ISPs to block or throttle websites and monetize faster download and upload speeds. In these circumstances, online services, applications, and websites can be granted preferential treatment for any number of reasons, be they commercial or ideological.

While in the United States the battle over net neutrality is mostly around profit-driven issues, such as whether or not AT&T can charge Netflix more to stream content to its customers, more authoritarian countries have used the rollback of net neutrality to justify control over internet service providers in their countries. This undercuts the fundamental promises of freedom of expression and equal access to information on the internet. It also undermines the economic, social and cultural freedoms of individuals around the world, who may find themselves at the mercy of monolithic infrastructure and access providers.

“The future of the internet is in the balance; whether it will enable human rights or repress them,” said Quinn McKew, Deputy Executive Director of ARTICLE 19. “Congress must act to restore net neutrality and signal to the world that the United States will continue to champion a free and open internet that fosters innovation and competition in support of human rights.”

To restore net neutrality and send a signal that the US protects an open and free internet, states such as California and Washington have passed legislation restoring net neutrality. The DC Appeal court ruling prevents the FCC from overturning that legislation, which seeks to protect consumers and promote competition.

ARTICLE 19 encourages more states to quickly enact net neutrality consumer protections, responding to the strong demand by citizens to do so. Congress should also respond to the public demand for strong net neutrality protections by passing the Save the Internet Act to provide certainty to all internet users across the country, regardless of what state they live in. The Save the Internet Act has already passed the House of Representatives, and in 2018 a bipartisan majority of the U.S. Senate approved a Congressional Review Act resolution to reinstate the FCC’s 2015 net neutrality protections.