Pixel Envy

Written by Nick Heer.

Destroying Internet Freedom

The seventy-five-page document (PDF) released today by the FCC represents the clearest view yet of Ajit Pai’s point of view on what ISPs offer, how to regulate providers, and what he sees as the Commission’s role in making sure that the open web continues to thrive. And, in short, it’s a crock of shit.

I anticipate that Karl Bode and Jon Brodkin will explore this proposal — titled “Restoring Internet Freedom”, like a gigantic middle finger to anyone who truly cares about freedom on the internet — on a much deeper level than I can, but I’d like to present a few excerpts for your review.

Americans cherish a free and open Internet. And for almost twenty years, the Internet flourished under a light-touch regulatory approach. It was a framework that our nation’s elected leaders put in place on a bipartisan basis. President Clinton and a Republican Congress passed the Telecommunications Act of 1996, which established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet … unfettered by Federal or State regulation.”

During this time, the Internet underwent rapid, and unprecedented, growth. Internet service providers (ISPs) invested over $1.5 trillion in the Internet ecosystem and American consumers enthusiastically responded. Businesses developed in ways that the policy makers could not have fathomed even a decade ago.

These are the opening sentences of the proposal, and they already hint at a misleading document. In the context of this proposal, the implication is that the high investments of internet service providers in the nineteen years prior to the 2015 decision to classify providers under Title II is responsible for the rapid expansion and overwhelming success of online businesses and services. This proposal then goes on to blame Title II classification for an apparent destruction of the internet’s economy:

The Commission’s Title II Order has put at risk online investment and innovation, threatening the very open Internet it purported to preserve. Investment in broadband networks declined. Internet service providers have pulled back on plans to deploy new and upgraded infrastructure and services to consumers. This is particularly true of the smallest Internet service providers that serve consumers in rural, low-income, and other underserved communities. Many good-paying jobs were lost as the result of these pull backs. And the order has weakened Americans’ online privacy by stripping the Federal Trade Commission — the nation’s premier consumer protection agency — of its jurisdiction over ISPs’ privacy and data security practices.

This is complete myth building. ISPs themselves state that Title II has not affected their infrastructure plans, and the vast majority of publicly-traded ISPs actually saw an increase in capital expenditures from 2015–2016, compared to the two years prior. There is no indication that the classification of ISPs as common carriers has impacted either their business or the internet economy as a whole: the stock prices of all major American ISPs have increased over the past five years and, with the exception of Verizon, dramatically so. Of the ten most valuable publicly-traded companies in the world, five are American tech companies — all have a far higher valuation than they did five years ago. Put simply: the internet economy isn’t dying; it’s bigger than it ever has been, and the common carrier designation hasn’t made a dent in that trajectory.

Furthermore, the Commission’s claim that consumer privacy has been affected by the classification of ISPs under Title II is wildly misleading.

But the outright falsehoods in this proposal aren’t nearly as egregious as the way the Commission misinterprets the role of an ISP. The 2015 common carrier designation is based on the FCC’s classification of ISPs as telecommunications companies, rather than information service providers. I’ll get to the latter categorization in a moment, but first, a quick word from the Commission on why ISPs — which categorize themselves in SEC filings as “telecommunications service” companies — are not telecommunications companies:

In contrast, Internet service providers do not appear to offer “telecommunications,” i.e., “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received,” to their users. For one, broadband Internet users do not typically specify the “points” between and among which information is sent online. Instead, routing decisions are based on the architecture of the network, not on consumers’ instructions, and consumers are often unaware of where online content is stored.

What a load of hot garbage. A user specifies what internet connections they wish to make by typing or selecting URLs or addresses over other protocols. That the route chosen by the infrastructure is not directly controlled by the user is immaterial.

The FCC’s argument is akin to them stating that someone isn’t driving to a specific destination because they’re forced to pass through other towns because that’s how roads work, or that FedEx isn’t a courier company because a shipper doesn’t get to choose whether their parcel goes through Memphis.

So how does the FCC define “information service provider”, and why do they think the internet falls under that categorization?

Section 3 of the Act defines an “information service” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.”

[…]

Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper’s website or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online. Whether it’s an address book or a grocery list, a broadband Internet user is able to store and utilize information online. Whether uploading filtered photographs or translating text into a foreign language, a broadband Internet user is able to transform and process information online. In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition — and accordingly appears to be an information service by definition.

This is the part where things get necessarily lawyerly. For that, we’ll turn to page twenty-seven of a June 2016 ruling (PDF) from the D.C. Circuit of the U.S. Court of Appeals:

In support of its second conclusion — that from the user’s point of view, the standalone offering of broadband service provides telecommunications — the Commission explained that “[u]sers rely on broadband Internet access service to transmit ‘information of the user’s choosing,’ ‘between or among points specified by the user,’” without changing the form or content of that information. … The Commission grounded that determination in record evidence that “broadband Internet access service is marketed today primarily as a conduit for the transmission of data across the Internet.”

The Commission then cited ISPs’ marketing in defence of their position, arguing that their very own ads sell ISPs on the basis of speed and reliability of arbitrary data transfer. That is, they sell themselves as dumb pipes. The Court of Appeals held up the 2015 Title II reclassification in this and many other decisions.

But the significance of all of this is kind of moot, as Mike Masnick explains:

For Pai to successfully roll back those rules, he’d need to show that there was some major change in the market since the rules were put in place less than two years ago. That’s… almost certainly going to fail in court. Again, this is important: Pai can change the rules, but that rule change will almost definitely be shot down in court.

[…]

Congressional net neutrality haters (e.g. those receiving massive campaign contributions from big broadband players…) are well aware that Pai’s plans have no chance in court. Yet, they want there to be this kind of uproar over the plans. They want the public to freak out and to say that this is bad for the internet and all that. Because this will allow them to do two things. First, they will fundraise off of this. They will go to the big broadband providers and act wishy washy on their own stance about changing net neutrality rules, and will smile happily as the campaign contributions roll in. It’s how the game is played.

The second thing they will do… is come to “the rescue” of net neutrality. That is, they will put forth a bill — written with the help of broadband lobbyists — that on its face pretends to protect net neutrality, but in reality absolutely guts net neutrality as well as the FCC’s authority to enforce any kind of meaningful consumer protection. We’ve already seen this with a plan from Senator Thune and this new bill from Senator Mike Lee.

This is really important to keep an eye on. Because, as bad as the proposal released today is — and it’s really bad — the fight won’t be over even if these rules pass, and are then overturned. I’m not very confident that the highly divided and very partisan Congress will get this right.

There are a couple of things you can do if you’re American. First, acknowledge your support for retaining Title II classification for ISPs. Comments will be added to the public record on this, so when this proposal is passed with millions of people opposing, there’s a clear sign that it isn’t in the public interest.

The second thing you can do — if this ever becomes a Congressional issue — is call your public representatives. Urge them to keep the common carrier designation for ISPs. I get that everyone seems to be telling you to call your representatives for a laundry list of reasons, but this is really important. Most everyone seems to agree with keeping the ’net neutral if it’s explained to them, but it can be hard to explain what’s going on here and what is at stake.

And that brings me to the third thing you can do: tell your friends about this, particularly those less technically inclined. Get them engaged, and get them to call as well. Every voice counts, even when it seems like those accountable aren’t listening. They absolutely will be listening if they fuck up the ’net for a generation.