By: Karin Deutsch Karlekar and Christopher Hamlin
In 2013, inventor of the internet Tim Berners Lee reflected, “When you make something universal … it can be used for good things or nasty things … we just have to make sure it’s not undercut by any large companies or governments trying to use it and get total control.” In what seemed like a momentary delay of his prediction—and a win for internet freedom advocates—in late April, the U.S. Court of Appeals for the D.C. Circuit denied the telecommunications industry’s request for an appeal of a 2016 decision that upheld the net neutrality regulatory framework. In 2015, the Federal Communications Commission (FCC) had reclassified the internet as a utility much like regular phone service (where, for instance, the phone company can’t block a call because they don’t like the caller). This allowed for stronger enforcement of existing net neutrality rules that prevent internet service providers (ISPs) such as Comcast, Verizon, and AT&T from arbitrarily price-gouging or discriminating against legal content, users, or platforms by slowing or preventing access to them. The landmark ruling is now under threat as the FCC—under its newly appointed chair, former Verizon lawyer Ajit Pai—took an important vote on May 18 to weaken federal oversight of ISPs by no longer applying the Title II “common carrier” classification of the Communications Act to ISPs.
This proposed fast-track roll-back of the 2015 protections represents the latest move by the new administration to strip consumer internet access and privacy protections adopted in the Obama years, which included preventing ISPs from selling your browsing history without permission and expanding broadband subsidies for the poor. Pai’s adamant predisposition against a more enforceable framework for net neutrality is concerning, and he may have violated a legal statute by taking an FCC policy position before allowing a public comment period.
Despite the traditional U.S. role as an advocate for individual freedoms around the world, the FCC’s reversal on this issue is also at odds with modern global attitudes and governance on the right to unrestricted, affordable digital access. A 2014 CIGI-Ipsos survey of 23,376 internet users from 24 countries found that 83 percent of them believe that affordable access to the internet should be a basic human right. In 2016, this evolving consensus was enshrined by the United Nations Human Rights Council as a non-binding resolution, which denounced “measures to intentionally prevent or disrupt access to or dissemination of information online” as a human rights violation, given that “the same rights people have offline must also be protected online.” This includes the right to freedom of expression under Article 19 of the Universal Declaration of Human Rights.
Governments across the developing and developed world have already begun to codify this concept domestically or to invest in projects that operationalize it. Germany, Costa Rica, Estonia, Finland, France, Greece, and Spain have all had some form of legal right to broadband access for years. That says nothing of the multitude of nations with laws to protect net neutrality, including the European Union. Most recently, in March, the Indian state of Kerala declared that access to the internet is a basic human right, promising to provide free access to all its citizens. This promise is increasingly easier to make as privately funded projects such as Google’s Project Loon partner with governments to provide affordable, universal internet access to its citizens through the use of high altitude balloons. At the same time, Facebook’s Free Basics application has brought free internet to 25 million people across the world.
However, last February, India’s telecom regulator banned the free Facebook application over concerns that it undermined net neutrality by favoring certain services over others. Along this vein, it is interesting to consider that China consistently outpaces democratic India in providing its citizens internet access, yet it also consistently ranks as one of the most oppressive on internet freedom indexes. This begs the questions: Can internet access truly be considered a fundamental right—affording the respective essential benefits to be labeled as such—if it means sacrificing uncensored access to all legal content? And what constitutes a healthy regulatory relationship between the governments and ISPs that determine that balance?
Chairman Pai contends, alongside ISP giants, that regulating the telecommunications industry like a utility makes it less attractive to investment, resulting in telecom cutbacks on the capital expenditure that bridges the digital divide by allowing them to build out infrastructure to low income and rural neighborhoods. Addressing this reasoning, industry leaders of the Internet Association, including Facebook, Google, and Amazon, have instead underscored net neutrality’s importance to the competition and innovation of their industry. They have also pointed to evidence that shows many ISPs have actually expanded their investment in network infrastructure build-out and innovative technologies like fiber optics, while those that decreased investment had been undergoing major restructuring deals. Perhaps it should also come as no surprise then that last month more than 800 tech start-ups made the case to Chairman Pai that gutting the legal framework preventing service discrimination impedes not only consumer choice, but also their ability to “start a business, immediately reach a worldwide customer base, and disrupt an entire industry” through the unfettered marketplace of ideas.
This echoes arguments of free expression advocates, including PEN America, who believe Americans stand to lose essential capabilities for free expression and critical information sharing. Having taken part in the large-scale 2014 advocacy campaigns that persuaded the FCC to reclassify net neutrality protections in the first place, PEN America is concerned that telecom giants may once again receive the discretionary legal power to scrutinize information in their networks and discriminate against the delivery of certain content or its creators. Equally concerning is the potential creation of “pay-to-play” slow and fast lanes, in which only those willing to pay a premium to have their content reach its audience will enjoy that unrestricted right. The right to know, to free expression, and to association are core freedoms that are put in jeopardy through the creation of this power dynamic. It has the potential to establish a system of privatized censorship that restricts the flow of free thought necessary to the work of the writers and readers that PEN represents.
Over the past half decade, the internet has become such an internationally recognized foundation for expression, as well as political and commercial interaction, that it has broached the realm of essential “public commodities” such as water, electricity, or telephone service. Allowing private industry to selectively inhibit citizens’ ability to use that commodity is detrimental to standards of living in many modern societies, and moderate government regulation may therefore be inherently necessary to protect its citizens’ democratized access to it. The current administration can stay on the path of newly established international norms—and even rise to lead their continued modernization—or inch closer to the trend of authoritarian governments of crafting policy frameworks that serve to limit access. As the FCC vote represents the first step in this anti-democratic process, we reiterate the call not to reverse the gains made in ensuring equal access to this essential means of communication and interaction.
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