Net Cemetery

Network neutrality--that’s now the official policy of the Obama administration, announced last month by the new chairman of the Federal Communications Commission (FCC), Julius Genachowski. It’s a development that could be more significant to the future of free speech than any milestone since the Supreme Court’s decision in New York Times v. Sullivan in 1964.

The essence of net neutrality seems simple: Internet service providers should be required to treat all data equally and avoid blocking or delaying any sites or applications. That’s an important principle to establish, because there are, unfortunately, cases where it has been violated--cases where network operators have censored speakers who threatened their economic interests. In 2007, for example, AT&T muted the sound during a webcast of a Pearl Jam concert at the very moment Eddie Vedder, the group’s lead singer, started criticizing George W. Bush. Verizon, to cite another example, has blocked pro-choice text messages sent by naral to its members (who had even requested them). When activists objected to the decision, Verizon said it would block messages from all "issues-oriented" groups, then later apologized for the whole mess, blaming the initial decision on a "dusty internal policy." Nevertheless, it kept the policy in place--reserving the right to censor any content "that, in its discretion, may be seen as controversial or unsavory."

Those examples are bad enough, but there’s an even more troubling case that shows how deeply the economic decisions of network operators can restrict free speech. Two years ago, Comcast, America’s second-largest high-speed Internet provider, blocked BitTorrent, a popular peer-to-peer file-sharing application that could be used to distribute (among many other things) high-definition TV video that would compete with Comcast’s video services. The obstruction was discovered by an amateur singer who wanted to share public domain performances of barbershop quartets with his fellow aficionados. After initially denying that it was blocking BitTorrent, Comcast, which was literally denying access to the King James Bible, claimed that it wasn’t blocking the file-sharing application, but merely delaying it to conserve bandwidth as part of "reasonable network management."

The Comcast case is a model for the free-speech battles of the future, where Internet and wireless providers may want to favor certain content providers over others in order to maximize profits at the expense of consumer choice. This problem is especially acute in the United States because of our lack of competition among broadband companies in most markets. In many towns, Comcast (or its regional equivalent) is the only plausible supplier of broadband. This raises the fear that Internet service providers will start striking deals with the likes of Facebook, charging a price for access that Facebook can afford, but making it impossible for other companies to compete.

This kind of discrimination threatens one of the most distinctive features of the Internet: the fact that there is no easy way to discriminate among different kinds of content, just as the electrical grid doesn’t ask whether your TV set is made by Sony or Panasonic. But, in recent years, that distinctive feature has been threatened. We now live in a world where the technology for watching what people do with their data packets is sophisticated enough to give a company like Comcast the ability to decide which packets can be shuffled into slower or faster traffic lanes, depending on what its business model dictates. And, in addition to having the technical ability to discriminate, Internet providers now have the legal authority to do so. In the 2005 Brand X decision, the Supreme Court ruled that cable broadband providers were not a "telecommunications service" but an "information service," and, therefore, were freer to keep competitors off the network.