Net Neutrality

Net neutrality is the idea that internet service providers (ISPs) and governments should treat all online data the same, regardless of the website, platform, user, or application it comes from. Proponents believe that net neutrality should be assured by law to protect the ideals of freedom of information that the internet was founded on. Without net neutrality, ISPs could fragment access to users, such as by establishing tiered service or filtering content. Tiered service would require an ISP’s customers to purchase different packages to obtain their desired level of access to information and services that would otherwise be freely available to everyone on the internet. ISPs would be able to block certain content and slow down or prohibit certain types of services to those who do not pay for such package upgrades. They could also slow down or block content from content providers whose services directly compete with theirs, or who do not pay a fee for priority service.

Debate over net neutrality emerged in the early twenty-first century as the internet became an increasingly important aspect of daily life for many people worldwide. While supporters see net neutrality as crucial to freedom of speech and an open internet, critics argue that it creates an unnecessary regulatory burden and has a negative impact on competition and investment in the internet sector. The issue has gained particular attention in the United States, where the federal government has made various efforts to regulate internet services or strip away existing regulations.

Overview

The most marked characteristic of the internet is its decentralized structure. Theoretically, all nodes in the network are potentially equal in power and influence, although in practice this rarely happens because of pre-existing social and economic structures. There are three dimensions to the internet: hardware, software, and infrastructure. Hardware consists of the devices people use to access the internet, whether it is a smartphone, a desktop computer, or the massive server farms where multitudes of data are stored. Software consists of the programs and applications people use to access information or interact online. Infrastructure refers to the systems that connect hardware to other hardware. There are two main types of infrastructure: wired systems and wireless systems. Wired systems use phone lines or fiber optic cable networks, while wireless systems use allotted frequencies on the radio spectrum to transmit internet access.

From the earliest days of the internet there has been discussion and debate about how such a massive and complex system should operate. Internet pioneers often weighed foundational principles of open access and non-discrimination of data against the technical realities of telecommunications and quality of service issues. However, it was the explosion of the internet as a tool of mass communication in the 1990s and early twenty-first century that gave rise to modern concerns about net neutrality. An important factor was increasing commercialization of what had begun as a largely academic exercise. In an example of vertical integration, companies that provided access to the internet for a fee often also took over other companies that supplied content to the internet. This led to concerns over the concentration of power and the control of information flowing through the internet. Some argue that concentration of power limits the democratic exchange of data and the quality of civic participation on the internet. Legal scholar Tim Wu coined the term "net neutrality" in 2003 to highlight these concerns. Net neutrality advocates frame it as part of a broader struggle to keep the internet a public good, rather than a resource to be used for the personal gain of a relatively small group of people.

The debate over net neutrality is affected by the intense and swift technological innovation in the internet and data services industries. One of the emergent issues has been the challenges created by data-rich media forms transmitted via the World Wide Web. For instance, video transmission can congest internet infrastructures at peak use periods, and vertically integrated ISPs could potentially favor their own content during these times. Critics argue that this gives them an unfair advantage in the competition for consumers' attention. ISPs that have developed infrastructure could also potentially limit the performance of competing ISPs that use their infrastructure. Another concern is that companies could restrict bandwidth for particular services such as peer-to-peer (P2P) file sharing programs.

In the debate about net neutrality for wireless communications, one of the crucial issues is the equitable and safe distribution of the frequencies on the radio spectrum. If the radio spectrum is considered a natural resource, how does one make sure one company does not monopolize it and divert internet traffic to sites the company controls? As such, antitrust laws that ensure fairness in competition among businesses are an integral part of the net neutrality debate.

Opponents of net neutrality cite various reasons for their position. One of the most common arguments is that regulation of the internet will lead to decreased competition, which in turn will reduce the type of rapid innovation that made the internet successful and revolutionary in the first place. A related notion is that regulation will cause a drop in investments that support not only ISPs but many peripheral industries as well. Others argue that regulation may cause an increase in taxation or that neutrality will cause an overuse of internet bandwidth. Many opponents claim that the fear of privileged internet access for the wealthy and poor service for others is a false scenario. Some even suggest strict net neutrality rules would in fact hinder access for underprivileged communities, as programs offering free or reduced-cost services would not be allowed.

Regulation in the United States

With the rapid growth and evolution of the internet and related technology, relevant law and policy has often lagged behind. By the 2000s many experts recognized the growing legal importance of net neutrality issues, but early regulatory efforts were rocky. In 2005 the US Federal Communications Commission (FCC) established rules preventing ISPs from blocking any legal online content or stopping customers from using hardware of their choosing. However, this policy was abandoned after the telecommunications company Comcast sued and a federal court found that the FCC did not have authority to enforce its rules. In 2010 the FCC enacted a revised order meant to promote net neutrality, but another lawsuit from a prominent ISP (Verizon) again resulted in a federal court ruling that the agency did not have the proper authority to do so.

In November 2014, President Barack Obama called on the FCC to reclassify internet service as a Title II telecommunications service under the Communications Act of 1934, with ISPs deemed "common carriers," thus enabling the agency to regulate broadband as though it were a public utility and to create strict rules to enforce net neutrality. The FCC also investigated the possibility of applying Section 706 of the Telecommunications Act of 1996, which gives the FCC authorization to "encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans" via various regulatory measures, to the internet. On February 26, 2015, FCC commissioners voted 3–2 along party lines—Democrats in favor and Republicans against—to reclassify broadband as a Title II telecommunications service, and the next month the FCC released the specific terms of the new net neutrality regulations to the public. A group of ISPs then filed suit challenging the FCC's authority to reclassify broadband, but in June 2016 the US Court of Appeals for the DC Circuit ruled against the ISPs and in favor of the FCC.

The FCC's 2015 rules in support of net neutrality proved short lived, however. In January 2017 newly inaugurated Republican president Donald Trump appointed Ajit Pai, one of the two FCC commissioners who had voted against Title II reclassification, as the new chair of the FCC. In April 2017, Pai officially proposed a rollback of net neutrality rules, arguing that ISPs should "voluntarily agree to maintain an open internet" and that any violations of this agreement should be handled by the Federal Trade Commission (FTC), not the FCC. Over the following months, polls indicated strong public support for maintaining the rules. Nevertheless, in December 2017 the FCC voted to reverse Title II classification, with the 3–2 decision again following party lines, this time with Republicans in the majority.

Immediately after that vote, the New York and Washington state attorneys general announced their intent to file suit against the reversal. A coalition of twenty-two states and the District of Columbia ultimately joined the suit alongside various other groups, which would be consolidated under the name Mozilla v. FCC. Meanwhile, in early 2018 the US Senate passed a measure aimed at restoring net neutrality rules. However, a similar bill did not advance in the House of Representatives, and the repeal officially went into effect in June of that year. The state of California then passed its own law establishing net neutrality rules, which was quickly challenged by the US Department of Justice under the Trump administration on the grounds that states do not have the legal authority to enforce laws regarding the internet. In October 2019 the US Court of Appeals for the DC Circuit ruled in favor of the FCC in Mozilla v. FCC, though it also held that the agency could not stop state or local laws regulating net neutrality. Many states subsequently introduced their own net neutrality legislation.

Federal policy on net neutrality reversed once again after President Joe Biden, a Democrat, took office in 2021. That July he issued an executive order aimed at promoting economic competition that included a provision calling for the reinstatement of federal net neutrality rules. Under his administration the Department of Justice also dropped its challenge to California's net neutrality state law. In January 2022, a unanimous decision was reached by the United States Court of Appeals for the Ninth Circuit that allowed the California law to be enforced while also preventing the FCC from interfering with it. A few months later, ISPs and other interest groups dropped their cases against California. In September 2023, Democrats gained a majority on the FCC; the following month, the commission voted to move ahead with reintroducing net neutrality regulations.

In April 2024 the FCC officially voted to reclassify broadband internet access as a public utility. This move gave the federal government renewed power to oversee and regulate the actions of internet providers, effectively restoring net neutrality. However, the rule was challenged and the federal Sixth Circuit Court of Appeals blocked it from going into effect in August 2024, noting a recent Supreme Court decision that ended a key legal principle (known as Chevron deference) giving federal agencies leeway in such cases. Trump's reelection that November was then seen as another setback for net neutrality advocates.

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