The loss of net neutrality this week was even bigger than expected.
This time of year is always the worst of times and best of times for internet freedom. Internet activist Aaron Swartz committed suicide on January 4 of last year. Two years ago today, millions took part in the successful 2012 SOPA/PIPA Blackout protest, followed last year by an event many of us celebrated for the first time as “Internet Freedom Day.” (You can read all about Internet Freedom Day here, but basically, we should have at least one special day designated for celebrating one of the most revolutionary technologies the world has ever known.)
And this week, on January 14, the FCC’s network neutrality rule was gutted. So now, the internet freedom issue we need to focus on is network neutrality.
Because with the recent ruling, cable and phone companies like Verizon and AT&T now have the legal right to block any website, webpage, blog, video, web technology, app, cloud sync technology, or anything else running online through their pipes. Put another way, Comcast or Time Warner Cable can now block Netflix, BitTorrent, or even this article. They can choose to provide better service to some entities and not others, letting some websites load very, very slowly and others load instantly (for a fee!).
Even though we predicted this decision here in WIRED, it turns out that the real problem isn’t the court’s decision — but the FCC’s response to it.
Net Neutrality Is Internet Freedom
Rather than taking the difficult (political) journey to protect internet freedom, the FCC is issuing deluded statements that no journey is necessary. It’d be like Frodo saying he’s going to save Middle Earth — except without carrying the ring to Mount Doom, the only place it can be destroyed.
In this case, FCC Chairman Tom Wheeler is Frodo and Mount Doom is a legal move called “reclassification,” which is the only way to win net neutrality in the courts.
Here’s the insider background, one I personally lived. In 2007, when I was a lawyer for the public interest group Free Press, I helped draft the complaint to the FCC against Comcast for secretly blocking BitTorrent and other technologies. My theory was simple: the FCC had issued a set of Open Internet principles in 2005 and by blocking legal technologies like BitTorrent, Comcast was violating those principles.
Now, the Open Internet principles were not legal rules adopted by the FCC; they were effectively a press statement posted on the FCC website. But we filed that complaint because the FCC’s leadership had publicly and repeatedly promised that if anyone violated the principles, the FCC would have the power — and will — to stop it. We took the FCC at its word and filed a complaint based on their stated Open Internet principles.
And the FCC ruled in our favor, against Comcast, in 2008. It found that Comcast violated the FCC’s principles and that a certain part of the Communications Act, the first part known as Title I, gave the FCC the jurisdiction to act. Then the case went to court, and in January 2010 — three years ago this week actually — I argued the case, alongside the FCC’s top lawyer, before the appellate court. But the three judges there made it clear they didn’t buy a single one of our arguments. It was a bloodletting.
After the judges effectively scolded us, they asked us how we wanted to lose; let me tell you: this a question no lawyer ever wants to receive. The options were to lose on process or on jurisdiction. A “process” loss meant that the FCC needed rules before enforcing them, and a press statement like the Open Internet principles wouldn’t do. “Jurisdiction” meant that even if the FCC adopted rules beyond the policy statement, the FCC’s action lacked any solid legal basis in Title I of the Act to enforce network neutrality. The FCC lawyer asked to lose on process, which he described as the narrower loss. I, in turn, asked for a decision on jurisdiction: Because the FCC by then had already started the process of adopting rules, and what we really needed to know was whether the FCC even had the authority under Title I to adopt those rules at all. The Court ruled against us, as promised, and did so on jurisdiction. It didn’t even bother discussing the process arguments that had completely failed to persuade them.
This was April 2010. At the time, those of us involved in fighting for net neutrality knew two things when we read the court’s decision: (1) The FCC needed to adopt rules, rather than accept legal complaints based merely on an Open Internet press statement; and (2) Those rules needed a solid jurisdictional theory that was not Title I. We even knew what that jurisdictional theory was — it was Title II, or reclassification.
“Reclassification” means that the FCC can put AT&T and Comcast in the same regulatory bucket that landline and mobile phone companies have been in since 1910, that dial-up internet access is in, and that DSL Internet access was in until 2005. This bucket is Title II of the Communications Act, a legal category that has forbidden blocking of phone calls and discriminating amongst users for a century. By “classifying” the carriers as subject to Title II for internet access, the FCC would then have clear jurisdiction to stop blocking and nondiscrimination — instead of merely requiring cable and phone companies to disclose when they are doing so. The FCC has the power to do this.
It’s not as if the FCC didn’t know this was required for net neutrality; its leadership just didn’t have the backbone to actually do it. Instead, then-FCC Chairman Julius Genachowski made a deal with AT&T and came up with a new and different theory that everyone expected to fail in court. And sure enough, it did. Four days ago. The court found that the new theory could not be the basis for a rule forbidding blocking or discrimination of a service outside of Title II.
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Today, we know the same two things we knew years ago: The FCC can’t enforce press-statement principles without adopting official rules, and those rules must be based on the legal theory of reclassification. So, if the current FCC Chairman Tom Wheeler wanted to actually fight for network neutrality, he would simply call for new rules, not principles, and do so under Title II, not another theory.
Instead, on the day of the decision, Chairman Wheeler tweeted the opposite of the truth: “DC Circuit has affirmed @FCC’s authority to keep the internet free & open for innovation & expression. #NetNeutrality.” He even issued a statement on his official blog, claiming to have the same authority the FCC had asserted in 2005 — even though two major court decisions have rejected that authority, one in 2010 and now this week:
“The  Open Internet principles … are not controversial in themselves. … If something appears to go wrong in a material, not a trivial, way, the FCC will be available to use the totality of its authority for adjudication and enforcement. It will look to the Open Internet Order principles and it will examine the facts in light of the principles.”
It looks like the FCC Chairman’s blog has either been hacked or he believes we live in a Groundhog Day time-warp back to 2006 where he can enforce principles in a press statement on jurisdictional theories that have already been emphatically rejected in court. It’s a promise he can’t keep.
It’d be like Frodo fooling himself and others, claiming he had already destroyed the ring, or that Middle Earth’s inhabitants already had all the power they needed to defeat Sauron, rather than undertaking the difficult journey to Mount Doom.
And that is the state of Internet freedom on this second annual Internet Freedom Day, the two-year anniversary of the SOPA/PIPA Blackout protest.
The internet is now, and will likely remain for some time, a free-fire zone for AT&T, Verizon, and others to block blogs, superimpose any content (including ads) over the existing content on any webpage, cut deals making Bing or Google the “exclusive” search provider in our homes, and much more.
The loss this week comes after our fighting a decade-long war (9 or 12 years, actually, depending on if you count it from 2001 or 2005). But throughout these battles, millions of individuals and thousands of small businesses, consumer groups, and large businesses have fought for network neutrality. Top consumer groups and leading law professors, including Tim Wu, Susan Crawford, and Barbara van Schewick have called for reclassification as the only way forward.
It’s sort of a fellowship of the ring. While some folks have tired of the fight, many have not. We need to keep fighting for Internet Freedom, and that fight includes fighting for net neutrality.
Disclosures: The author advised technology companies that opposed SOPA and has represented consumer groups and some companies supporting network neutrality.