|By Esmeralda Swartz||
|January 27, 2014 08:00 AM EST||
Despite the fact that the net neutrality debate is a discussion that has been ongoing for years, a January 14th ruling from the United States Federal Court of Appeals has stirred the pot once again. The court's decision has created a renewed upsurge in comments, opinions and future-gazing, with debate squarely landing in two very different camps. And, as is to be expected, there is actually very little neutrality.
One is left to ask if it is in fact possible to look at this topic objectively, without taking sides from the outset. Perhaps the passage of time has helped to put the topic in perspective. It may be that the Internet itself, which plays such a central role in our daily lives, has achieved a sort of self-defining momentum that will in due course make some of the net neutrality debate academic.
In this blog and follow-up posts, I'll try to keep the discussion of the recent court decision short and to the point. The actual decision document is here for you to read if you have a couple of hours to spare, and it's worth reading closely to get the true sense of what this decision is all about. Strangely enough, it's not really about net neutrality at all.
The Appeals Court decision is really all about the FCC's Open Internet Order. Essentially, it tears down the Open Internet Order's rules that prohibit Internet service providers (ISPs) from site blocking and from providing preferential service to chosen edge providers. It does not overrule the transparency requirement, which says that ISPs must disclose their traffic management policies. If this federal court decision stands, it essentially means ISPs are allowed to block sites and provide preferential service to some edge providers, but if they do so, they must tell us all what they are doing.
The basis for this decision is important. The judges did not closely examine the pros and cons of Internet openness because that was not what the case was about. The complaint against the FCC is that it overstepped its jurisdiction and that it was not in fact legally entitled to make these rulings. The judges for the most part agreed with the complaint and struck down two significant rules that, in the eyes of the FCC, sought to preserve the "continued freedom and openness of the Internet."
The Wall Street Journal proclaims this decision as a "Victory for the Unfettered Internet." The New York Times, in contrast, describes this as a "Disappointing Internet Decision" on the grounds that it "could undermine the open nature of the Internet." Most vocal opinions are divided along these lines. They are all reading the same decision, but one group believes this will make the Internet more unfettered and open while the other believes the opposite.
Advocates on each side assert that they uphold the principle of an open and unfettered Internet, but their interpretations of what "open and unfettered" means in practice leads (or drives) them to conflicting conclusions. Since different takes on this concept help drive the debate, let's look at those perspectives to see what light they cast on the outcome.
Some people regard "open and unfettered" as meaning that governments should leave the Internet alone. That means no government censorship, no blocking of sites and no monitoring user activity. The traffic must flow unimpeded. Most participants in the U.S. debate would agree on this, so perhaps some meeting of the minds is possible? Not likely, because there is also an opinion that "open and unfettered" means no government regulation either. That means no control of pricing, no rules that specify in any way how ISPs deliver their parts of this immense global cooperative enterprise, and certainly no treating Internet access like a phone service.
To some others, "open and unfettered" means that the corporations that provide Internet services should themselves play by these rules. In other words, they too, just like governments, should refrain from censorship, blocking and tracking what users do (at least without consent of each user). If those companies do not allow traffic to flow unimpeded, then the Internet is in reality not open and unfettered.
Let's be clear that not everybody views a completely open and unfettered Internet as a good idea. Various governments around the world limit Internet access with various forms of site blocking, censorship, user tracking and traffic interception. Presumably the officials and politicians responsible for this believe that their individual varieties of fettering are a good thing, overall.
We also know that some Internet service providers engage in, or have engaged in, site blocking, port blocking and scrutiny of user activity, again presumably because decision makers in those companies and organizations see benefits to doing so.
Where do the various parties fall in the spectrum as a result of the recent ruling? And how will it impact the existing system? I'll get into that in Part II. In the meantime, check out our other thoughts on the latest technology trends for the coming year.
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