Will Massive Net-Neutrality Protest Change the FCC’s Mind?

Activists argue that it’s happened before. But the agency’s insulation from voters, and the uncertain participation of some of the internet’s largest players, will make it a tough lift.

AP Photo/Jeff Chiu
Brendan Bordelon
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Brendan Bordelon
July 11, 2017, 8 p.m.

On Wed­nes­day, ma­jor tech com­pan­ies and web plat­forms in the United States will team up with act­iv­ists for what’s be­ing billed as a wa­ter­shed mo­ment in the net-neut­ral­ity fight—a massive “Day of Ac­tion” op­pos­ing the Fed­er­al Com­mu­nic­a­tions Com­mis­sion’s plan to undo the leg­al un­der­pin­ning of rules pro­hib­it­ing the block­ing, throt­tling, or pri­or­it­iz­a­tion of web traffic.

The protest is slated to in­clude Google, Face­book, Amazon, Net­flix, Red­dit and vir­tu­ally every oth­er ma­jor web plat­form in Amer­ica. It will be the largest on­line ac­tion of its kind since 2012, when a co­ali­tion of act­iv­ists and top tech firms “blacked out” large swathes of the in­ter­net and channeled mil­lions of angry com­ments to law­makers sup­port­ing the Stop On­line Pir­acy Act and the Pro­tect IP Act. The out­cry killed both bills, which had been widely ex­pec­ted to pass, in a mat­ter of days. Act­iv­ists hope that a re­peat per­form­ance Wed­nes­day will sim­il­arly de­rail the net-neut­ral­ity roll­back ex­pec­ted at the FCC this fall.

But that may be wish­ful think­ing. It’s not yet clear how heavy­weights Google and Face­book are plan­ning to par­ti­cip­ate in the protest, and its over­all im­pact will be muted if their sup­port amounts to little more than lip ser­vice. More im­port­antly, it’s un­likely that Re­pub­lic­an FCC Chair­man Ajit Pai will be cowed by a pub­lic up­ris­ing the same way Con­gress was dur­ing the SOPA/PIPA fight.

If act­iv­ists have their way, the mil­lions of users who vis­it Google, Face­book, and any of the thou­sands of oth­er par­ti­cip­at­ing sites will be con­fron­ted with faux “alerts” in­form­ing them that their ex­per­i­ence is be­ing slowed or blocked by their in­ter­net ser­vice pro­vider. The alerts would dir­ect users to send mes­sages sup­port­ive of the FCC’s cur­rent util­ity-style reg­u­la­tion of in­ter­net pro­viders to their mem­bers of Con­gress, as well as the FCC it­self. Law­makers were in­und­ated with such mes­sages dur­ing the SOPA/PIPA fight, and the flood of com­ments is widely be­lieved to have pre­ven­ted the le­gis­la­tion from mov­ing for­ward.

But each web­site will par­ti­cip­ate as it sees fit Wed­nes­day, and act­iv­ists are con­cerned that Google and Face­book—both of which joined the Day of Ac­tion only late last week—may not choose to con­vert their tens of mil­lions of daily users in­to angry com­menters at the FCC and on Cap­it­ol Hill. While both com­pan­ies have lob­bied the FCC—through the D.C.-based In­ter­net As­so­ci­ation—to main­tain its cur­rent net-neut­ral­ity rules, un­til now they’ve been hes­it­ant to con­front the is­sue dir­ectly. And neither will tell re­port­ers or act­iv­ists how they plan to protest Wed­nes­day.

“These are com­pan­ies with tre­mend­ous reach,” said Evan Greer, the cam­paign dir­ect­or for pro­gress­ive tech ad­vocacy group Fight for the Fu­ture and one of the chief ar­chi­tects of Wed­nes­day’s protest. “They should use that abil­ity to spread in­form­a­tion to edu­cate in­ter­net users about how this is­sue af­fects them and give them mean­ing­ful ways to take ac­tion. It’s great if they put out state­ments in sup­port of net neut­ral­ity, but it would be much bet­ter if they stand up and fight along with the rest of the in­ter­net.”

Re­gard­less of the how ex­tens­ive the web gi­ants’ par­ti­cip­a­tion turns out to be, act­iv­ists still be­lieve Wed­nes­day will raise enough net-neut­ral­ity aware­ness—and cause enough head­aches at the FCC and on the Hill—to push poli­cy­makers to re­verse course in the same way the SOPA/PIPA protest did in 2012.

“I think [SOPA/PIPA is] really the closest ana­logy to this situ­ation,” said Corynne Mc­Sh­erry, the leg­al dir­ect­or at the Elec­tron­ic Fron­ti­er Found­a­tion. While she doesn’t be­lieve the turn­around will be quite as rap­id as in 2012, she’s con­fid­ent that in­creased pres­sure on the FCC and Con­gress will ul­ti­mately lead to the same out­come.

It’s less clear how in­ter­net users would in­flu­ence the poli­cy­mak­ing pro­cess this time around, however. Un­elec­ted FCC com­mis­sion­ers work with­in an in­de­pend­ent fed­er­al agency, and are in­su­lated from dir­ect polit­ic­al pres­sure. And if Wed­nes­day’s Day of Ac­tion is geared to­ward push­ing the FCC to re­con­sider its net-neut­ral­ity pro­pos­al by flood­ing the com­mis­sion’s site with com­ments, some doubt it’ll be par­tic­u­larly ef­fect­ive.

“The FCC is not de­signed to be re­cept­ive to a gen­er­al audi­ence,” said Tom Struble, tech-policy man­ager at the liber­tari­an R Street In­sti­tute. “You could have 99 per­cent of the com­menters at the FCC telling them to do one thing, and the FCC could still side with the 1 per­cent if they think the 1 per­cent of ar­gu­ments is the bet­ter ar­gu­ment.”

Even if Wed­nes­day’s protest is tar­geted at mem­bers of Con­gress, Struble thinks it’ll have little prac­tic­al im­pact if the goal is to push Pai to change course. “[Law­makers] have no con­trol over what Pai and the FCC does—they’re an in­de­pend­ent com­mis­sion,” he said.

But Bar­bara van Schewick, a law pro­fess­or and net-neut­ral­ity ex­pert at Stan­ford Uni­versity, be­lieves that the FCC’s in­de­pend­ence has its lim­its. “Chair­man Pai is up for re-nom­in­a­tion,” she said, adding that Re­pub­lic­an law­makers were “burnt really badly” by their re­peal of the com­mis­sion’s im­pend­ing in­ter­net-pri­vacy rules earli­er this year. “I think that has demon­strated to a lot of mem­bers that these are is­sues that their con­stitu­ents care about pas­sion­ately.”

And Mc­Sh­erry notes that FCC chairs have re­versed course un­der pub­lic pres­sure be­fore. Former Demo­crat­ic Chair­man Tom Wheel­er sig­ni­fic­antly beefed up his ini­tial net-neut­ral­ity pro­pos­al from 2014 to 2015, fol­low­ing an out­cry driv­en by HBO comedi­an John Oliv­er, a bit of ur­ging from Pres­id­ent Obama, and a smal­ler in­ter­net-centered protest. “A lot of people spoke up in many, many corners, and [Wheel­er] changed his mind and did the right thing,” Mc­Sh­erry said.

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