The Net Has Never Been ‘Neutral’

Regardless of the FCC’s new rules, big websites have always been able to pay for better service.

A golden statue of Lady Justice in Bruges, Belgium
National Journal
Brendan Sasso
May 13, 2014, 1 a.m.

The In­ter­net is about to mutate from an egal­it­ari­an uto­pia in­to a cor­por­ate hell­s­cape.

At least, that’s the ar­gu­ment from some people ral­ly­ing op­pos­i­tion to the Fed­er­al Com­mu­nic­a­tions Com­mis­sion’s pro­pos­al for weak­er net-neut­ral­ity rules.

The ar­gu­ment goes that the In­ter­net has al­ways been a bas­tion of equal­ity, a level play­ing field where all web­sites load at the same speed without hav­ing to pay any “tolls.” And the FCC is about to throw all that away.

FCC Chair­man Tom Wheel­er is push­ing new reg­u­la­tions that would al­low In­ter­net ser­vice pro­viders to charge web­sites for spe­cial “fast lanes,” sub­ject­ing any web­site that can’t pay to worse levels of ser­vice. The pro­pos­al would cre­ate a two-tier In­ter­net where rich com­pan­ies can de­liv­er high­er-qual­ity videos and oth­er con­tent than every­one else, the crit­ics warn.

“The geni­us of the In­ter­net is that it al­lows in­nov­a­tion without per­mis­sion, not in­nov­a­tion only after cut­ting a deal with the ISP and re­ceiv­ing the FCC’s bless­ing for it,” a group of 11 Demo­crat­ic sen­at­ors wrote in a re­cent let­ter to the FCC, ur­ging the agency to en­act stronger net-neut­ral­ity reg­u­la­tions.

“Sanc­tion­ing paid pri­or­it­iz­a­tion would al­low dis­crim­in­a­tion and ir­re­voc­ably change the In­ter­net as we know it.”

But the truth is that the In­ter­net has nev­er been the level play­ing field that some seem to be­lieve. Big web­sites have al­ways been able to pay for faster ser­vice — and the biggest ones are already spend­ing bil­lions to get it.

For ex­ample, just about all ma­jor web­sites pay for con­tent de­liv­ery net­works, or CDNs, to carry their traffic. Those CDNs (com­pan­ies like Akamai and Level 3) build net­works of serv­ers around the coun­try to store web­site data.

That way, a Face­book user in New York City try­ing to watch a friend’s video clip doesn’t have to re­trieve data all the way from Face­book’s headquar­ters in Menlo Park, Cal­if. In­stead, the user is ac­tu­ally con­nect­ing to a much closer serv­er owned by a CDN that Face­book has hired.

A world­wide net­work of serv­ers helps to speed up web­sites, ease con­ges­tion, and is bet­ter able to handle cy­ber­at­tacks.

“They are a com­mer­cial ser­vice you have to pay for,” Chris­toph­er Yoo, a law pro­fess­or at the Uni­versity of Pennsylvania, ex­plained. “And it’s good for the In­ter­net.”

It would be im­possible for someone to start a high-qual­ity video stream­ing site in a gar­age without pay­ing for some in­ter­me­di­ary to handle traffic. The site would grind to a halt as soon as a sig­ni­fic­ant num­ber of people tried to use it.

Small start-ups are nearly al­ways at a dis­ad­vant­age — and the In­ter­net is no ex­cep­tion. For ex­ample, skyrock­et­ing band­width bills re­portedly con­trib­uted to You­Tube’s de­cision to sell it­self to Google in 2006.

Many of the largest com­pan­ies like Google, Apple, Amazon, and Mi­crosoft build their own data cen­ters to en­sure a smooth ser­vice for their users, in­vest­ing bil­lions of dol­lars to give their web­sites an edge over the com­pet­i­tion.

The In­ter­net’s ex­ist­ing in­equit­ies are ac­know­ledged both by ad­voc­ates and op­pon­ents of net neut­ral­ity reg­u­la­tions.

Kev­in Werbach, a busi­ness pro­fess­or at the Uni­versity of Pennsylvania, and Phil Weiser, the dean of the Uni­versity of Col­or­ado Law School, are both sup­port­ers of net-neut­ral­ity reg­u­la­tions. But in a re­cent Huff­ing­ton Post op-ed, they em­phas­ized that there’s noth­ing new about com­pan­ies pay­ing for bet­ter In­ter­net ser­vice.

“Say­ing the FCC ac­tion will ‘force com­pan­ies to pay tolls’ or ‘cre­ate a two-tier In­ter­net’ makes it seem as though com­pan­ies such as Net­flix and Google cur­rently use the In­ter­net for free. They don’t,” the pro­fess­ors wrote. “They pay ac­cess pro­viders; they pay in­ter­me­di­ar­ies called trans­it pro­viders; they pay CDNs; and they pay to build or buy their own in­fra­struc­ture.”

Pay­ing to en­sure fast ser­vice isn’t the only way that some web­sites have an ad­vant­age over oth­ers.

Search en­gines, par­tic­u­larly Google, are the main tool that many people use to find in­form­a­tion on­line. Web­sites at the top of a search page have a huge ad­vant­age over sites bur­ied un­der pages of res­ults. Slight tweaks to Google’s search al­gorithm can make or break a com­pany.

Crit­ics of Google (such as Mi­crosoft and Yelp) ar­gue that the gov­ern­ment should im­pose “search neut­ral­ity” to bar Google from fa­vor­ing its own ser­vices — such as Google Maps, Google+, and You­Tube — in search res­ults.

Google faced a nearly two-year in­vest­ig­a­tion by the Fed­er­al Trade Com­mis­sion in­to its search prac­tices. In early 2013, the FTC con­cluded that there was “some evid­ence” that Google ma­nip­u­lated its search res­ults to high­light its own ser­vices. But the com­mis­sion chose not to bring charges, say­ing that in many cases, Google’s changes im­proved the “user ex­per­i­ence” by re­li­ably pro­du­cing more use­ful res­ults.

The idea of total neut­ral­ity is es­pe­cially ab­surd for people who ac­cess the In­ter­net on smart­phones and tab­lets.

Apple has ab­so­lute power over what mo­bile apps are al­lowed in its store. Apps can re­portedly be banned for be­ing of­fens­ive, us­ing too much data, be­ing too glitchy, hav­ing small font sizes, in­fringing on trade­marks, or nu­mer­ous oth­er reas­ons.

In a re­cent in­ter­view, Jimmy Wales, the founder of Wiki­pe­dia, said the Apple App Store is more of a threat to the open­ness of the In­ter­net than po­ten­tial ab­uses by In­ter­net pro­viders.

“We just need to look at the Apple App Store “¦ where everything that runs on your iPhone or iPad has to be ap­proved by Apple, with them tak­ing a huge cut of the rev­en­ue at every step, with no real com­pet­i­tion in sight. Con­sumers should be very wor­ried about that,” Wales said.

Al­though the In­ter­net has nev­er been per­fectly neut­ral, that doesn’t ne­ces­sar­ily mean the FCC’s at­tempts to po­lice In­ter­net pro­viders are fu­tile — or that the equal­ity gap couldn’t grow.

Com­pan­ies like Com­cast ex­er­cise enorm­ous power over our ac­cess to in­form­a­tion be­cause they own the “last mile” of cable in­to our homes. Con­trolling the on-ramp to the en­tire In­ter­net makes them a much more power­ful gate­keep­er than a search en­gine or a so­cial net­work.

“The ques­tion isn’t wheth­er the In­ter­net treats every­one equally — be­cause it doesn’t already,” said Har­old Feld, the seni­or vice pres­id­ent of con­sumer-ad­vocacy group Pub­lic Know­ledge. “The ques­tion is wheth­er adding a new level of dis­crim­in­a­tion in the last mile is the crit­ic­al dif­fer­ence.”

The FCC first en­acted net-neut­ral­ity rules in 2010, but a fed­er­al Ap­peals Court struck them down earli­er this year. Wheel­er is now try­ing to re­write the rules in a way that can sur­vive court chal­lenges.

His pro­pos­al would still bar In­ter­net pro­viders from block­ing web­sites. The pro­viders would, however, be able to charge sites for faster ser­vice as long as the agree­ments are “com­mer­cially reas­on­able.”

Wheel­er has said he plans to crack down on any ar­range­ments that are an­ti­com­pet­it­ive, bad for con­sumers, or in­fringe on free speech. Pro­viders would not be al­lowed to fa­vor traffic from an “af­fil­i­ated en­tity” — so Com­cast couldn’t boost con­tent from NBC (which it owns). In­ter­net pro­viders would also not be al­lowed to de­grade their over­all level of ser­vice to make the “fast lanes” more ap­peal­ing.

Wheel­er’s pro­pos­al, set for a pre­lim­in­ary com­mis­sion vote on Thursday, has promp­ted an out­pour­ing of pub­lic an­ger. Crit­ics ar­gue that any “pay-for-pri­or­ity” schemes on the In­ter­net are an ab­use of mar­ket power by broad­band pro­viders and are in­her­ently bad for con­sumers.

But re­gard­less of what hap­pens with the FCC rules, even the worst-case scen­ari­os won’t be cre­at­ing in­equal­ity on the In­ter­net — only ex­pand­ing it.

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