The FCC is doing the right thing in returning to internet openness

The Federal Communications Commission took a big step in November toward undoing the 2015 Open Internet Order and its vague, over-broad regulations by proposing the Restoring Internet Freedom Order (RIFO). This order is expected to pass this week in a party-line vote.

In an era of debilitating partisanship, it’s almost shocking to recall that a Republican Congress and President Clinton worked together in the ’90s to establish the permissionless regime that enabled both internet providers and large tech companies to transform our economy. The visionary agreement codified in the 1996 Telecommunications Act declared it “the policy of the United States” that the internet — including internet service providers and websites — should “remain unfettered from Federal or State regulation.” That policy helped the U.S. cement its position as the global leader in technology innovation.

This policy of restraint was pushed off a cliff in 2015. Following pressure from the White House, the FCC’s Open Internet Order classified internet access as a “Title II” service. This drastic move subjected the internet to telephone laws, most dating back to the New Deal. The order represents creeping FCC jurisdiction as its traditional areas of regulation — broadcast media, cable, and telephone — either diminished in importance or are transformed by the internet.

Despite being branded by advocates as “net neutrality,” applying 1934 phone regulations to the internet has had unpredictable legal and practical consequences. For example, as the Electronic Frontier Foundation and American Civil Liberties Union wrote in recent FCC filings, the current rules don’t apply to ISPs who make it clear to customers that they offer filtered internet service. The order may therefore have the unintended effect of encouraging internet service providers to filter content solely to avoid costly legacy regulations.

Following this week’s vote, RIFO is expected to face an immediate challenge in the courts. Activists and lobbyists will likely argue, just as activists and lobbyists have argued against the 2015 order, that the commission’s change in policies is arbitrary and capricious, the classification decision isn’t a permissible reading of the statute, and the commission lacks factual support for the order.

This process will again be arduous and costly. Just as with the 2015 order, which is still awaiting review by the Supreme Court, the challenge to the 2017 order is likely to be filed in and heard by the DC Circuit. After an initial decision, the losing party will almost certainly again appeal to SCOTUS. If so, there is a good chance that the legality of the 2017 order will not be settled before the next round of presidential elections.

Instead of spending time throwing stones at the FCC’s process,s, leaders in Congress could focus their efforts on ending this ping-pong regulatory dynamic. How? By, once again, establishing a bipartisan solution to preserving and protecting a free and open internet.

The internet has changed significantly in the past 20 years, and there is growing consensus around the need to revisit our 1990s internet laws. But only through congressional action is it possible to preserve the crucial freedom to innovate that allows us to lead the world’s tech economy, while also preventing tech and telecom companies from abusing market power and engaging in anti-consumer practices. What’s missing is the political will to craft an effective and bipartisan solution, and to rise above continued efforts to posture and further the partisan divide.

Garrett Johnson is co-founder of Lincoln Network, a national community of technology professionals, and previously founded a Y Combinator-backed startup based in Silicon Valley. Brent Skorup is an attorney and a research fellow at the Mercatus Center at George Mason University.

I understand economic freedom to offer and price services so as to maximize profits, that is capitalism. I also understand the right to protect artistic and editorial thought. Yet the internet has become such an integral part of modern life that applying constraints on information will create another layer of control and elitism over our lives.

The problem with “net neutrality” treating internet as a public utility is that it puts everything under government control and will give us an internet that is similar to the post office, the railroads or any other “public service.” The companies become nothing but giant plodding bureaucracies, service suffers, innovation disappears, and the government hovers over every bit and byte.

It's much simpler than what you are saying. The people who want unlimited streaming dreck, including some freepers, want "net neutrality". Because as a point of fact, the ISPs will only "censor" or charge more for content that clogs their network. There is only one such type of content: streaming HD video.

There is no way ISPs can censor any other content. They can't even censor any HD video so long as the customer is willing to download it, then watch it later (non-streaming). So it is not actually the dreck that is protected by "neutrality" but the instant-gratification of streaming dreck.

But let's just say that Comcast decided to offer "Comcast Republic" and charge extra for anyone using "Free Republic". First it would never stand under first amendment grounds. But second, there would ways in the first day to get to Real Free Republic via Tor or one-off proxies. It would be messy because there would be imposters taking advantage of the situation. But it would work and eventually get smoother. Chinese internet users do route around censorship routinely and they are up against their entire state apparatus, not just Comcast.

But let's be serious. Comcast is not going to censor the internet in any way, shape or form. They are going to quite appropriately charge more for services that impact other users by chewing up excessive bandwidth.

You could re-package FR as a P2P system and run it on a browser plugin...stand-alone or with a helper app.

Or you could take an open-source browser like Firefox/Mozilla, create a Freeper Browser, and run it that way.

You could spread the archive of posts out to hundreds of peers to save locally as compressed, encrypted files.

One person, or a group, could control it using encryption...so it would not devolve into a nightmare.

It could be VERY fast...and virtually impossible to censor or shut down.

Also, it would be cheap to operate.

But please, dear God, add in an EDIT BUTTON.

Those sound like good ideas. I'll have to read more but it seems like group control would be necessary. It seems to me that you could entrust some number of users, including all the current moderators, with a shared private key. Or give them each their own private keys and create a trusted set of public keys so that everybody knows who to trust.

I can see how to post a comment you would encrypt with one or more of those public keys and send it those people. I'm not sure how they send it back out encrypted to all other users, but I'm sure there's a way and of course it can all be automated.

It’s an idea for the hopefully not to near future....a future where FR’s existence might be at risk from illness or censorship.

It’s certainly do-able, the talent to implement is right here on FR.

It would take a literal police-state to turn it off.

You could even run the system through the TOR network without too much added fuss...just mod the TOR browser bundle since it is open-source.

I’m getting speeds over TOR approaching 20Mbps

This article twists what the FCC is doing by rolling back the ambiguous and Orwellian term “net neutrality”. It is NOT internet “openness” that is being restored by internet “closed-ness” (i.e. property rights) that are being restored. Property rights assumes fences, boundaries and the right to exclude not openness and socialism to plunder the internet “commons”.

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