The end of net neutrality will cripple the First Amendment

FCC chair Ajit Pai

Previously published at WGBHNews.org.

The guiding principle behind the First Amendment is that we all have a right to be heard. It is up to each of us, of course, whether we choose to listen. But no one — not the government, and certainly not the giant corporations that control so much of our communications infrastructure — may prevent anyone’s speech from competing in “the marketplace of ideas.”

But now that the internet has become by far the most important and prevalent means for conveying free speech, the demise of the First Amendment may be at hand. If, as expected, the Federal Communications Commission votes on Dec. 14 to do away with net neutrality, then the distribution of news, information, and entertainment will become utterly dependent on the whims of internet service providers (ISPs) such as Comcast and Verizon. If you want your website to load quickly and be easily accessible, then you may have to pay a fee to the ISPs. And if you can’t afford it, well, too bad.

Net neutrality is the idea that all internet traffic should be treated equally — that ISPs shouldn’t be able to speed up some services that are willing to pay and slow down or even block others. A hot topic for many years, it was finally enacted as a binding rule by President Obama’s FCC in 2015. With President Trump now in charge, though, the FCC has a new Republican chair — former (and, no doubt, future) telecom lawyer Ajit Pai — and a three-to-two Republican majority.

Hypotheticals put forth by net-neutrality advocates tend to focus on non-journalistic scenarios. For instance, in 2004, according to a Daily Dot round-up of net-neutrality violations, a North Carolina telecom called Madison River Communications blocked Vonage as it was attempting to launch its voice-over-internet phone service. The problem, you see, was that Vonage threatened Madison River’s landline business. The FCC, then as now under Republican control, fined Madison River $15,000, which just goes to show that dog-eat-dog capitalism was not always a matter of GOP orthodoxy. In 2011, reports the media-reform organization Free Press, Verizon blocked the Google Wallet payment system so that it could promote its own software instead. There are plenty of other examples as well.

The threat to journalism posed by the end of net neutrality is also very real. Imagine that a major media corporation owns the largest television station and largest newspaper in a given market (now allowed thanks to the FCC’s recent decision to abolish the cross-ownership ban), and that it pays the telecoms a hefty fee to guarantee that its digital platforms will load quickly and play video flawlessly. How can, say, a small start-up news organization compete?

Or imagine a ban on certain types of content — as happened in 2007, when Verizon briefly blocked pro-abortion-rights text messages. As the St. Louis-based commentator Sarah Kendzior wrote Sunday in The Globe and Mail of Toronto:

The threat to net neutrality highlights the reliance on social media and an independent press for political organizing in the digital age. Should net neutrality be eliminated, those avenues will likely become curtailed for much of the public or driven out of business due to loss of revenue. Without the means to freely communicate online, citizens will be far less able to challenge the administration. It doesn’t matter what cause someone prioritizes: The elimination of net neutrality will impede the ability to understand the cause, discuss it and organize around it.

So what is to be done? At this point, it may seem hopeless. The FCC will repeal net neutrality, and that’s the end of it. But there are a few threads we can grasp onto.

For one thing, we are beginning to learn that many of the messages the FCC received in support of ending net neutrality were bot-generated fakes. It’s not clear exactly how many, but Eric Levitz reports in New York magazine that more than a million identical anti-net neutrality messages had a pornhub.com email address. New York Attorney General Eric Schneiderman is investigating, and has complained that the FCC is being uncooperative in turning over the documents he needs.

For another, it is possible that the legal system may intervene and keep net neutrality alive. Columbia University law professor Tim Wu wrote in The New York Times last week that “by going this far, the FCC may also have overplayed its legal hand. So drastic is the reversal of policy (if, as expected, the commission approves Mr. Pai’s proposal next month), and so weak is the evidence to support the change, that it seems destined to be struck down in court.”

Finally, it’s never over until it’s over. Last week Jessica Rosenworcel, a Democratic member of the FCC, wrote an op-ed for the Los Angeles Times urging the public to speak out and stop the agency from voting for repeal. “Before my fellow FCC members vote to dismantle net neutrality, they need to get out from behind their desks and computers and speak to the public directly,” she said. “The FCC needs to hold hearings around the country to get a better sense of how the public feels about the proposal.”

Despite all this, it is more likely than not that the FCC will repeal net neutrality. What options will we then have? Perhaps a company with real financial power, such as Google or Amazon, will roll out its own network, with net neutrality guaranteed. All you would have to lose is your privacy, or what little remains of it. Or, as this Vice story recommends, we should encourage the development of local ISPs, including municipally owned systems. (Thanks to the indefatigable Saul Tannenbaum for sending me the link.)

It would all be so much easier, though, if the FCC did the right thing. If you favor keeping net neutrality, what is the best way of registering your views? The FCC website is a maze. But Free Press has started a petition urging Pai to cancel the Dec. 14 vote and leave net neutrality in place. As a journalist, I rarely take direct political action except in matters like this, where freedom of speech and of the press is at stake. I’ve signed, and I hope you’ll consider doing so as well.

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