The Open Internet Rules Head to Court: What’s at Stake

Written by David Sohn

Amid this summer’s ongoing revelations of widespread government surveillance, another Internet policy issue with Constitutional implications is bubbling back up to the surface. On Monday, the DC Circuit Court of Appeals will at last hear oral argument in Verizon’s 2011 challenge to the FCC’s 2010 Open Internet Rules. Yes, Internet Neutrality is coming back onto DC’s radar. And while the particular arguments we will hear on Monday may well focus on seemingly arcane legal questions about the FCC’s statutory mandate, this case carries major implications for the future of communications in the United States. There are three big picture points that stand out.

First, there is nothing radical about the Open Internet rules. They simply protect against fundamental changes in the way the Internet works, by ensuring that consumers will continue to have access to the full Internet without tampering or favoritism. They also promote innovation and competition – the wide-open platform on which new ideas and start-ups proliferate, empowering users with new and constantly evolving information resources and communications capabilities. The rules therefore protect and promote the unfettered environment for individual free expression that has defined the Internet for decades.

Second, the truly radical issue raised in this case is Verizon’s claim that it has a First Amendment right to “edit” its users’ communications. CDT rebutted this audacious argument in our amicus brief in the case, and the L.A. Times just published an excellent editorial denouncing it as well. Commandeering the First Amendment in support of the widespread blocking and tampering with users’ speech and access to information would turn the right of free expression on its head, relegating the speech interests of Internet users to second class legal status. “Editing” Internet access would turn it into something a lot more like cable TV – a centrally controlled medium where the service provider decides what options users will get.

That’s not the Internet, and it’s not only backwards; it’s dangerous. By trying to paint this case as raising a constitutional issue, Verizon hopes to do far more than just strike down the Open Internet Rules; it seeks to completely wall off Internet access services – and possibly more – from any possibility of government oversight. If the court were to accept the argument, it would instantly call into question roughly a century’s worth of settled law on telephone over common carriage networks.

Which brings us to point three: While the FCC’s jurisdiction in this area needs to be carefully limited, the notion that the US communications regulator shouldn’t have any authority over 21st-century communications is nonsense. We need to get to a middle path, with the FCC having reasonable and narrowly focused authority regarding the physical transmission function (the Internet’s “on ramps” or “pipes”) while preventing that authority from creeping up the stack to the multitude of Internet-delivered content and services.

The FCC should not and does not have general jurisdiction to regulate the vast universe of speech, commerce, and civic and social activity that rides on top of the Internet. This limitation stems not just from the Communications Act, but also from the Reno v. ACLU decision affording online speech the highest level of protection against government interference.  The limitation should be clearly spelled out and understood.

But there is a long history of FCC jurisdiction regarding the provision of physical communications infrastructure. Serving the public interest by ensuring that infrastructure operators don’t abuse their position has long been a core FCC function. With respect to data services, the FCC worked for decades, starting in 1971 (the launch of a series of proceedings known as the “Computer Inquiries”), to guarantee that independent services would retain nondiscriminatory access to the telecommunications network. Nothing in the 1996 Telecommunications Act remotely suggested that the FCC should be stripped of this longstanding function, just as data- and computer-related services were assuming an unprecedented role in the nation’s commerce, civic discourse, education, and government. With the Internet now 17 years further entrenched into every aspect of our lives, allowing the FCC to do its job and take the necessary steps to preserve the Internet’s remarkable power to drive innovation, commerce, and free expression is more important than ever.

CDT hopes the court understands the stakes; rejects the radical effort to wall off Internet services from all possible oversight and safeguards; and looks to forge a path towards an appropriate, and appropriately narrow, vision of FCC jurisdiction in this space.

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