Net neutrality wars entangle free speech

A lawmaker's bill would require Web sites to conform to the same net neutrality rules as broadband providers

The spokesman seems to be misreading the FCC's net neutrality proposal, at least as it currently stands. The FCC's proposed rules would allow broadband providers to manage their networks.

What the rules wouldn't allow is for broadband providers to selectively discriminate against Internet traffic. However, applying that kind of rule to a search engine or a Web site becomes troublesome, at best.

Here's the language in the Stearns bill: "The Commission shall apply and enforce any regulation governing the rates, terms, conditions, provisioning, or use of an information service ... or an Internet access service on a nondiscriminatory basis between and among broadband network providers, service providers, application providers, and content providers."

There are a lot of problems here, not the least of which is how a search engine or a Web content provider would actually achieve net neutrality.

For some Web applications, there is an expectation of net neutrality. Internet users expect a service like Skype to treat all calls the same. But what the heck would net neutrality look like for a Web content provider? How exactly would a news site achieve net neutrality?

In addition, the bill doesn't define what a "content provider" is. There's no language in the bill limiting the content-sharing rules to commercial content providers. On the Internet, we're all content providers. If the Stearns language becomes law, all Web sites could become, basically, the same collection of stream-of-consciousness rants from any "content provider." There would be little difference between NYTimes.com and 4chan.org.

Stearns didn't invoke the First Amendment at the AFP event, though he should have considered it. Another speaker at the press conference, however, did raise free-speech concerns in a rather creative reading of the First Amendment and the FCC's net neutrality proposal.

At the event, some net neutrality opponents voiced objections that make some sense. Some are concerned that the FCC's efforts to reclassify broadband and create net neutrality rules will create market uncertainty and cause broadband investment to slow.

But conservative antitax activist Grover Norquist took the argument a step further. Norquist, president of Americans for Tax Reform, compared the FCC's recent efforts to reclassify broadband as a common-carrier type of service to China's vast censorship efforts.

"The idea of putting policemen and regulators throughout the Internet ought to frighten everybody," he said. Backers of net neutrality rules are "whining that the Chinese are doing exactly what they're advocating we should do here."

In Norquist's mind, this new police regime would apparently decide what people can do on the Internet, never mind that the goal of net neutrality advocates is to give Internet users unfettered free speech. "This is an incredible attack on the First Amendment," he said.

Norquist and others imagine some huge FCC monitoring system to track net neutrality violations. The FCC's move toward broadband reclassification is in its infancy, but no one at the FCC has called for an Internet police force to monitor the activity of broadband providers.

Norquist may not realize this, but in the handful of cases where the FCC has looked into violations of its net neutrality principles, it's been broadband customers who have reported the problems. In a recent Comcast case, which led to the appeals court ruling against the FCC, a customer with a networking background first noticed that some of his applications seemed to be running slower than the others.

Norquist seems to assume that the FCC would have both the technological ability, and the inclination, to monitor a significant amount of Internet traffic. There are no indications it has either.

There are a lot of legitimate concerns about both net neutrality rules and the FCC's efforts to reclassify broadband. Opponents of both efforts, however, do themselves no favors by twisting the First Amendment into knots in their drive to stop the FCC.

(Grant Gross can be reached at grant_gross@idg.com.)

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