What the Net Neutrality Loss Has in Common With the Dreadful SOPA

What's to come?
Feb. 12 2014 3:36 PM

The Net Neutrality Loss Is as Bad as the SOPA Bill

And we can do something about it, too.

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2. Same bogus political strategy: “’Tis just a flesh wound.”

If you’re a big, unpopular industry dismantling the Internet, you don’t shout it from the rooftops. Sure, you may whisper it in board meetings and at congressional fundraisers. But in public, you tell a different story: “This is no big deal.”

During the SOPA fight, Congress was barreling toward passing a law that would have potentially made illegal most user-generated sites, from Twitter and Facebook to Reddit and Wikipedia. But SOPA’s supporters, in lobbying firms or sitting in Congress, wouldn’t say that. They’d go on TV and the radio to claim that SOPA didn’t affect American companies—only foreign companies and only a tiny handful of foreign companies at that, such as allofmp3.com and the Pirate Bay. They claimed everyone opposed to SOPA didn’t understand it, couldn’t read, or was just being alarmist.

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The same thing is happening with net neutrality. The phone and cable companies are claiming that they won’t start blocking websites and discriminating against them. This makes no sense. These companies spend hundreds of millions of dollars in lobbyists, lawyers, and advertisements during the past decade, and opposition to net neutrality is one of their core issues. They either waste their shareholders’ money, or they think the death of network neutrality would make them millions more.

Oddly, the FCC is playing the same game for different reasons. The FCC actually could claim legal power to enforce net neutrality by pointing to a different part of the Communications Act as its source of authority, but instead it’s trying to pretend that no change is necessary. The commission is apparently claiming that it can continue to enforce network neutrality based on the legal authority that the court already rejected. Despite a court decision striking down that very authority, the FCC chairman, who has affirmed his support for network neutrality, is now saying that “the FCC has the authority it needs to provide what the public needs—open, competitive, safe, and accessible broadband networks.” After the decision, the FCC has no power to prohibit phone and cable companies from blocking and discriminating against websites.

It’s like in Monty Python and the Holy Grail, when the Black Knight describes the hacking off of his arms as “just a flesh wound.” The FCC is bouncing around without limbs, claiming that everything is fine, as the carriers claim follow the SOPA playbook and pretend nothing on the Internet will change.

3. Same political disconnect: the Beltway vs. the public.

During the SOPA debate, “everyone” in Washington would tell you that nothing could stop SOPA. Congressional interns would lecture you on how well they understood Washington politics. They’d repeat what they heard: There was bipartisan support, and big business and unions agreed. Get out of the way and don’t even try to stop the bill. For a long time, nobody in Washington realized that SOPA had any opposition at all. Even when SOPA supporters recognized that some opposition existed, they assumed that one or two companies were behind it all—everyone else was a puppet. But then the protests reached such a critical mass that SOPA had to be put down.

There’s a similar disconnect today.

Many in Washington will tell you that nobody cares about net neutrality. They believe that the FCC responding to the court decision by firming its legal authority to enforce network neutrality—essentially declaring the ISPs to be “common carriers”—would be a nuclear action, detonating some sort of high-fission lobbying mushroom cloud all over the FCC chairman’s tenure. The view from within the FCC is that the phone and cable companies are just too powerful: They have armies of lobbyists, while the average American has at best a handful of underfunded advocacy groups.

But there is one big difference between SOPA and the net neutrality fight. With SOPA, the public merely had to stop a bad law. With network neutrality, the public has to force the FCC to adopt a new, good law. That’s even harder.

Meanwhile, outside of Washington, more than 1 million people have already signed a petition in favor of network neutrality. The largest online communities care about preserving the open Internet—and they are waking up to respond. They realize that, even though the term “net neutrality” could be catchier and they’d rather not become experts on matters of FCC jurisdiction, they want to make sure the Internet remains open and free and that the FCC has the necessary limbs to defend it.

I expect their noise to rouse Washington soon.

This article is part of Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.

Marvin Ammori is a Future Tense fellow at New America, a practicing lawyer, and a visiting scholar at Stanford Law School’s Center for Internet Society.

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