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.

Wikipedia blacked out its English-language site for a day in protest against proposed U.S. anti-piracy legislation.SOPA/WIKIPEDIA
Wikipedia blacked out its English-language site for a day in protest against SOPA.

Photo by Gary Cameron/Reuters

Life before the Internet sucked. My life as a kid growing up in suburban Michigan consisted of urban sprawl, shopping malls, and bad television (except 30 minutes of Seinfeld every Thursday). Adults told you that educated people followed the news, but most small towns had one mediocre newspaper, and local TV news had cats stuck in trees and house fires. (Thanks, adults.) To learn anything, you had to drive to a bookstore; subscribe to a stack of magazines; or schlep to a library, go through a card catalog, discover a book that someone had already checked out and was overdue, request the book back from that person or order it through interlibrary loan, and wait a few more weeks for the book to come while watching bad sitcoms (Seinfeld notwithstanding) with loud commercials.

It was barbaric.

Then everything changed. With the Internet, anyone could create any website or digital technology, or spread any message—without having to hire a lawyer, negotiate a deal, or beg to get an editor or TV producer’s attention.

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From the beginning, the open Internet has had its enemies. Phone companies wanted to impose long-distance charges on dial-up, but the Federal Communications Commission stopped them. Later, cable companies imposed limits on streaming video. Hollywood studios and record labels just wanted to keep selling you overpriced CDs and DVDs while lobbying for jail time and thousand-dollar fines for “pirates.”

A few weeks ago, an appellate court ruled that the FCC didn’t have the power to stop phone and cable companies from blocking websites or, the more obvious scenario, from treating some sites worse than others. (It was actually a legalistic loss: The FCC can regain its power simply by writing its opinion differently. It will just take some political courage, as I wrote for Slate.) This decision meant that the phone and cable companies now control your access to the heavenly wonders on the Internet: They can decide what you watch, share, and buy online through your desktop, laptop, or tablet. They are like St. Peter determining who comes in and out of heaven’s gate, except they are less likable, less wise, and have a profit motive.

I have spent the past 10 years working on Internet freedom issues, including the 2011 and 2012 fight against SOPA, the Stop Online Piracy Act, and its companion bill PIPA, the Protect IP Act—a fight that ended in Wikipedia, Reddit, and other sites blacking out their sites for one day in protest. The net neutrality loss reminds me of the proposed SOPA legislation in three important ways.  

1. Same economics: “All your base are belong to us.”

Both SOPA and network neutrality’s loss would enable big companies—the studios and Internet service providers—essentially to extort the Internet companies of most of their profits. This is because both would put Internet companies under threat of being inaccessible, because of either a movie studio’s lawsuit or a major ISP’s technical discrimination. To avoid that, the companies would fork over much of their money.

SOPA would have handed copyright holders a powerful threat: a court order blocking a website’s domain name, payments, and advertising. Armed with that threat, the copyright holders could attempt to extract every spare penny from a site accused of hosting or linking to pirated content. For example, if SOPA had passed and then users illegally shared movies on Tumblr or Google Plus, a copyright holder could threaten those companies with orders that would shut down their businesses. Tumblr and Google would have to pay almost any sum to stay in business—all the profit that Google would have made off of Google Plus would go to, for example, AT&T. The record labels and movie studios would probably think this was completely fair: They suggest that they provide nearly all of the value to YouTube, Netflix, iTunes, and the Internet at large. In their view, people go online for the studios’ amazing content, and they deserve a cut of it all.

Similarly, without net neutrality, phone and cable companies with tens of millions of users would be able to threaten to block a website. That threat puts the phone and cable companies in a plum negotiating position to ask for most everything, leaving just enough for a company to continue covering costs. The carriers also seem to think that would be fair: To hear the carriers talk about the Internet, you’d think they, and not Google, Netflix, or Facebook, provide all the value because they provide the “pipes.”

Money paid for net neutrality violations would eventually go to the "Comcast" half of Comcast-NBC; for SOPA, it would have gone to the "NBC" half.

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.

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.