NSA Leaks Bring the Whole Idea of “Net Neutrality” Into Question

Future Tense
The Citizen's Guide to the Future
Sept. 20 2013 11:55 AM

NSA Leaks Bring the Whole Idea of “Net Neutrality” Into Question

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In 2010, the FCC commission voted to adopted controversial net neutrality rules.

Photo by Chip Somodevilla/Getty Images

Last week, in the midst of ongoing NSA secret spying revelations ranging from billion-dollar efforts to make the private accessible to government by breaking Internet communications security to “near real time” collection of data from fiber optic networks, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in the case Verizon v. Federal Communications Commission. This case involves Verizon’s challenge to the FCC’s 2010 “Open Internet” rules, which are designed to codify what is known as “network neutrality.” Columbia law professor Tim Wu, who was a senior adviser for the FTC and is also a Future Tense fellow at the New America Foundation, describes network neutrality as the “idea” that “a maximally useful public information network aspires to treat all content, sites, and platforms equally.” (Future Tense is a partnership of Slate, New America, and Arizona State University.)

As a result of the NSA spying leaks, the debate about network neutrality has become more nebulous—and more important. Even if you are unsurprised by the extent of the NSA’s spying or actually supports it, anyone who cares about the Internet now faces a vexing question: What is this “Internet” that we purport to be protecting through the concept of “net neutrality?” And can it ever be “neutral”?

Under the net neutrality idea, the Internet—and particularly, Internet service providers like Verizon—should not, as Wu points out, block content, fail to disclose the nature of their services or offer “exclusive, preferential treatment to one application provider over others.” While “neutrality” is itself an ambiguous word, the general idea is that information should move “neutrally” through the Internet, regardless of the content or information being routed. Therefore, if one of Verizon’s customers wants Mickey Mouse cartoons, Disney should not be required to pay an extra fee to Verizon to have that content delivered to that customer optimally. Of course, the concern is not really about Disney; rather, it’s about the content provider that can’t pay the fee and has to get in line behind Disney.

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The Internet, so the argument goes, is a public network in which such discrimination should not be allowed. The Internet, as a public network, encompasses all Internet users, thus content discrimination on the Internet would impact all users of the Internet. Therefore, proponents of net neutrality argue that Verizon and other ISPs should not be allowed to “control what you do on the Internet.” And according to Verizon’s own lawyers, the network neutrality rules are, to an unspecified extent, having that very effect.

But the ongoing revelations about the extent of NSA spying undermines some of the basic premises of net neutrality. While net neutrality is not really about privacy concerns, NSA spying calls into question what ISPs control and what, if anything, is neutral or transparent (think: publicly known) about the Internet. Indeed, each of the above arguments in favor of network neutrality is challenged by NSA spying.

For example, why should I expect a public network to be different than a private network? The extent of the NSA’s spying reveals that the Internet is in fact in significant part (yet again) a U.S. network serving largely the U.S. government’s interests.

Additionally, why should I care if the content that I want is delivered how and when I want it, if the NSA is monitoring it in real-time? While it remains too early to draw any fixed conclusions about the nature and extent of NSA spying, particularly its technological meaning and implications, if the NSA spying revelations have so far meant anything, they mean that Internet consumers are likely not receiving the content neutrally and haven’t been for a while. Even a narrow definition of neutrality would be violated by a detour through and/or to the NSA.

On the issues raised by Verizon in the Court of Appeals, why should I be surprised, or even concerned, that Verizon and other ISPs under intense pressure to comply, voluntarily or otherwise, with the NSA’s demands, are seeking ways to generate revenue that would run afoul of FCC rules? Charging ”edge providers” (think Netflix or your favorite blog) a special fee every time a Verizon customer wants access to a provider’s content seems like an expected, even if unfortunate, side effect of the NSA-sponsored decline or elimination of the notion of neutral movement of data though the Internet. Because after all, the ISPs aren’t really controlling what I do on the Internet; ultimately, it’s the government setting the rules.

And what a set of rules they are. The same government that promulgated the open Internet rules in 2010 is also the government whose intelligence apparatus has laid waste to the notion that the Internet can ever again be meaningfully neutral in any sense of the word. But ironically, that’s what arguably makes net neutrality even more conceptually important today than it was in 2010. The mere idea of network neutrality may now be the last regulatory bastion of upholding the belief, the hope, for an Internet with transparent rules of information flow and information flows without regard to content.

Future Tense is a partnership of SlateNew America, and Arizona State University.

David S. Levine is an associate professor at Elon University School of Law, an affiliate scholar at the Center for Internet and Society at Stanford Law School, and the founder and host of Hearsay Culture on KZSU-FM Stanford University.

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