FCC Chairman Says He Will Take Action to Prevent ISPs from Controlling Users’ Activities
The Federal Communications Commission (FCC) will take regulatory action to prevent internet service providers (ISP) from blocking or controlling users’ access to online content. The announcement came from the FCC chairman after Comcast moved to manipulate internet access —limiting their freedom to navigate— who had engaged in file-sharing online services, presumably in an effort to control access to content for which the cable provider was not being paid per-content-access.
According to The New York Times:
Kevin J. Martin, chairman of the Federal Communications Commission, said Friday that Comcast, the nation’s largest cable company, should be sanctioned because it had interfered with the Internet connections of users who were exchanging files with other people.
Martin recommends a strong defense, in law and in regulatory practice, of network neutrality, the principle that ISPs cannot “favor some uses of their networks over others”. AT&T has repeatedly hinted at plans to create a new kind of Internet, stratified by bandwidth, where paying services would have the highest speed connections directed to them, and users attempting to access other sites would see their access slowed or obstructed.
Legislation to create, favor or protect a stratified web like that proposed by AT&T would be a direct violation of the First Amendment protection of the free press, and potentially of the First Amendment right of citizens to free assembly. The scheme is part of an attempt by ISPs to charge 3 times for the same access: charge the content provider for their access, the end-user for their access, then charge one or both for the special added bandwidth required to deliver the best connection speeds.
Comcast had claimed that its actions were designed to prevent the hoarding of bandwidth by users accessing filesharing sites like BitTorrent, but not only those trying to access the most bandwidth intensive files were blocked. The Times reports that a Comcast spokesperson has said the company “is developing a system that will slow the Internet connections of people who are moving large amounts of data at busy times.”
Among the concerns of net neutrality advocates, the FCC chairman and web planners, is the long-term meaning for a free society of not instituting firm network neutrality and freedom to navigate principles. If the stratified web were permitted to be deployed by ISPs, they would not only begin to decide what content is most visible or even most visited, they may seek to replace or take over the job of content provider, adjudicating what information can or cannot gain access to a less figurative “mainstream”.
It is not surprising, then, that so many critics argue such an ISP-controlled web would be the end of a free and independent press, blocking the free flow of information and undermining the very purpose of the world wide web, which American politicians have long touted as one of the greatest means ever conceived of advancing democracy.
The legislative parameters of the issue may be more deep-rooted and more complex than those related to media or the press:
“The normative message is that it is wrong to block the Internet,” said Tim Wu, a professor at Columbia Law School who is the chairman of Free Press, an advocacy group that filed the complaint about Comcast for which Mr. Martin is proposing a resolution.
“The deeper message he’s sending here is that users are sovereign. If two people want to send a file between each other, the carriers are not to get in the way.”
Professor Wu said the issues at stake go back to the common-law concept of a common carrier, which defined certain businesses — from blacksmiths to ferries — as so essential to commerce that their owners could not discriminate against any paying customer.
Prof. Wu’s analysis, as reported by The New York Times, means there could be interstate commerce clause concerns tied to any attempt to legislate in favor of ISPs’ blocking access to content. It has also been argued that while these providers appear to believe it is in their interest to assert more aggressive control of users’ activities, perhaps directing users to sites they privilege for profit, the overall result may be the slowing of commerce in general across the nation, and a deterioration of the innovative and communicative value of the Internet as such.
As the web moves toward a period of mounting hyper-convergence, in which everyday services and activities in physical space are integrated into a fabric of personal accounts, information gathering and communication, connectivity must be enabled, not blocked. It is in the fundamental interest of all involved that access be able to be constant, fast, uninterrupted, free and secure against unwanted intrusion.
It may actually be necessary to institute a regulatory policy whereby ISPs cannot “actively observe” the IP addresses being accessed by their users for anything other than statistical analysis, and possibly not even for that purpose, as access and content should not have a single controlling hierarchy.
Some assert that Comcast is showing its flaws, by needing to take action to cover up weaknesses in its overall network capacity, while others argue that the market will push users toward providers whose network infrastructure enables maximum possible access, bandwidth and download speed and quantity.
J.E. Robertson @ July 12, 2008