Saving Net Neutrality

Ernesto Falcon, Electronic Frontier Foundation

Portrait of Ernesto Falcon, by Gretchen Röehrs Ernesto Falcon, by Gretchen Röehrs

Donald Trump loves Twitter, but he doesn’t seem like the most technologically sophisticated person in the room. During one of the presidential debates, he rambled strangely about “the cyber,” and praised his ten-year-old son as a computer genius. But Trump, whatever his degree of digital literacy, has embraced an intensely deregulatory agenda. As a result, the Republican Party and the telecom industry see his Administration as an opportunity to roll back the significant gains on internet governance made by the Federal Communications Commission (FCC) under Obama.

Ernesto Falcon is Legislative Counsel at the Electronic Frontier Foundation (EFF), and a former Congressional staffer. He talked to us about what the coming assault on internet freedom will look like, and how the telecom industry is using Trump to further consolidate its power. He also shared a few thoughts on the role that both rank-and-file tech workers and ordinary citizens can play in fighting the corporate domination of the internet.

Let’s start off with defining net neutrality itself, for folks who may not be familiar with the concept. What is net neutrality, and why does it matter?

Net neutrality is the principle that all information, all platforms, all applications, and all services, are treated equally by internet service providers (ISPs). So that there’s no preferential treatment and no distortion of the marketplace.

What was the status of net neutrality before Trump? What did net neutrality look like under Obama?

The last FCC chairman under Obama was Tom Wheeler. At the end of Chairman Wheeler’s term, the FCC made a very clear decision to uphold net neutrality. This was the Open Internet Order of 2015, and it reclassified broadband services as telecommunications services that were subject to “common carrier” regulation under the Communications Act of 1934.

This laid out a very clear nondiscrimination standard that governed how ISPs were supposed to treat data. By law, they couldn’t prefer certain bits over other bits. And the DC Circuit Court validated the FCC’s rules in 2016. The court said they were perfectly lawful.

Once that happened, the legal obligations of the ISPs were very clear. They had to maintain a neutral network. So that’s where we left off, until the new Administration came in. Now the next chapter is being written.

Tell us about that next chapter. So far, what has the Trump Administration signaled that it’s going to do—or what has it already done—in regards to net neutrality?

We don’t really know where the President stands on these issues. We do know where his FCC chairman, Ajit Pai, does. Pai voted against a preliminary version of the Open Internet Order, the underlying legal rules put forward by the FCC to establish a neutral network.

However, his hands are a little bit tied. If Chairman Pai really wanted to undo net neutrality, he would have to take the FCC out of the equation as a consumer protection agency. He would have to make the argument that the FCC no longer has the legal authority to regulate the cable and telephone companies. That somehow the law—which as recently as 2016 has been interpreted by the courts to say that the FCC has clear consumer protection authority over cable and telephone companies—isn’t true anymore. And he would need the judiciary to agree.

That’s what he needs to do to inflict direct damage. But he can also inflict indirect damage, simply by sitting on his hands as the enforcer. He can watch the cable and telephone industry violate net neutrality, and violate the law, and do nothing.

The other side is what Congress does. But the road there is a lot harder for the anti-net neutrality crowd. The Democrats are almost universally in favor of net neutrality. Even as the minority party, you would need a handful of them to produce any sort of major legal change on the issue. And that seems very unlikely at this point.

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