Not neutrality

One of the surprises for me in the whole Snowden/surveillance/data security controversy is that, relatively speaking, it hasn’t created more angst on this side of the Atlantic. Perhaps for similar reasons, the net neutrality debate appears not to have engendered the same levels of outrage within the UK’s business and civil liberties camps. For my own part, I’ve resisted commenting over the past year or more because there seemed little new to add, given that the two factions were merely reiterating their already entrenched positions. But there was some real news earlier this month and I couldn’t resist commenting on some of the coverage. 

On 14^th January, a U.S. Court struck down the most recent attempt by the FCC to enforce net neutrality rules – its so-called Open Internet Order. The court found that parts of these regulations violated the Communications Act's clear prohibition on imposing common carriage requirements on networks like the Internet. 

While many would argue that the court ruling actually propels the FCC towards a more sensible regulatory approach, several long-time champions of net neutrality reacted angrily.  For example, Tim Wu, a professor at Columbia Law School, wrote an article for the next day’s edition of The New Yorker entitled ‘Closing Time for the Open Internet’.  He wrote:

“Acting together, the Internet service providers could destroy Netflix by slowing its data to a crawl, making movies impossible to watch”.

The next week, another publication,The Register, reported as follows:

“Netflix – which has roughly 40 million subscribers globally – yesterday warned its investors (and the wider world) that cable companies and other ISPs could arbitrarily strangle access to online video sites or block them entirely unless, say, said websites coughed up some cash. If this were to happen, Netflix vowed it would unleash hell”. 

 So, a justifiable declaration of war by Netflix?  Well, not quite… The Netflix ‘warning to investors’ was contained in that week’s letter to shareholders by senior management.  This goes on to say:

“The most likely case, however, is that ISPs will avoid this consumer-unfriendly path of discrimination… ISPs are generally aware of the broad public support for net neutrality and don’t want to galvanize government action… Moreover, ISPs have very profitable broadband businesses they want to expand. Consumers purchase higher bandwidth packages mostly for one reason: high-quality streaming video”. 

Precisely, and the same point is actually reiterated later in the Tim Wu article:

“These days, Internet firms like Google and Facebook are so powerful that they could decide to turn around and demand that Internet providers pay them for the right to access their sites. This is the norm in cable television.” 

To my mind, the net neutrality debate might finally have become interesting!