JAVIER ROLDAN CORA—Donald J. Trump officially took office on January 20, and the new executive has already been hard at work taking steps to fulfill the many promises made during his campaign. Seven days into his presidency, Mr. Trump had already signed more than a dozen executive orders. From “minimizing the burden” of the Affordable Care Act, instituting a Federal Government hiring freeze, and ordering the construction of the border wall, to banning “the citizens of seven countries—Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen—from entering the U.S. on any visa category,” the new administration’s policies have been garnering plenty of attention, both locally as well as globally. Flying under the cover of these big, headline-making policy moves, the current administration may also be putting “net neutrality,” or the amount of information we can freely access through the internet, in its crosshairs.
Net neutrality, or open internet, is the principle that all legal content should be accessible by consumers, and internet service providers (ISP’s) should treat all online content equally, regardless of its source. Essentially, it stands for the idea that the companies that connect you to the internet, e.g. Comcast, AT&T, and Time Warner Cable, should not be allowed to control the flow of content to consumers. Because of the proliferation of internet access, and the ease of accessibility of information, most consumers take for granted the idea that content flow in the internet is treated equally. This, however, was a mere presumption in the early twenty-first century, not codified into actual positive law until recently when the Federal Communications Commission (FCC) stepped in.
This principle may not seem controversial to the average consumer, but it has faced opposition for years. Some broadband companies, such as Comcast, argue that the FCC regulations limit the free market and “are too heavy-handed and could stifle investment and innovation.” Verizon successfully sued the FCC, to overturn net neutrality rules, after the agency’s 2010 order “to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression” was implemented. After its loss in court, and the overturning of its 2010 order, the FCC once again set out to establish regulations for the free flow of content in 2015. These regulations were again challenged in court, this time by AT&T, but this time, the regulations were upheld in full.
Without net neutrality rules, ISP’s can block access to certain websites, provide slower speeds for certain contents and services, a practice known as throttling, and even redirect traffic from competitor’s websites to another. As they currently stand, the 2015 FCC regulations prevent ISP’s from these practices. Specifically, the regulations prevent blocking lawful content, applications, and services, throttling “based on who sends it, where it’s going, what the content happens to be or whether that content competes with the provider’s business,” and accepting fees from content providers for “fast[er] lanes.”
Despite the FCC’s recent legal victory, net neutrality regulations are facing a new challenge—an administration that is sympathetic to the idea of striking them down. Mr. Trump has previously called the regulations a “power grab” by the previous administration, and Republicans in Congress have long opposed open internet regulations. And, after the appointment of Ajit Pai, the FCC’s senior Republican member and longtime opponent of the regulations, as head of the FCC, net neutrality’s days may indeed be numbered.
The administration’s stand and appointments indicate that there are likely major changes coming to the FCC and its regulations. Be it by a rolling back of the policy, lack of enforcement by the commission, or Congressional action, we may be heading towards a major change in how the internet works in the United States. For the legal community, proposed limitations on content and throttling practices can affect what information is available for research and which sources you may get it from, and it is a battle that will continue to be played out in the courts, as opponents of either side continue to advocate their positions.