By: April Garbuz
Arguably the most significant invention of our time, the internet is the only network that easily connects the entire world, allowing billions of people to communicate. Net neutrality is the principle that all internet traffic should be treated fairly. Consumers and tech companies alike have pushed for stricter regulations that prohibit the prioritization of internet traffic. This push resulted in net neutrality rules put in place by the Obama-era Federal Communications Commission (FCC). The Trump-era FCC, however, maintained that these regulations were onerous and hurt capital investment. As a result, the FCC eliminated national protections for net neutrality, prompting California to adopt its own state law on the matter.
The California legislation bars internet service providers from slowing down website speeds, blocking access to certain websites, throttling traffic, or offering paid fast lanes. In 2018, the U.S. Justice Department (DOJ) argued that federal law preempted the California statute and filed suit under former U.S. Attorney General Jeff Sessions. The DOJ stated that the legislation placed an unlawful burden on the U.S. government to deregulate the internet.
On February 8th, 2021, the DOJ formally withdrew its Trump-era legal challenge to California’s state net neutrality law. Even though the Biden DOJ has dropped the lawsuit, legal challenges from lobbying groups representing almost every broadband and wireless provider in the US still remain. Lobbyist groups for the wireless industry, telecommunications industry, cable industry, and the American Cable Association are also suing California in federal court over the law. They assert that California’s net neutrality protections are illegal because they are preempted by the FCC.
The California law applies net neutrality rules to interconnection deals between network operators. Network operators are providers of communications services that control the infrastructure necessary to sell and deliver internet services. Interconnection happens when two network operators hand-off traffic to each other. For example, when you pick out a movie or television show on Netflix, Netflix delivers the video streaming directly to the broadband provider, who controls the internet connection in your home. Companies, such as Verizon and Comcast, negotiate private contracts over those handoffs.
California’s law ensures the rules of no-blocking, no-throttling, and no-paid prioritization also apply when traffic is being handed off, so network providers are barred from using interconnection deals to implement paid fast-lanes. Other states are also attempting to prohibit the intentional slowing or speeding of an internet service by internet service providers. Washington has already enacted sweeping net neutrality regulations for all internet service providers operating in the state, and other states are considering enacting their own rules governing an open internet. While states are taking matters into their own hands, the return of national rules for net neutrality are likely necessary to adequately protect the free internet.
Most people get their high-speed internet access from a few telecommunications giants, namely AT&T, Comcast, Cox, CenturyLink, Charter, and Verizon. As consumers, it is crucial that the companies we rely on transfer the information we send and receive according to our expectations – quickly and without interference. New technologies now allow telecommunications companies to scrutinize every piece of data we share via websites, email, videos, internet calls, games, or social networks. Without net neutrality regulations, these companies can interfere with the data flow of broadband internet by slowing down or blocking traffic as they choose and speeding up traffic for sites that pay extra for the privilege.
Network neutrality is a consumer issue, but it is also a leading free speech issue. Today it is virtually impossible to get through life without using the internet. If corporations control the internet, then, by definition, they control the most important communication and organizing tool of our time and could use this power to censor political speech. For this reason, net neutrality is also a racial justice issue. It is crucial for communities of color to have access to the open internet to use it as a platform to tell their own stories and organize for social justice movements. When activists are able to turn out thousands of people in the streets, it is because internet service providers were unable to block their messages or websites.
Without net neutrality, internet service providers could block speech and prevent dissident voices from speaking freely online. Even though there is Democratic support for reinstating federal net neutrality protections, it is unclear when the FCC will reinstate these rules, as it is currently evenly divided. Nevertheless, action is necessary to maintain a competitive marketplace and a fair democracy.
Student Bio: April Garbuz is a second-year law student at Suffolk University Law School pursuing a concentration in Intellectual Property. She is also a Staff Member of the Journal of High Technology Law and holds a B.S. in Physiology and Neurobiology from the University of Connecticut.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
