When Donald Trump was inaugurated as 45th President of the United States of America on 20th January, he had one easy policy to implement and one person to pick as his Internet policy chief. Where Obama was the Google and Facebook President, Trump is the alt-right alternative-news Twitter President. He wants to build a paywall for his friends and supporters’ businesses on the Internet, and you the user may end up paying for it.
His policy – to dismantle President Obama’s main Internet policy of ensuring network (‘net’) neutrality – also known as the ‘Open Internet’ principle. His pick: the most vocal Republican critic of the outgoing administration’s policies. His time scale: THREE days. On 23 January, Ajit Pai was confirmed as Chair of the Federal Communications Commission (FCC), the largest and most powerful Internet regulatory body in the world. On 24 January, he appointed his staff to dismantle the Obama policy. On 31 January, he closed the inquiry that had tried to implement Obama’s policy. He is highly unlikely to agree to another one. Expect loud protests against his new policy inside and outside the first Trump era FCC Open Meeting on 23 February.
Thus begins the ‘Third Age’ of net neutrality regulation. The first was the preparation and policy formation, largely prior to legal enforcement, from 1999 to 2009 (which I documented in the first book on the topic). The second was the growing international consensus on net neutrality in 2009-2016, not just in Obama’s US but also in Europe with laws passed in both 2009 and 2015, in Latin America with new laws in Chile, Brazil, Mexico, Colombia and Costa Rica, and India, which outlawed zero rating in 2016. My new book explains that seven year passage to regulatory implementation. But now we enter the new Trumpian era for net neutrality.
So what is net neutrality, and what is zero rating? Net neutrality is the principle, elaborated by US law professors Mark Lemley, Lawrence Lessig, and then Tim Wu (who coined the term in 2003), that access providers that connect you to the Internet should not block, throttle and otherwise discriminate between content you choose when you use the ‘Net. (There are narrow exceptions for security against viruses, spam, law enforcement and temporary congestion.)
Take an example: your mobile phone company should not degrade your use of WhatsApp, Skype or YouTube evne though they have their services in a bundle they want you to use instead. Remember when phones were mainly used for texting and calling? Mobile operators admitted they tried to stop this happening, degrading independent services Skype and WhatsApp connections in the 2000s, leading in 2011 to the first European net neutrality law when Netherlands consumers – and politicians – were outraged that mobile companies were tracking their phone use and blocking WhatsApp. Mobile operators have now agreed in many countries not to block your connections, and the laws that ensure your freedom to connect are slowly being implemented in detailed regulation.
Zero rating is the alternative to that now-illegal blocking and throttling. Mobile and even fixed line operators want to give you a bundle of ‘preferred’ affiliated content, like bundling basic cable TV services. These “sponsored data” plans allow you to use certain services without dipping into your data allowance, with other companies picking up the bill – you pay indirectly through their ‘sponsorship’. The giant companies like Facebook (which bought WhatsApp in 2014), Microsoft (which bought Skype in 2011), and Google (which bought YouTube in 2006) can afford to negotiate ‘sponsored data’ to zero rate, with the telecoms and mobile companies. A new rival to Facebook, WhatsApp – such as Signal – or YouTube could not. Wikipedia could not, the BBC could not.
Regulating to create an open Internet was still a work in progress in 2016, with opposition from big telecoms and cable corporations in the courts, that meant it took six years of Obama’s Presidency to begin effective implementation. I wrote three years ago in The Conversation that the litigation was wrapping up the policy in knots, but six months ago that litigation failed, vindicating the FCC in part. Only five months ago, the European regulators created their own detailed rules – all seemed settled on both sides of the Atlantic. Hungary, Netherlands, Sweden (and in a perverse manner Slovenia) were all implementing zero rating rules.
As recently as 11 January, Obama’s FCC declared the zero rating plans of the giant telecoms companies Verizon and AT&T to be against the open Internet rules – with bitter opposition from then-Minority Commissioner Pai. It accused AT&T of treating its own DirecTV better than its rival services, making the system uncompetitive be favouring its own subsidiary. Smaller rival T-Mobile’s BingeOn video service, was permitted as it “charges all providers the same zero rate for participating”. FCC had already warned both AT&T and Verizon about its offers in separate letters – but that it is now history. The Wireless Bureau author of that declaration, and Obama’s FCC Chairman, have both ‘moved onto other responsiblities’.
How can you affect open Internet rules? Academics study the law, the policy, the technology, the business economics, the privacy and human rights implications, the civil society protests when net neutrality is infringed, all around the world. Some of us advise governments on the implications of different forms of net neutrality regulation (I have done so for a decade now). Millions have responded to the US and Indian consultations, over half a million to the European guidelines. One professor went further.
Lawrence Lessig, one of the ‘fathers’ of net neutrality regulation, taught at the University of Chicago Law School with Obama – and was so worried about Trump, and billionaires’ corruption of politics, that he ran for President in 2015. Unlike his fellow lawyers Obama and the Clintons, he did not get very far. His open Internet idea was Obama regulatory policy – how long will it be before Ajit Pai and his President Trump consign that freedom to connect to history? If net neutrality fails, expect more sponsored data plans inside the paywall, and more difficulty in accessing higher cost data if you want to leave the ‘bubble’.