Wednesday, July 12, 2017

A Reminder: "Net Neutrality" is Also an Internet Censorship Enabling Act

Today is the day when Big Content pretends to be "defending the free and open Internet" by protesting the possible repeal of the Federal Communications Commission's "Net Neutrality" rule.

The main -- and quite sound -- argument against Net Neutrality is that it is a subsidy to Big Content at the expense of ISP customers.

That is, Netflix and Amazon and Google don't want to pay the costs of building and maintaining fatter pipes to carry their high-bandwidth content (e.g. streaming high-definition video).

Rather than be the ones hiking subscription fees or advertising rates for their customers, they prefer to let the ISPs be the bad guys who have to put bandwidth limits on customers to reduce net congestion, and jack up the monthly ISP bill for the little old lady who checks her email twice a day and looks at some pictures of cats to cover the costs of building and maintaining the pipes for the binge-streamers.

But there's another big problem with the "Net Neutrality" rule. From Section 15 of the final rule:

Consumers who subscribe to a retail broadband Internet access service must get what they have paid for -- access to all (lawful) destinations on the Internet. ... A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.

And from Section 113:

the no-blocking rule adopted today again applies to transmissions of lawful content and does not prevent or restrict a broadband provider from refusing to transmit unlawful material, such as child pornography or copyright-infringing materials. (Similar to the 2010 no-blocking rule, this obligation does not impose any independent legal obligation on broadband providers to be the arbiter of what is lawful.)

(Italics in the above quotes are the FCC's; emphasis by bolding is mine)

So, guess who's going to decide what content is "lawful" and what content is "unlawful?"

In the absence of specific legislation, as well as in accordance with specific legislation, the FCC will be deciding that as a matter of "administrative law." And having arrogated themselves this power over broadband Internet under a ... creative ... interpretation of Title II, they will not just tell the ISPs that they have to transmit "lawful" content neutrally, they will also tell the ISPs that they cannot transmit "unlawful content" at all.

How long before the Recording Industry Association of America and the Motion Picture Association of America come to the FCC to get an EU-style "upload filtering" rule implemented, requiring ISPs and web sites (probably with exemptions for the Big Content platforms) to actively monitor for, and block, allegedly copyright-infringing material?

Or for that matter to just deem, for example, torrent files to be "unlawful content" ("there's no need for that format, it's used almost entirely for bootlegging"). If you don't think that can happen, think of the "drug paraphernalia" laws that are used against people with certain kinds of pipes and spoons whether that stuff is actually being used to consume unapproved drugs or not.

If the war on strong crypto comes back (and the politicians keep flirting with that), perhaps the FCC will require email servers to watch for and block messages with the string "-----BEGIN PGP MESSAGE-----" in them.

Maybe the FCC will decide (at the behest of the US Treasury Department or Congress) to crack down on unapproved financial transactions by requiring the ISPs to watch for and block data bearing the "fingerprints" of cryptocurrency transactions.

"Free and open" my ass. The "Net Neutrality" rule is an Internet censorship rule merely awaiting implementation.

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