The internet is essential for so much in our daily lives: We need it to do our jobs, learn about the world around us, and keep in touch with our loved ones. From supporting the operations of massive IT companies to helping kids get their homework done, many things in our world today are powered in some way by a connection to the internet.
That’s why figuring out how we access the internet, and how it operates, is a high stakes decision. We want to know that our telecommunications infrastructure can afford to stay up and running — but at the same time, we don’t want the business interests of telecom companies to rule how we get online.
What Is Net Neutrality?
It’s a debate that has gone on since the beginning of the internet, but it wasn’t until 2003 that it had a name. “Net neutrality,” a term coined by Columbia law professor and White House staff member Tim Wu, has become standard shorthand for the debate about internet legislation and corporate regulations. Today, it’s a rallying call for activists in favor of a regulated internet, and a pain point for internet service providers.
“At the start, there was bipartisan agreement that the internet should be open, and that everybody can use the internet,” said Steven Augustino, communications regulation attorney at Washington, D.C.-based firm Nelson Mullins. “Where there has been disagreement, it’s been about what level of regulation is necessary to keep the Internet open.”
Though the question of net neutrality may be simple, the answers are complicated. Below, experts in the internet policy and activism space get into the weeds of the net neutrality conversation, and offer their predictions for what’s next.
What Is Net Neutrality?
In layman’s terms, net neutrality is a system for ensuring fair and equal internet access, said Ernesto Falcon, senior legislative counsel at the San Francisco-based non-profit the Electronic Frontier Foundation (EFF).
“Net neutrality prevents internet gatekeeping.”
Falcon has worked primarily in the non-profit sector since 2005, and held a legislative staff position in Congress until 2010. As vice president of government affairs at Washington, D.C.-based public interest firm Public Knowledge, he took part in halting AT&T’s 2014 merger with T-Mobile. He said his primary goal, and that of the EFF, is to stop large telecommunications providers from building monopolies.
“Net neutrality prevents internet gatekeeping,” Falcon said. “Twenty-plus years ago, there were thousands of options for high-speed internet access. But now, with so much monopolization, you have to have rules to prevent abuse.”
Without net neutrality, large internet providers are able to favor certain traffic sources, and block their customers from accessing certain sites that don’t align with their business interests. For instance, without net neutrality standards, an internet provider could slow down loading time for sites affiliated with its competitors. With net neutrality regulations, internet service providers have to display all content equally, without discrimination.
Telecom providers tend to oppose net neutrality because it doesn’t support their business and infrastructure goals, said Aaron Nielson, professor at BYU Law.
“If providers can’t favor certain types of content, it’s harder for them to secure revenue and ensure they’re going to be paid for building internet infrastructure,” he said. “The problem from the other side, though, is that that makes it really hard for new content creators, because the bigger players will just push them aside.”
Additionally, dissenters argue that net neutrality makes it impossible for providers to prioritize important internet communication, like Wi-Fi-powered medical devices, over less pressing internet services. But supporters and activists say that net neutrality standards are crucial to not only level the economic playing field, but to ensure internet access is a guaranteed right for all.
“As a country, we don’t treat Internet access as an essential service akin to water or electricity, even though most people see it as such,” Falcon said. “I think that’s where the fight goes next, particularly in regard to low income taxes and issues of digital redlining.”
Why Net Neutrality Laws Keep Changing
When it comes to net neutrality, the government approach has been less of a bipartisan project and more of a tug of war, Nielson said. Just as soon as regulatory decisions are made about net neutrality, those same decisions are overturned or rendered obsolete by follow-up legislation.
“When a new administration comes into town, they have their own priorities.”
“When a new administration comes into town, they have their own priorities,” he said. “When the Republicans control the White House and the [Federal Communications Commission], the agency takes a light touch to internet regulation. Then, when the Democrats control the White House and the FCC, they take a heavier approach. The reason it’s hard to regulate is because of this flip-flopping.”
To illustrate: In 2010, the FCC imposed more structured rules on internet service providers (ISPs), but those rules were challenged by Verizon and were rescinded in 2014. In 2017, the Trump administration repealed privacy regulations set by the FCC in 2015; but now, the Biden administration is poised to change things again with nominations for two vacant seats in the FCC. In an article for Bloomberg Law, Nielson explained that both ISPs and average internet users are hurt by this back-and-forth, and that they struggle to keep pace with changing regulations. He argued that, in order for legislation to stick, Congress will need to make the final call.
“There’s a way a Congress can enact legislation and clearly strike a compromise,” he said. “If Congress speaks clearly, then that’s going to be the end of the matter. [Technically] Congress can also change laws later, but, as we’ve seen, Congress doesn’t change the law all that often.”
Right now, each state has different regulations regarding internet neutrality, with some taking a more hardline stance than others. In 2018, California passed S.B. 822, an EFF-backed law that prohibited internet providers from blocking or slowing essential internet services or applications. Since then, the law has stood up to challenges from telecommunications and internet service providers. But while California’s laws around net neutrality have been settled, that isn’t the case at a federal level, Falcon said.
“When it came to protections for internet access, California was the most aggressive of the states,” he said. “But ensuring equitable distribution of the infrastructure, and that no one gets second-class versus first-class access to the infrastructure — these are things that require rules that don’t exist federally.”
How Big Tech Is Getting Involved
At first glance, it may seem like net neutrality is primarily a fight between telecom providers and small content creators. But they aren’t the only ones with a stake in the game. Big tech names like Twitter, Meta and Google have all thrown their hats into the ring — though their positions on the matter have been anything but static.
“In the beginning, many were avid supporters of net neutrality, simply because their entire business model was capable of being squashed by an ISP,” Falcon said. “But now they’re at a size and level of dominance where, if they wanted to, they could simply strike certain exclusive ISPs and prevent other companies from getting equal footing in the market. Now, when these fights break out in legislatures, they don’t bring in their lobby representation.”
As they’ve grown in size and market power, many big tech companies are less likely to support net neutrality, Falcon said. But that doesn’t mean all large tech companies oppose net neutrality. Many household tech names push for net neutrality, especially those who rely on contributions from users and content creators to run their business, Falcon said.
“The real activists on the tech side are [companies like] Reddit, eBay, and even Wikipedia,” he said. “Other companies that come into the fold are ones that sell products that are dependent on internet access, like home alarm system companies — because no one would want to buy an alarm system that doesn’t work 100 percent of the time.”
Wi-Fi-enabled alarm producers are only one kind of tech company whose viability is contingent on net neutrality standards. Gaming companies and certain streaming services, which require low latency and fast internet connection, are also greatly affected by the climate of net neutrality, Augustino said.
“If you’re all playing Fortnight or Halo with friends, you have to all be seeing the same thing, which means that your communications with the server have to be essentially instantaneous,” he said. “It’s the high data, low latency cases that are potentially impacted by this regulation.”
Where Net Neutrality Goes From Here
The net neutrality issue is not one that will be solved overnight. When it comes to next steps, predicting the future is an exercise in futility, Nielson said.
“The next stage of internet access policy is figuring out free, high quality internet connection for low income people through subsidies. That’s how you make the dream of free internet access a reality.”
“We’ve had the FCC nominees pending for a very long time, and the Senate works in mysterious ways,” he said. “Sometimes things just happen. It’s just crystal ball gazing, and there’s uncertainty everywhere.”
Falcon said one thing is certain: The public demand for net neutrality won’t be going away anytime soon.
“The pandemic showed that, when schools closed and people had to work remotely, lots of people on the bottom half of the income scale didn’t have good internet connection,” he said. “The next stage of internet access policy is figuring out free, high-quality internet connection for low-income people through subsidies. That’s how you make the dream of free internet access a reality.”