Will we still have a free internet under Donald Trump?

In defence of Net Neutrality

The idea of ‘Net Neutrality’, based upon the end-to-end architecture of the internet, essentially means Internet Service Providers (ISPs) treat all data the same regardless of its destination and its source.

In October 2016, the future of Net Neutrality seemed secure. The FCC (US Communications Regulator) and BEREC (EU Communications Regulator) were harmonised on many issues. The Open Internet Order published in 2015 by the FCC set out clear limitations on issues such as ‘throttling’ (where internet speeds are intentionally slowed down for certain websites), ‘blocking’ (where certain content is ‘blocked’ by an ISP) and ‘paid prioritisation’ (no fast lanes for certain content).

But there are still pressing issues in the Net Neutrality debate, two of which I’ll discuss today. The first is how to reconcile an equal internet with increasing demand for online services and, secondly, how current Net Neutrality guidelines are set to change under the new President.

Before addressing these it is necessary to ask this question: why are we protecting Net Neutrality at all? If ISPs are allowed to charge certain content providers, such as Netflix and Facebook, for dedicated internet speeds they could reinvest in new technologies to lower their prices for consumers. Also, isn’t it fair for Netflix to pay companies like Verizon and BT for taking up such a large proportion of their bandwidth at peak times (37% of all traffic in 2015 for North America)?

There is a danger in opening the market up this way as Content Application Providers (CAPs) such as WhatsApp already control large proportions of the instant messaging market. If they were able to pay for faster internet speeds, new entrants to the market like Slack would struggle to compete because video-calling on WhatsApp would be far more reliable than any other competitor. Many users of other platforms may switch to WhatsApp and this would saturate the market for internet services even further.

It is crucial to allow new companies to have the ability to innovate and challenge the market leaders to give people choice on the internet and to incentivise current market leaders like Facebook to continue to innovate. This is not a perfect solution as companies can use substantial amounts of the world’s bandwidth without paying for the investment that ISPs need to sustain such usage, but it is the only one that preserves the internet as it is today and maintains the end-to-end architecture that it was founded upon.

With advances in Artificial Intelligence (AI), the Internet of Things and applications for the internet in healthcare, some services will need dedicated internet speeds. It would be unfair for ISPs to have to pay for the investment in architecture needed to service these applications, as this cost would likely be passed on to consumers who may not necessarily directly benefit from these specialised services. The EU Directive 2015/2120 and the subsequent BEREC guidelines on Net Neutrality already allow for differentiated internet traffic for specialised services in article 3(5) of the Directive, and it is recommended that the FCC follow BEREC’s lead on this issue.

So where do we draw the balance?

It is recommended that paid traffic management should be allowed for specialised services, with strong oversight by communications regulators such as the FCC, BEREC and Ofcom. This would mean that providers of these specialised services pay ISPs for access to guaranteed speeds as long as they can prove to regulators that the service they provide is specialised under the article 3(5) criteria. This would produce the flexibility needed to accommodate our growing uses for the internet.

Moving on to issue two, WIRED recently said “Trump is set to kill Net Neutrality“.

In 2014 Donald Trump tweeted that “Obama’s attack on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target conservative media.” Things may not be as drastic as these headlines seem to suggest with companies like Comcast contractually obligated to maintain Network Neutrality until 2018. But the policy of zero-rating, currently allowed in some circumstances under BEREC regulations, is likely to increase in the USA.

This is where a telecoms provider or an ISP offers preferential ‘free’ access to certain types of content to its customers. An example of this is T-Mobile offering zero-rating access to a music streaming service like Spotify to its mobile internet customers, essentially allowing unlimited data access for that certain application.

The ramifications of this should not be overstated. If zero-rating services expand the growing market for all the services that we use the internet will be monopolised further. In order to encourage innovation and to lower barriers to entry zero-rating, services should be prevented as they discourage competition and unlike allowing paid prioritisation for specialised services, they do not incentivise investment and innovation.

Looking ahead, the FCC’s 2015 Open Internet Order will be very different than what it was under Obama’s administration. There is a danger that while Net Neutrality may remain on the statute books, the rules may not be enforced effectively. Professor Chris Marsden of the University of Sussex predicts a “return to US exceptionalism” and an end to the “open internet after a 25-year regulated commercial experiment”.

In my view a fair, open and competitive internet will only become more important as our dependence on the internet grows and as such we should strive to maintain an open internet as much as possible, while granting ISPs the flexibility and the capital to reinvest in technology that will allow for specialised services like self-driving cars to have reliable and fast internet connections.

This solution is by no means a comprehensive one to the Net Neutrality problem. Many questions still need to be answered: should consumers should have a right to a guaranteed speed of internet? How should we classify ‘specialised services’?

We still do not know what changes the FCC will make in the next four years. But as the internet continues to shape our lives Net Neutrality will become ever more important and, as such, all efforts should be made to lobby the ‘new’ FCC to continue their policies under the Obama administration, even if such efforts may be futile.

Danial Alam is a second year law student at the London School of Economics.