Internet giants Google, Amazon, and
Facebook, among others, announced, through their trade association, the
Internet Association, that they plan to join legal challenges to the FCC’s recent Restoring
Internet Freedom Order (RIF Order). Internet
Association President & CEO Michael Beckerman issued the following
statement in conjunction with the announcement:
The final version of Chairman Pai’s rule, as expected,
dismantles popular net neutrality protections for consumers. This rule defies
the will of a bipartisan majority of Americans and fails to preserve a free and
open internet. IA intends to act as an intervenor in judicial action against
this order and, along with our member companies, will continue our push to
restore strong, enforceable net neutrality protections through a legislative
solution.
The
recently-repealed 2015 Open Internet
Order approach is not so neutral at all, however, in
its practical effect. The Order had
the effect of supporting the imposition of stringent privacy restrictions on
Internet service providers (ISPs), like Comcast and Verizon Wireless, which did
not apply to Google, Amazon, and other major Internet companies that are among the
largest collectors of personal consumer data. This approach, under which the
largest Internet giants are subject to less stringent privacy regulation,
attracted strong bipartisan criticism, as former Federal Trade Commission
Chairman Jon Leibowitz, a Democrat appointee, explained
in April 2017:
By
creating a separate set of regulations that bind only internet service
providers — but not other companies that collect as much or more consumer data
— with heightened restrictions on the use and sharing of data that are out of
sync with consumer expectations, the FCC rejected the bedrock principle of
technology-neutral privacy rules recognized by the FTC, the Obama
administration, and consumer advocates alike. Protecting privacy is about
putting limits on what data is collected and how it is being used, not who is doing the collecting, and for
that reason, a unanimous FTC — that is, both Democratic and Republican
commissioners — actually criticized the FCC’s proposed rule in a bipartisan and
unanimous comment letter as “not optimal,” among 27 other specific criticisms
of the rule (emphasis added).
The 2015 Order also
imposed several strict conduct regulations on ISPs like Comcast and Verizon
Wireless. These public utility-like neutrality limitations were not applied to system
administrators for business networks, to cloud backup services during uploads
of data from customers, or to online gaming services
that may throttle bandwidth at certain times to prevent their services from
overloading and crashing. It also does
not apply to traffic on private networks operated by “edge providers”
like Google and Amazon.
And we’ve now learned
that it did not apply to Apple’s sub rosa
throttling of iPhones in what Apple now claims – when the throttling was
discovered – was an attempt to preserve the battery life of phones. While Apple
argues that this undisclosed throttling was needed as a measure to protect
iPhone owners, it could
also have the effect of encouraging more iPhone owners to pay to upgrade from their
older devices instead of replacing their batteries. In any event, Apple did not
disclose the practice to its consumers.
Tom
Evslin, former chief technology officer for the state of Vermont and former chief
executive of VoIP provider ITXC Corp, described
in August 2017 how Google and Amazon engage in the same throttling and
prioritization behavior that they seek to prohibit ISPs from doing:
In fact, however,
web giants like Google and Amazon have private networks that connect to the
internet in many locations. They have data caches (think of them as content
warehouses) around the world. Their websites do pop up faster than yours
because their bits travel mostly on their private networks and avoid internet
backbone and interchange congestion. In other words, they have their own
private fast lanes. You can’t achieve this speed for your website unless you
build a private network of your own (unlikely) or host your website on Amazon
or Google, in which case they may share some of their private access network. I
have hosted services on Amazon, and they charge me more depending on how many
locations from which I want my data served. In other words, faster is more
expensive on their network.
Conveniently these
private fast lanes are specifically exempt from the 2015 Federal Communications
Commission’s Open Internet (aka “net neutrality”) regulations, which
reclassified basic internet access service in a way that lets the FCC
micromanage it and prohibit public “fast lanes.” The members of the Internet
Association are “edge services,” so they are unregulated by this rule.
Regardless
of how much Internet Association members like Google and Amazon may claim they want
to bring back “net neutrality” to protect consumers, a significant impact of
their actions is to try to re-impose regulation
to protect themselves from ISP competition. If they succeed, the result will be
to keep more stringent regulations on their ISP competitors. To the
extent that regulation of providers of services in the Internet ecosystem is
needed, it at least should be a somewhat uniform enforcement regime, not one so
disparate that ISPs are regulated in a much more heavy-handed manner than Internet
web giants like Google and Amazon.
Posts
