The Federal Communications Commission (FCC) has released draft rules to reinstate net neutrality, with a vote on adopting the rules to come on the 25th of April. The FCC needs to close some loopholes in the draft rules before then.

Proposed Rules on Throttling and Prioritization Allow for the Circumvention of Net Neutrality

Net neutrality is the principle that all ISPs should treat all traffic coming over their networks without discrimination. The effect of this principle is that customers decide for themselves how they’d like to experience the internet. Violations of this principle include, but are not limited to, attempts to block, speed up, or slow down certain content as means of controlling traffic.

Net neutrality is critical to ensuring that the internet remains a vibrant place to learn, organize, speak, and innovate, and the FCC recognizes this. The draft mostly reinstates the bright-line rules of the landmark 2015 net neutrality protections to ban blocking, throttling, and paid prioritization.

It falls short, though, in a critical way: the FCC seems to think that it’s not okay to favor certain sites or services by slowing down other traffic, but it might be okay to favor them by giving them access to so-called fast lanes such as 5G network slices. First of all, in a world with a certain amount of finite bandwidth, favoring some traffic necessarily impairs other traffic. Secondly, the harms to speech and competition would be the same even if an ISP could conjure more bandwidth from thin air to speed up traffic from its business partners. Whether your access to Spotify is faster than your access to Bandcamp because Spotify is sped up or because Bandcamp is slowed down doesn’t matter because the end result is the same: Spotify is faster than Bandcamp and so you are incentivized to use Spotify over Bandcamp.

The loophole is especially bizarre because the 2015 FCC already got this right, and there has been bipartisan support for net neutrality proposals that explicitly encompass both favoring and disfavoring certain traffic. It’s a distinction that doesn’t make logical sense, doesn’t seem to have partisan significance, and could potentially undermine the rules in the event of a court challenge by drawing a nonsensical distinction between what’s forbidden under the bright-line rules versus what goes through the multi-factor test for other potentially discriminatory conduct by ISPs.

The FCC needs to close this loophole for unpaid prioritization of certain applications or classes of traffic. Customers should be in charge of what they do online, rather than ISPs deciding that, say, it’s more important to consume streaming entertainment products than to participate in video calls or that one political party’s websites should be served faster than another’s.

The FCC Should Clearly Rule Preemption to be a Floor, Not a Ceiling

When the FCC under the previous administration abandoned net neutrality protections in 2017 with the so-called “Restoring Internet Freedom” order, many states—chief among them California—stepped in to pass state net neutrality laws. Laws more protective than federal net neutrality protections—like California's should be explicitly protected by the new rule.

The FCC currently finds that California’s law “generally tracks [with] the federal rules[being] restored. (269)” It goes on to find that state laws are fine so long as they do not “interfere with or frustrate…federal rules,” are not “inconsistent,” or are not “incompatible.” It then reserves the right to revisit any state law if evidence arises that a state policy is found to “interfere or [be] incompatible.”

States should be able to build on federal laws to be more protective of rights, not run into limits to available protections. California’s net neutrality is in some places stronger than the draft rules. Where the FCC means to evaluate zero-rating, the practice of exempting certain data from a user’s data cap, on a case-by-case basis, California outright bans the practice of zero rating select apps.

There is no guarantee that a Commission which finds California to “generally track” today will do the same in two years time. The language as written unnecessarily sets a low bar for a future Commission to find California’s, and other states’, net neutrality laws to be preempted. It also leaves open unnecessary room for the large internet service providers (ISPs) to challenge California’s law once again. After all, when California’s law was first passed, it was immediately taken to court by these same ISPs and only after years of litigation did the courts reject the industry’s arguments and allow enforcement of this gold standard law to begin.

We urge the Commission to clearly state that, not only is California consistent with the FCC’s rules, but that on the issue of preemption the FCC considers its rules to be  the floor to build on, and that further state protections are not inconsistent simply because they may go further than the FCC chooses to.

Overall, the order is a great step for net neutrality. Its rules go a distance in protecting internet users. But we need clear rules recognizing that the creation of fast lanes via positive discrimination and unpaid prioritization are violations of net neutrality just the same, and assurance that states will continue to be free to protect their residents even when the FCC won’t.

Tell the FCC to Fix the Net Neutrality Rules:

1. Go to this link
2. For "Proceeding" put 23-320
3. Fill out the form
4. In "brief comments" register your thoughts on net neutrality. We recommend this, which you can copy and paste or edit for yourself:

Net neutrality is the principle that all internet service providers treat all traffic coming through their networks without discrimination. The effect of this principle is that customers decide for themselves how they’d like to experience the internet. The Commission’s rules as currently written leave open the door for positive discrimination of content, that is, the supposed creation of fast lanes where some content is sped up relative to others. This isn’t how the internet works, but in any case, whether an ISP is speeding up or slowing down content, the end result is the same: the ISP picks the winners and losers on the internet. As such the Commission must create bright line rules against all forms of discrimination, speeding up or slowing down, against apps or classes of apps on general traffic in the internet.

Further, while the Commission currently finds state net neutrality rules, like California’s, to not be preempted because they “generally track” its own rules, it makes it easy to rule otherwise at a future date. But just as we received net neutrality in 2015 only to have it taken away in 2017, there is no guarantee that the Commission will continue to find state net neutrality laws passed post-2017 to be consistent with the rules. To safeguard net neutrality, the Commission must find that California’s law is wholly consistent with their rules and that preemption is taken as a floor, not a ceiling, so that states can go above and beyond the federal standard without it being considered inconsistent with the federal rule.

Take Action

Tell the FCC to Fix the Net Neutrality Rules

Decentralized web technologies have the potential to make the internet more robust and efficient, supporting a new wave of innovation. However, the fundamental technologies and services that make it work are already being hit with overreaching legal threats.

Exhibit A: the Interplanetary File System (IPFS). IPFS operates via a “distributed hash table,” essentially a way to look up the number (or “hash”) corresponding to a given file and see which network locations have chosen to offer the file. Using the hash, a machine then learns where to request the file from, and then retrieves it in pieces from those locations. IPFS gateways in particular perform these functions on behalf of a user who tells it what hash to retrieve the file for. It’s a conduit, like a traditional proxy server, virtual private network, or ISP.

Our client, computer scientist Mike Damm, offers a free IPFS gateway. He doesn’t control how people user it or what files they access. But a company called Jetbrains insists that that Mr. Damm could be liable under Section 1201 of the Digital Millennium Copyright Act because JetBrains’ lawyers are allegedly able to use his gateway to request and retrieve software keys for Jetbrains software from the IPFS network.

We were glad to have the opportunity to set them straight.

Section 1201 is a terrible law, but it doesn’t impose liability on a general-purpose conduit for information. First, a conduit does not fall into any of the three categories of trafficking under Section 1201: its primary purpose is not circumvention, it has extensive other uses, and it is not marketed for circumvention. Second, Congress has expressly recognized the need to protect conduits from legal risk given their crucial role in supporting the basic functioning of the internet. In Section 512(a) of the DMCA, Congress singled out conduits to receive the highest level of safe harbor protection, recognizing that the ability to dispose of copyright claims at an early stage of litigation was crucial to the operation of these services. It would be absurd to suggest that Congress granted conduits special immunity for copyright claims based on third party activity but then, in the same statute, made them liable for pseudo-copyright Section 1201 claims.

The DMCA has serious flaws, but one thing Congress got right was protecting basic infrastructure providers from being liable for the way that third parties choose to use them. This is in line with longstanding legal principles whereby courts require plaintiffs to target their complaints towards the individuals choosing to misuse general-purpose services, rather than assigning blame to service providers.

Deviating from this rule could have extinguished the internet in its infancy and threatens to do the same with new information technologies. As always, EFF stands ready to defend the open web.