What a difference a weekend makes.
Last week, Congress passed a bill retroactively legalizing and expanding the surveillance of the communications of U.S. citizens. This bill may have unintended and negative effects on the campaign to re-instill the principle of network neutrality as a point of law.
Shortly after Congress’ action, two developments took place: both the Electronic Frontier Foundation and American Civil Liberties Union filed lawsuits against the FISA Amendments Act, challenging its constitutionality on a number of levels. Notably, none of the principals of the media-reform movement have signed onto these legal efforts as of yet.
Secondly, Federal Communications Commission Chairman Kevin Martin made noises that his agency was preparing to sanction Comcast, the nation’s second-largest broadband-service provider, for violating its “principles of broadband network management practices” (i.e., engaging in widespread data-discrimination across its network). Many net-neutrality advocates interpreted these words as a “victory” for the principle; I even speculated that Martin’s move was timed in part because Congress’ work on the surveillance issue may have inadvertently undercut the agency’s jurisdiction and authority over the network neutrality issue.
After about a day and a half of happy-buzz, Martin and the FCC clarified their position – Comcast will not be substantially penalized in any meaningful fashion for its data-discrimination practices. There will be no further investigation, no priority inquiry, not even a monetary forfeiture: instead, the FCC will require the company to “disclose” its bandwidth-management practices and “encourage” Comcast to adopt more “protocol-agnostic” methods of shaping the traffic that flows over its pipes. Any “order” that comes out of the FCC’s August 1st meeting will be more of an admonishment than a “precedent-setting win” for the principle of network neutrality.
As a result, I stand behind my original worry about the risk that “network management” becomes synonymous with “national security” as an unintended consequence of expanding an unconstitutional surveillance program, and we must examine and confront the network neutrality dilemma through this new prism.
I also am inclined to believe, as Matthew Lasar commented on last week’s Mediageek radio show, that the FCC may be making a more symbolic move in order to reiterate a claim of administrative jurisdiction over the network neutrality issue. The Federal Trade Commission (FTC) has also made noises about asserting authority over network-management practices, and Martin’s posturing may be a sign of something more akin to the iteration of an agency turf-struggle than substantive movement in the direction of regulation to promote a more democratic online environment.
I’m sure there will be plenty of conjecture and preemptive spin regarding net neutrality before the FCC’s August meeting, but only the Commission knows what it will do – and truth be told, it probably really doesn’t even know at present. Chairman Kevin Martin has a penchant for cutting backroom deals, pulling controversial items off Commission’s agenda at the last minute, and even delaying or canceling meetings when the policy-stars aren’t lining up just his way.
This all could very well end up being much ado about nothing, save for the publicity-mileage the various constituencies who dominate discussion of the issue will get out of it. The most likely remedy for all of this will ultimately be found in Congress or the courts. It was the judiciary (and the FCC) which got us into the net neutrality mess in the first place, and that leaves Congress. Given that the “Internet Freedom Preservation Acts” are stuck in neutral themselves, telecommunications companies and broadband service providers will continue to get away with business as usual. The longer business as usual stays in effect, the harder attaining the goal of making network neutrality a point of law again becomes.