Not long ago, net neutrality was a hot topic. Facing imminent rollback, the Obama-era classification of Internet service providers (ISPs) as “common carriers,” which barred them from giving preference to certain kinds of data, was touted as a bulwark against threats to free speech.
From DC wonks to LA celebs and the US Conference of Catholic Bishops, a growing consensus held that the First Amendment was at stake. “We’ve faced a lot of issues threatening our democracy in the last year,” actress Alyssa Milano tweeted last November. “But honestly, the @FCC and @AjitPaiFCC’s dismantling of #NetNeutrality is one of the biggest.”
When Trump took office, federal protections ended in a party-line decision to end the rule, in spite of the support of 83 percent of voters, a national wave of protests, and popular majorities on both sides of the aisle.
This political will was then channeled into regulations at the state and municipal level. In the early months of 2018, a slew of governors signed executive orders defending neutrality principles, and Bill de Blasio led a coalition of mayors pledging to punish providers for selectively blocking, throttling, or zero-rating bandwidth. “The internet must remain free and open to all,” said Andrew Cuomo, vowing to take “all necessary steps to protect #NetNeutrality” in New York.
For a moment, it was plausible that a patchy field of localized protections would guarantee net neutrality in the absence of federal regulation. But almost a year later, it’s difficult to say how much this defensive scramble has accomplished.
A Senate Democrat plan to use the Congressional Review Act to reverse the decision has stalled in the House, with virtually no chance of becoming law. And while legislators have introduced net-neutrality bills in 30 states, the majority of these have failed.
Only California, Oregon, Vermont, and Washington have successfully enacted legislation, and at least two of these have been dragged into well-funded lawsuits from the ISP lobby on the basis of the “inherently interstate nature” of broadband. When Jerry Brown signed California’s bill into law at the end of last month, the Department of Justice sued the state within hours. “We are confident that we will prevail in this case,” said Jeff Sessions, “because the facts are on our side.”
Meanwhile, the #NetNeutrality moment has largely dissipated. Although it remains popular in principle, predictions that it would resurface as a hot midterm topic were wildly inaccurate. A recent Morning Consultant poll found that 59 percent of self-identified Democrats considered support for net neutrality an important factor in deciding whom to vote for, but noted its absence in the vast majority of campaigns. “It’s not something that people bring up in their top list of concerns,” said Democratic strategist Achim Bergmann, “and it’s not something that they’re getting riled up about.” As the regulatory struggle branched into a diffuse web of local initiatives, public outrage fizzled into tempered patience and eventually a quiet resignation.
The movement lost energy because its narrow ambitions were grossly out of sync with the universal language couching popular support. The month of the repeal, Shahid Buttar of the Electronic Frontier Foundation wrote that “freedom of expression online [was] hanging in the balance.” The average voter never cared about Title II of the Communications Act of 1934 or the granular details of bandwidth regulation, and they sure as hell didn’t turn out in the streets over fears that Comcast might discriminate against Hulu network packets. They were driven by the sweeping abstractions made of this specific protection, and rallied behind far bigger ideas.
The problem is that the limp protections on offer, both at the state level and in the original federal protection, don’t get to the heart of the issue: the private capture of crucial social infrastructure, and the monetization of online speech.
You might think the absence of neutrality protections would hurt the companies using the most bandwidth. But neutrality doomsayers warned that, absent formal protections against bandwidth discrimination, ISPs would negotiate sweetheart deals to zero-rate large platforms, throttle competitors, and offer tiered subscription packages—as is done in countries like Portugal—that would privilege certain companies over others.
This is a bad outcome, but physical network providers aren’t the only, or even the primary, information gatekeepers online. Consider the extent to which companies like Facebook, Google, and Twitter already sell our attention to the highest bidder. A net neutrality that doesn’t address the ways in which platforms engage in profit-driven content discrimination can’t credibly pose as a last line defense of free speech. It’s more like a countermeasure against the consolidation of large physical and virtual network structures. It weakens the bargaining power of the former, but does nothing to prevent the latter from engaging in the same antisocial behaviors
Moreover, the Wheeler protections still gave ISPs free rein to discriminate against actual consumers, if not content providers, on the basis of profit. Currently, more than 39 percent of rural Americans lack an option for home broadband access, and low-income neighborhoods typically receive relatively shoddy service—a disparity disproportionately reflected on tribal lands and within communities of color.
Laying cable is a capital-intensive venture, and a Verizon or CenturyLink isn’t going to modernize the infrastructure available to your home unless you’re likely to buy an expensive high-end package or you live in a dense urban area that’s cheap to connect. Net-neutrality safeguards are designed to protect private competition on the Internet, doing nothing to ensure that all consumer connections are treated equally.
These uninspiring limitations prevented net neutrality from persisting as a galvanizing issue, but also couched much of its mainstream visibility. #NetNeutrality got an undeniable bump from Silicon giants like Google and Facebook, who surely would have opposed anything beyond securing private competition on the Internet—which effectively secures the supremacy of platforms over ISPs. “The internet is increasingly where commerce happens,” read a Cyber Monday letter signed by hundreds of tech companies, including Twitter, Airbnb, and Reddit. “Our current net neutrality rules…give all businesses the opportunity to compete equally for consumers.”
A movement with its focus on Internet users as the subjects, rather than the objects, of online freedom would certainly enjoy less astroturf corporate support. At the same time, it might sustain enough public urgency to advance to maturity.
A more radical vision would punch back against regulatory rollback: If we can’t force profit-driven ISPs to ensure open access to an equitable Internet, we should empower public providers aligned with universalist principles. An expansion of federal funding, coupled with localized campaigns for municipal, cooperative, and other community-focused models for broadband distribution wouldn’t just curtail predatory data discrimination—it could ensure universal access to affordable high-speed connections, regardless of geographic or material conditions.
Shifting to a collectivized notion of physical infrastructure could also open doors to creative new ways of approaching communal ownership of data traveling across cables, like platform cooperatives, sovereign data funds, or other models of data populism. This could expand democratic control of the social, archival, and economic platforms that contort modern society in the interests of private accumulation.
Data privatization is bad for everyone. It reimagines our leisure time as productive labor, vulnerable to capture by deeply insidious institutions. It also opens a door to discursive manipulation by anyone from Russian election meddlers to the coal lobby. The #NetNeutrality moment briefly gave language to this ambient malaise, but rather than exploring collectivist alternatives, a legion of toothless centrists tethered our aspirations to a narrowly defined policy fight over bandwidth regulation and shoved it into the special interest moshpits of local governance. Momentum suffocated because of the narrow parameters of debate.
The common conception of net neutrality is no safeguard of “freedom of expression online.” Regulating bandwidth discrimination matters, but let’s recognize it for what it is: a profoundly limited stopgap for a specific problem that runs downstream from the privatization of collective infrastructure.
The left shouldn’t nail itself to a tepid Obama-era reform, but persistent (if dormant) support for net neutrality shows there may be potential to build on collective desires for a truly open and equitable Internet.