Net Neutrality: New Rules Do Not Fix The Original Problem

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Once one wades through the legal and technical jargon as the tech blogs and e-magazines dissect and otherwise do a post mortem on the new Net Neutrality rules now that they are passed and the techies are allowed to see them, Tech Raptor published a piece containing these paragraphs:

Of particular concern are the passages regarding ‘reasonable network management’ as it pertains to ‘copyright protection.’ These passages allow ISPs to act as the internet police, blocking and throttling customers they deem to be engaged in illegal activity. This is somewhat ironic because it was Comcast’s throttling of BitTorrent users that brought Net Neutrality to a head in the first place. Also ironic is that when the FCC discovered that Comcast was clandestinely throttling their BitTorrent users, they ordered them to stop. Comcast agreed to move away from this behavior and stated that they would find another way to manage their internet traffic.

After all that, one might imagine that the FCC would attempt to protect internet users from these types of actions with their shiny new regulations. Unfortunately, the FCC seems to have forgotten about this, and has left a huge loophole in their new document. A loophole which ISPs may be able to abuse.

More or less, the FCC wants to use internet service providers (ISPs) as their eyes and ears within the internet and gives them the power to “throttle” pages and sites that publish material that MAY be subject to copyright infringement.  Sort of a shoot first and investigate later situation without using actual law enforcement.  Whether or not this concept and/or rule violates U.S. Constitutional rights seems to be of lesser concern to the FCC, but is sure to be addressed in lawsuits expected by everyone in the tech segment of the internet community.  They, at least, see the pitfalls.

The main target for copyright infringement penalties, according to the tech blogs, seems to be piracy sites per Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) who lobbied heavily with demands regarding stopping the illegal dissemination of their products.  Which, if one believes in intellectual property, is all well and good, but the FCC did not define or even give guidelines as to the determination of what is illegal.  Without that, there is nothing to stop the Comcasts of the internet from “throttling” their competition based on a hunch that they MIGHT be acting illegally.

This is what the tech industry as a whole was hoping would be managed with net neutrality and it is one of the problematic issues that remains from prior to the new rules.  The main goal was Title II reclassification, which makes the internet a public utility – and a lot more expensive.  But copyright determination, and the unlimited ability of ISPs to determine what it and is not legal, was something that the techies knew was a big problem AND NOTHING HAS CHANGED.

…this issue has been pretty much absent from the discussion in recent months. This is curious as many activist groups, including the Electronic Frontier Foundation (EFF), protested heavily against the copyright loophole in the past, issuing warnings over massive collateral damage.

“Carving a copyright loophole in net neutrality would leave your lawful activities at the mercy of overbroad copyright filtering schemes, and we already have plenty of experience with copyright enforcers targeting legitimate users by mistake, carelessness, or design,” the EFF wrote at the time.

So why was there little outrage about the copyright loophole this time around? TF contacted EFF staff attorney Kit Walsh who admits that the issue didn’t get much attention, but that it’s certainly problematic….

“It’s one thing to say that ISPs can block subject to a valid court order, quite another to let ISPs make decisions about the lawfulness of content for themselves,” he adds.

According to Walsh the issue is particularly concerning because many ISPs also have their own media properties. This means that their incentive to block copyright infringement may be greater than the incentive to protect fair use material.

And that was the original problem that did not get fixed with “Net Neutrality.”  It was all the things that DIDN’T need fixing that were changed.  And that was a rude awakening to many who once were Net Neutrality advocates.

And then there was the George Soros angle.  

About the Author

Cultural Limits
A resident of Flyover Country, Cultural Limits is a rare creature in American Conservatism - committed to not just small government, Christianity and traditional social roles, but non-profits and high arts and culture. Watching politics, observing human behavior and writing are all long-time interests. In her other life, CL writes romance novels under her nom de plume, Patricia Holden (@PatriciaHoldenAuthor on Facebook), and crochets like a mad woman (designs can be found on Facebook @BohemianFlairCrochet and on Pinterest on the Bohemian Flair Crochet board). In religion, CL is Catholic; in work, the jill of all trades when it comes to fundraising software manipulation and event planning; in play, a classically trained soprano and proud citizen of Cardinal Nation, although, during hockey season, Bleeds Blue. She lives in the Mid-Mississippi River Valley with family and two cute and charming tyrants...make that toy dogs.