The unknown factor that keeps advocates of network neutrality up at night is whether our political leaders will have the spine to resist the principle's enemies -- the Comcasts and Verizons of the world, who wish to profiteer from charging website providers extra for preferential access to your home and business.
A few glimmers of hope have emerged in recent days. Combined with an analysis showing that the overwhelming majority of comments flowing in to the Federal Communications Commission favor an "open Internet" -- that is, net neutrality -- statements by President Obama and possible presidential candidate Hillary Clinton suggested that the principle is gathering political weight.
But advocates shouldn't declare victory yet. This is Washington, after all, where money talks. And the would-be tollkeepers on the information superhighway already are very, very rich.
Network neutrality means that Internet service providers can't discriminate among content providers trying to reach you online -- they can't block websites or services, degrade their signal, slow their traffic or, conversely, provide a better traffic lane for some rather than others.
At a Silicon Valley event on Oct. 9, President Obama said he is "unequivocally committed to net neutrality." He showed he understood what that meant too: "I know one of the things that people are most concerned about is paid prioritization, the notion that somehow some folks can pay a little more money and get better service, more exclusive access to customers through the Internet. That’s something I’ve opposed. I was opposed to it when I ran. I continue to be opposed to it now."
That's been taken as a warning to FCC Chairman Tom Wheeler, an Obama appointee whose proposal for network rules would materially weaken net neutrality. But Obama also cautioned his audience that, now that he's placed Wheeler at the head of an independent agency, "I can’t just call him up and tell him exactly what to do." He said merely that Wheeler "knows my position."
A few days later, Clinton took to the lectern at a San Francisco conference to declare that "with all the issues around the Internet, and there are many, about access, affordability, the big digital gap that exists, particularly between women and men, in developing and developed countries, it is absolutely clear to me that we have to keep the Internet open."
That was a little blurrier than Obama's statement, but it's a reminder that in 2006 she co-sponsored a Senate bill upholding net neutrality, observing in a statement that "The Internet as we know it does not discriminate among its users. It does not decide who can enter its marketplace and it does not pick which views can be heard and which ones silenced.... I have always, and will continue to strongly and unequivocally support these principles."
Add to those signposts the weight of the public response to a proposal by Wheeler that would pare away the unequivocal prohibitions against preferential pricing by ISPs. When the Sunlight Foundation analyzed more than 800,000 public comments the FCC had received and released, it concluded that fewer than 1% were opposed to network neutrality. (The other 99%, it said, favored net neutrality, were neutral, or were hard to determine.)
It's still unclear how these factors will influence the FCC, which is pondering network neutrality policy even as it considers a deal that could pose the greatest threat to the standard: Comcast's bid to acquire Time Warner Cable, a merger of two of the country's biggest ISPs.
At various points in recent history, the FCC has asserted its regulatory authority to protect network neutrality -- it slapped Comcast in 2007 for interfering with traffic from the peer-to-peer service BitTorrent, for example. But it also undercut its own legal standing in 2002 when it reclassified cable modem services as "information services" rather than "telecommunications services," narrowing its authority. And by allowing Comcast to acquire NBCUniversal in 2011, the FCC enriched the cable firm and strengthened its clout in Washington.
Wheeler's proposal would treat preferential deals between ISPs and online providers -- Netflix, NBC, etc. -- as legal unless they were shown to hurt innovation or competition or degrade service.
But that case would have to be made after the deals were in effect -- and as any business knows, once you have a stake in the ground you have the momentum. Challengers face an uphill battle, and an expensive one too. Network neutrality advocates such as Marvin Ammori say that makes all the difference in the world. The presumption should be against such arrangements unless the participants first show that they're not harmful.
But what's most important is an aspect of Internet regulation that seems to have dropped off the radar screen. It's the idea or reclassifying the Internet as a "telecommunications" rather than "information" service and ISPs as common carriers, reversing the 2002 decision. That would eliminate the grounds on which FCC efforts to uphold network neutrality have been overturned by courts twice -- once in a lawsuit by Verizon, and once in a case brought by Comcast.
The fact is that even if the FCC makes the right decision, by barring preferential deals, its authority to do so remains murky. That's a point that Clinton didn't address and the White House dodged. And that means that if you favor network neutrality, you should still be afraid.