In the early and mid-’90s, a bunch of anarcho-utopist nerds in Silicon Valley very politely asked the government to keep its hands off the fancy new digital space called the internet. The government complied, partially because they found this anarcho-utopian spirit charming, but mostly because it seemed too complicated to have to deal with.
In these people’s eyes, the internet was a shining exemplar of what the dead philosopher Isaiah Berlin called “negative liberty,” a space in which no external forces were there to govern the actions of individuals. The opposite of “negative liberty,” Berlin decided, was “positive liberty,” which exists when an individual acts in whatever way seems like a good idea to them. But, as Berlin philosophized at some point between him coming up with these two dueling ideas of liberty and him dying, one person exercising their positive liberty can restrict the negative liberty of another. Think about what would happen if I were juggling chainsaws in a field; me exercising my freedom to juggle chainsaws restricts your freedom to walk in that part of the field. That’s positive and negative liberty.
On the internet, this roughly means that because there weren’t any rules, there weren’t any rules against having rules because that would have been a rule and therefore against the rules. It also meant that companies had the freedom to create their own rules on the internet — rules that would, as we have seen time and time again, reach outside of the internet to shape the way we conduct ourselves in the real world. And the government, possessing an overarching conception of the technology industry as a net good for society as well as this really complicated thing that’s hard to understand, decided it just wasn’t really worth stepping in and playing referee.
Such a framework makes the Federal Communications Commission’s decision to roll back net-neutrality protections — an effective refusal by the regulatory agency to force internet service providers to offer the same quality of internet to everyone on every website — seem no less tragic, but it at least helps explain their (flawed) thinking. “The internet is the greatest free market success story in history,” FCC chair Ajit Pai said in a speech a few months before its December 2017 decision, decrying what he viewed as a mandate for his agency to “micromanage the internet.”
While some might argue that it’s precisely the duty of the FCC to micromanage the internet, it’s way easier to say something’s not actually part of your job description than to actually do the thing you really ought to be doing. Besides, Pai claimed in those same remarks, surely the Federal Trade Commission, which he called “the nation’s most expert and experienced privacy regulator,” would step in to “be a cop on the beat protecting Americans’ online privacy.” (Elsewhere in his speech, Pai complained about conservative bugaboos such as shadow-banning, how the government being in charge of stuff would turn us into Venezuela, and “free speech” on college campuses, which should give you a pretty good idea of what his agenda with all of this stuff is.)
But, hey, guess what! Earlier this week, the FTC started doing what the FCC is too busy protecting the rights of angry Breitbart commenters (or whoever) to do, which is to say it’s cracking down on the sketchy personal data practices of the ISPs that were empowered by Pai’s anti-net neutrality decision. In a letter sent to major providers such as AT&T, Xfinity, Verizon, and Google Fiber, the FTC ordered the companies to “describe in detail each company program that collects, transmits, receives, stores, maintains, uses, or discloses personal information about consumers.”
The agency’s demands to ISPs are fairly comprehensive: In addition to the boilerplate privacy information outlined above, providers are being required to disclose their internal policies around their customers’ personal information, if and how people’s data is anonymized for certain purposes, copies of their privacy policies as well as information about the number of people who actually read them, and if customers are ever allowed to “access, correct, or delete” the information that their ISP has on file about them. Most importantly, perhaps, the FTC is also forcing companies to share whether they’ve offered incentives for customers to allow them to monitor their internet activity, or if they’ve throttled service for those customers who have opted out of having their personal data tracked, which speaks precisely to the sort of tiered model of internet quality that the erasure of net-neutrality protections could lead to.
In a press release, the FTC explained that it was obtaining this information from ISPs “to better understand [their] privacy practices in light of the evolution of telecommunications companies into vertically integrated platforms that also provide advertising-supported content.” Indeed, the past few years have seen a flurry of consolidation and vertical integration in the industry: In 2016, Verizon joined forces with the publisher Hearst to purchase Complex Media and create a buttload of original video content, while earlier this year, AT&T fought back the Trump administration’s attempts to prevent its merger with Time Warner and will soon be offering a streaming service meant to rival Netflix (AT&T also bought Otter Media, parent company of the anime-focused streaming service Crunchyroll, in 2018).
This is to say nothing of Google, whose next large-scale initiative following the introduction of its Google Fiber internet service will be Stadia, a platform for streaming video games in real time, or the fact that Xfinity is owned by Comcast, which also holds stakes in NBCUniversal, Sky Limited, Dreamworks, Vox Media, and BuzzFeed, and is by some metrics the largest media company in the world. Suffice it to say that most of the biggest broadband providers would have a vested interest in prioritizing the speed at which their customers reach certain online properties — their own — in ways that seem unfair on their face. “Under current law, the FTC has the ability to enforce against unfair and deceptive practices involving internet service providers,” the press release notes, a sentence which may feel ominous to you if you happen to be employed as a lawyer for a large telecom company.
The fight for net neutrality may not be dead. On April 8, the House of Representatives is set to vote on the dramatically titled Save the Internet Act, which according to Reuters, “would repeal the [net neutrality] order introduced by FCC Chairman Ajit Pai” and prevent the agency from imposing similar orders in the future. However, rules are only as good as the people who enforce them, and as long as people like Pai are being told to keep the ISPs he clearly loves in check, I’d kind of prefer that the FTC, which has shown it actually cares about the rights of individuals over corporations, take the wheel on this one.