Net Neutrality Laws

The internet is the glue that binds the Information Age, the infrastructure on which an increasing number of daily transactions, services, and connections are made or delivered. Its early innovators envisioned the online world as a great equalizer, where you could access a friend's gardening blog just as reliably as your favorite blockbuster TV show. That's the idea behind "net neutrality": the notion that all internet content should be equally accessible.

Once maintained mostly as a matter of agreed-upon policy among the various stakeholders, then briefly enforced by federal law, net neutrality is no longer protected at federal level. And while internet service providers (ISPs) have promised not to play "traffic cop" or favor one content provider over another, there's not much stopping them from doing so (although many states have passed or introduced their own net neutrality laws).

The following is a summary of net neutrality law, challenges from the states, and where policy currently stands at the federal level.

Net Neutrality Explained

A free and open internet was considered crucial to maintaining an even playing field and cultivating innovation when the internet was just becoming a central feature in people's everyday lives. And while multibillion-dollar corporations such as Amazon and Google now have the power to move markets and crush competitors, they also benefited from net neutrality when they were scrappy startups.

Since ISPs provide the bandwidth for online content -- and video streaming websites use up more than half of the total traffic -- it follows that they may want to charge users of sites such as Netflix and Youtube more (either directly or indirectly) for access. Similarly, ISPs that own content (for example, ISP Comcast owns content provider NBC) could theoretically speed download times for their content while slowing content from competing sites, although antitrust laws may be triggered in such a scenario.

Another concern is the fate of small, independent, or otherwise marginalized content providers, which could be pushed aside as larger, more-mainstream content is given preferential treatment. In a sense, the concern is that corporate interests would have the power to censor what many believe is a public resource.

What is Net Neutrality Law?

We know that net neutrality is an idea that ISPs should not give preference to any particular source of content (or, conversely, slow content from certain providers), but how does this actually translate into net neutrality law?

ISPs generally honored net neutrality before the Federal Communications Commission (FCC) made it official policy in 2016. Even without an official policy in place, the FCC worked to enforce it under both the Bush and Obama Administrations. But net neutrality law is no longer enforced at the federal level, effective June 11, 2018, following an FCC rule change.

In a statement, the FCC claims it will "police and take action against internet service providers for anticompetitive acts or unfair and deceptive practices" despite having reversed the rule. The agency claimed that net neutrality laws were too restrictive on businesses and discouraged investment in broadband capabilities.

As the law currently stands, ISPs are free to prioritize (or deprioritize) content providers as long as they disclose it to the public. While the old law made any blocking, slowing, or prioritizing of websites a violation, the new law makes such actions violations only when they're not disclosed to the public (either through their own websites or via the FCC).

But this doesn't mean ISPs are clamoring to control traffic, since this would be overwhelmingly unpopular with the public and likely create a backlash.

State Net Neutrality Laws and Legal Challenges

Attorneys general from nearly half of the states filed suit against the FCC in the U.S. Court of Appeals, claiming that the rule change is "arbitrary [and] capricious" and violates the Constitution, among other arguments. In addition, several state governors (including New Jersey Gov. Phil Murphy) have issued executive orders requiring ISPs doing business with the state to honor strict net neutrality laws. Finally, a majority of states have introduced bills (four have passed, including California's) creating net neutrality rules within their borders.

The Department of Justice (DOJ) immediately sued California once its bill was signed into law, after which the state agreed to postpone its planned Jan. 1, 2019 implementation (pending adjudication of the suit). Meanwhile, the states' lawsuits against the FCC may eventually be heard by the U.S. Supreme Court.

It's not clear how any of this will settle out, but it's possible that the Supremacy Clause of the U.S. Constitution may ultimately uphold the FCC's reversal of net neutrality law. Even if that were the case, an act of Congress (unless blocked by a presidential veto) could reverse the FCC's rule change and reintstate net neutrality law at the federal level.

Concerned About Net Neutrality and Your Consumer Rights? Contact a Lawyer

Net neutrality is an unsettled area of law that is likely to see some additional changes in the future. While net neutrality law is no longer enforced at the federal level, you may have questions or concerns about your rights to create or access online content within the context of state law. Don't remain in the dark; talk to an experienced consumer protection attorney today.