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Three Bills to Save the Net

June 3, 2008 - by Donny Shaw

<img src=“”align=“right” width=200" hight="320">The net neutrality debate blew up and then fizzled out in the last Congress, but it’s back, in three forms, and one of them will probably get a vote before the current session ends.

Net neutrality is a principle that seeks to keep the internet free and open so that all kinds of users can do all kinds of things on a level playing field. According to Wikipedia, a neutral network is one that is “free of restrictions on the kinds of equipment that may be attached, on the modes of communication allowed, which does not restrict content, sites or platforms, and where communication is not unreasonably degraded by other communication streams.” The Save the Internet coalition puts it more simply: “Net Neutrality means no discrimination.” It’s “the reason why the Internet has driven economic innovation, democratic participation, and free speech online,” they say.

There are three bills, representing three separate ways of getting net neutrality protections enacted, currently waiting in Congress. None of theme have been voted on by a House or Senate committee, but with the issue continually gaining attention and picking up steam, and all these various bills waiting to move, we can expect some action soon. Here’s an overview of how each of them would work:

  • S.215 – Internet Freedom Preservation Act

This was the first net neutrality bill to be introduced this session, and it’s got a powerful cast of co-sponsors, including both of the leading Democratic nominees for President. In some ways it’s the most straight forward of the three bills. It seeks to amend the Communications Act of 1934 and tell the broadband providers specifically what they can and cannot do. Basically, it would outlaw discriminatory practices like blocking or hampering service based on the content being transmitted or the application being used, but would still allow internet service providers to offer tiered levels of service at different prices. For a detailed section-by-section breakdown, see this post from Harold Feld.

  • H.R. 5353 – Internet Freedom Preservation Act

Despite sharing a name, this bill is pretty different from the one discussed above. Instead of spelling out exactly what service providers can and cannot do, it expands the scope of the Federal Communications Commission (FCC) to respond to violations of net neutrality principles as they arise. Several people have mentioned in the comments section that leaving the issue up to officials in the FCC could weaken its effectiveness.

The bill lays out four principles of net neutrality and proposes them as official policy of the United States:

>(1) to maintain the freedom to use for lawful purposes broadband telecommunications networks, including the Internet, without unreasonable interference from or discrimination by network operators, as has been the policy and history of the Internet and the basis of user expectations since its inception;
>(2) to ensure that the Internet remains a vital force in the United States economy, thereby enabling the Nation to preserve its global leadership in online commerce and technological innovation;
>(3) to preserve and promote the open and interconnected nature of broadband networks that enable consumers to reach, and service providers to offer, lawful content, applications, and services of their choosing, using their selection of devices, as long as such devices do not harm the network; and
>(4) to safeguard the open marketplace of ideas on the Internet by adopting and enforcing baseline protections to guard against unreasonable discriminatory favoritism for, or degradation of, content by network operators based upon its source, ownership, or destination on the Internet.

As Art Brodsky at Public Knowledge points out, this language cleverly transports “the concepts from the Communications Act and from the FCC’s own Internet policy statement into a bill.”

In addition to these guidelines, the bill also calls on the FCC to develop an “Internet Freedom Assessment” and to hold a series of broadband summits – both across the country and online – to get input from consumers, businesses, advocacy groups and academics.

  • H.R.5994 – Internet Freedom and Nondiscrimination Act of 2008

The latest bill introduced in Congress to deal with net neutrality treats it as an antitrust issue. The bill would amend the Clayton Antitrust Act of 1914, which, among other things, prohibits charging different buyers different prices for the same thing, so that it specifically address discrimination by broadband network providers. It spells out what would be illegal, including discrimination on the terms and conditions of service, surcharges based on content or application, blocking access to legal content, and failing to disclose, in plain language, all terms and conditions of their service, among other things.

The bill has some powerful supporters in the House, making it somewhat more likely to be acted on than the House bill discussed above. It was sponsored by Judiciary Committee Chairman John Conyers (D-MI) and co-sponsored by Silicon Valley’s Zoe Lofgren (D-CA). And advocacy groups working on net neutrality issues, like Free Press, support it.

But not everyone who supports net neutrality supports this particular bill. Law professor Susan Crawford doesn’t think it takes the best approach. The bill “would allow for discrimination (as long as the discrimination was equal) by network operators, and is subject to substantial exceptions (including permitting measures by network operators that are designed to ‘prevent a violation of a Federal or State law’ or to ‘manage the functioning of its network’),” she says. “More importantly, case-by-case antitrust-like remedies don’t fit the network problems that the neutrality movement has identified,” she adds. “By the time we’ve managed to fight through the facts of a particular issue, the real battle – the battle for attention and user expectations – will have been lost.”

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