The president’s recent comments seem to be at odds with other positions he has taken in regards to the notion of the “Open Internet” during his tenure.
Three months ago, President Barack Obama took an unenthusiastic stance in defense of net neutrality. In response to the Federal Communications Commission’s advancement of a proposal that would allow Internet service providers to charge websites for preferential treatment, the White House refused to take a position, recognizing only that it was an option on the table and that the president would be “looking very closely to see that the outcome of this results in a final rule that stays true to the spirit of net neutrality.” This differed vastly from the position he took as a candidate in 2007, when he argued that net neutrality was “a level playing field for whoever has got the best idea.”
The FCC’s proposal — initially championed by Chairman Tom Wheeler, a former executive with the National Cable Television Association and the Cellular Telecommunications & Internet Association — has been accused of giving large Internet service providers such as Comcast, AT&T and Verizon the freedom to treat customers differently based on their ability to pay. This is a direct affront to the notion of open access to the Internet for all.
Addressing reporters at an African leaders summit in Washington on Tuesday, Obama opted for a more forceful posture. “One of the issues around net neutrality is whether you are creating different rates or charges for different content providers,” remarked the president. “That’s the big controversy here. So you have big, wealthy media companies who might be willing to pay more and also charge more for spectrum, more bandwidth on the Internet so they can stream movies faster.
“I personally, the position of my administration, as well as a lot of the companies here, is that you don’t want to start getting a differentiation in how accessible the Internet is to different users. You want to leave it open so the next Google and the next Facebook can succeed.”
According to Canadian Internet monitoring firm Sandvine, Netflix and YouTube alone utilize more than half of the downstream Internet bandwidth in the United States. The popularity of streaming video-on-demand has grown in recent years — in part, due to a growing frustration with cable and satellite television providers and the saturation of smartphones in the U.S. and Canada.
As the notion that all content is equal means that smaller web content producers must compete for less of the available bandwidth in light of Netflix and YouTube’s domination at the same cost per megabyte of data as Netflix or YouTube, the major ISPs suggested that they should be able to negotiate a price appropriate to the major producers’ use of the downstream feed. In exchange, Netflix and YouTube would have direct access to the Internet backbone without the need to channel their content through third parties.
Opponents of this proposal argue that the ability for larger producers to negotiate better access to the Internet creates de facto discrimination against those unable to secure such access. Additionally, the cost of this preferential treatment is likely to be passed on to the consumer, increasing the cost of goods and services online. While the FCC has come forward with plans to ensure that this preferential treatment, or “fast-lane access,” would not encourage deals or actions that are anti-competition or harmful to consumers, few actually believe that the FCC would have the capability or authority to fully prevent bad actors from exploiting the advantages “fast-lane access” provides.
At the core of this argument is the definition of what broadband Internet truly is. In 2002, the George W. Bush administration classified broadband access as an “information service,” meaning that companies that develop Internet infrastructure are not subject to the neutrality rules established for “telecommunications services,” such as the telephone. With many Internet infrastructure holders openly discussing undoing net neutrality, the U.S. Supreme Court ruled that broadband access cannot be regulated as an “information service.” As it stands now, broadband access is unregulated and awaiting congressional action.
Obama’s comments seem to be at odds with other positions he has taken in regards to the notion of the “Open Internet” during his tenure. The Obama White House, for example, supported both the Stop Online Piracy Act and the Protect Intellectual Property Act, which would have made prosecuting online copyright infringement cases easier by making websites liable for hosted users’ content and expanding copyright offenses to include the unauthorized streaming of copyrighted materials.
The U.S. is also a signatory of the Anti-Counterfeiting Trade Agreement, an international agreement that many argue gives corporate interests unfair legal and competitive protections. Among some of the contested terms of the agreement are the removal of legal due process for accusations of copyright infringement, the assumption of legal responsibility by ISPs for users’ actions, and the prohibition of ISPs to host free software that could possibly access copyrighted materials. Michael Froman, the U.S. Trade Representative — a principal member of the president’s executive office, was influential in negotiating the treaty.
Additionally, Froman is also currently negotiating the Trans-Pacific Partnership, a multilateral free trade agreement with an intellectual property rights chapter that would strengthen criminal and civil penalties for copyright infringements, expand copyright terms, establish for copyright holders the exclusive ability to “make available” or withdraw their work from the public, criminalize temporary or “cached” copies of copyrighted works, and establish penalties for anti-circumvention of copyright protection — regardless of whether the individual is aware of the circumvention attempt. Similar to ACTA, the TPP treaty has been argued to be excessively pro-corporation.
With the FCC being independent of executive branch oversight, the commission is free to ignore the president’s Tuesday comments. However, many feel that the president was speaking more out of frustration than in an attempt to change the discussion. As the entertainment sector is one of the largest donors to the Democratic Party, there is a general feeling that the White House’s position on Internet neutrality during most of Obama’s presidency was shaped more by the realities of politics than the president’s actual beliefs.
“[There] are other countries … that feel comfortable with the idea of controlling and censoring Internet content in their home countries, and setting up rules and laws about what can or cannot be on the Internet. And I think that that not only is going to inhibit entrepreneurs who are creating value on the Internet; I think it’s also going to inhibit the growth of the country generally, because closed societies that are not open to new ideas, eventually they fall behind,” added the president Tuesday.