The freak-out over net neutrality falls somewhere between the Y2K paranoia and the Mayan Calendar on the Chicken Little scale. CNN declared the passage of the 2017 Restoring Internet Freedom Order the “End of the internet as we know it.” The official Twitter account of Senate Democrats Tweeted, “If we don’t save net neutrality, you’ll get the internet one word at a time,” with large spaces between each word. The rhetoric was so overheated a bomb threat was called in to the FCC meeting where the rollback of net neutrality rules was passed.
Of course, the catastrophe never came to pass. Today, more Americans are connected to faster internet than ever before. In the wake of surging traffic caused by the Covid-19 pandemic, U.S. networks shined against global counterparts, many of which are regulated as utilities.
The net neutrality meltdown ought to be a huge liability for Democrats. However, the conservative tantrum at the tech sector, Amazon, Apple, Facebook, and Google in particular, has left any effort to keep net neutrality off the books exposed to lethal accusations of rank hypocrisy.
President Biden has made reimposing net neutrality rules a priority of his administration, as evidenced by its inclusion in his recent sweeping executive order on competition. It shouldn’t make sense that Democrats could feel so bullish about their laughably wrong predictions in order to pursue their policy goal of utility-style regulation of ISPs. Yet, whether they realize it or not, conservatives have spent much of the years since the Restoring Internet Freedom Order eviscerating some of the core arguments for it.
While net neutrality is an amorphous concept, generally it means all internet traffic is created equal and thus ISPs should not block, slow, or prioritize any traffic unnecessarily. Conservatives balked at the concept for reasons of pragmatism and principle. Pragmatically speaking, network owners are best positioned to manage their networks as they see fit versus a cumbersome bureaucracy. There are any number of instances where traffic management practices that violate net neutrality principles actually benefit consumers, such as blocking malware, prioritizing medical-related data, or free music and video streaming.
More fundamentally, the imposition of rules designed to achieve net neutrality violate core conservative principles surrounding property and First Amendment rights. In 2017, Supreme Court Justice Brett Kavanaugh, while serving as a judge on the DC Circuit Court of Appeals, wrote that the 2015 Open Internet Order violated the First Amendment and that “First Amendment protection does not go away simply because you have a large communications platform.”
Justice Kavanaugh’s words stand in stark contrast to a growing chorus on the right when it comes to the large communications platforms owned by Silicon Valley firms. For example, multiple GOP-controlled state legislatures are behind laws designed to force tech platforms to carry certain political speech. This is happening despite a federal judge recently imposing an injunction against Florida’s for blatantly violating the First Amendment.
On the federal level, several bills have been introduced in Congress to make sweeping changes to or repeal the law known as Section 230. Section 230 has become the focal point of bipartisan anger against tech companies. Prominent Republicans, including former President Trump, have lambasted the law as a license to “censor” conservative voices. Of course, the First Amendment is what allows companies to moderate. Section 230 is simply the law that prevents companies and users from being sued for things they didn’t create, but may have hosted or shared. Without it, companies would assume liability for all content on their websites, whether they were aware of it or not, simply for exercising their own First Amendment rights.
As poorly-understood as Section 230 is, the law does something else that even fewer people are aware of: it’s a cornerstone of the rollback of net neutrality rules. That’s right, the Trump-era FCC not only favorably cited Section 230 multiple times in the Restoring Internet Freedom Order, it is the first thing cited, declaring it is “the policy of the United States ‘to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.’”
The next net neutrality battle is already cresting the horizon. The historical record is decidedly against the heavy-handed approach favored by Democrats and the rhetoric during the last-go-round ought to weigh heavily against any efforts to reimpose utility-style regulations on ISPs. Instead, conservative rhetoric and policy proposals towards the tech sector have ceded virtually all the principled ground. It will be virtually impossible to mount any kind of serious resistance against reimposing utility-style regulation of ISPs if conservatives don’t soon come to their senses on tech, the First Amendment, and Section 230.
