Net Neutrality: What Law Librarians Need to Know

by Lora Johns

Net neutrality. It’s one of those terms that’s been slung around so often lately that it’s reached semantic saturation. Like fake news, or covfefe.

But you can’t be a law librarian and not care about net neutrality. Here’s a primer to restore meaning to the term so you can protect your library and inform your patrons.

Part I: What is it, exactly?

Net neutrality means that internet service providers cannot speed up, slow down, or block access to information online on the basis of user or content, among other things. The term’s first use is widely attributed to Tim Wu, a Columbia Law professor, who introduced the idea in the early aughts. See Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. of Telecomm. & High Tech. L. 141 (2003). However, the net neutrality was the de facto practice from the internet’s inception.

In a concrete example, Comcast contravened the principles of net neutrality in 2007 by actively interfering with peer-to-peer sharing of files among its high-speed internet subscribers. Comcast did not disclose that it was interfering with data transfers; the practice was only uncovered through tests conducted by the Associated Press. Comcast was, in essence, discriminating against high-volume users by throttling them—hindering their ability to fully use their internet service.

Why is that a problem? Throttling is one of several tactics that ISPs can use to manipulate the internet, closing it to people and content at their own unfettered discretion. In a nutshell, “broadband providers hold all the tools necessary to deceive consumers, degrade content, or disfavor the content that they don’t like.” Blocking, for example, would prevent consumers who subscribe to broadband from “get[ting] what they have paid for”—that is, “access to all (lawful) destinations on the Internet.” Throttling is similar to blocking; it involves the “degradation of lawful content, applications, services, and devices”—such as slowing down access. Paid prioritization would allow wealthier content providers to pay for “fast lanes”—preferential treatment of their content over that of creators who can’t afford to participate in the pay-to-play arena. Amazon, for example, could easily afford to have Comcast facilitate access to its offerings, while a local library’s budget would likely not suffice for it to be as competitive as commercial providers at delivering its content.

In essence, these tactics do to internet traffic what this bicyclist did to real traffic:

 

To address these dangers, the FCC formally adopted net neutrality rules in 2015. The FCC used its authority to regulate “common carriers” as the basis for this action. Common carriers are subject to rules that prevent public services from being manipulated in unfair ways. Hardly anyone can argue, in this day and age, that the internet is any less a utility than electricity or water. It provides many people their sole source of information and livelihood.

The FCC’s rules made blocking, throttling, and paid prioritization illegal practices. In essence, forbidding these three practices is what people mean when they refer to “net neutrality”.

Part II: Why should librarians care?

As we well know, information is power. An open internet means that all information—for better or for worse—is on equal footing. The end user has to be able to evaluate what is and is not credible, but the critical point is that she has access to it in the first place.

Think, for example, about access to legal documents. What if Westlaw and Lexis were afforded priority over projects like Cornell’s LII? What if only Biglaw firms could afford to pay for the choicest access to legal information, and pro se litigants, legal aid bureaus, and civil rights projects without similar funding could not do the kind of legal research necessary to defend their clients? What if major content providers could slow down or prevent internet access to “inconvenient” laws—for instance, consumer protection information that is against the company’s interests?

In the process of the current FCC’s decision to do away with the 2015 rules, the American Library Association and AALL submitted comments to the FCC on its proposal to repeal net neutrality. These comments emphasized the “severe adverse impacts on online education, research, learning and free speech.” Libraries’ public interest mission can no longer be carried out if the net is not free. Especially for low-income and disadvantaged members of the public, the library is often the only access point to government documents, employment information, and education, all of which has been trending inevitably away from print and towards electronic cloud-based formats. When we consider the issue of access to information—and indeed access to justice—abolishing net neutrality exacerbates inequality.

Moreover, the rise of paid prioritization would make the adequate provision of internet services out of budgetary reach for most libraries. As academic libraries are already feeling the purse strings tighten, they cannot afford to enrich the coffers of ISPs. But failing to pay will come at the expense of providing vital patron services. As AALL put it:

A world in which libraries and other noncommercial enterprises are limited to the internet’s “slow lanes” while HD movies can obtain preferential treatment undermines a central priority for a democratic society—the necessity of all citizens to inform themselves and each other just as much as the major commercial and media interests can inform them.

Part III: What now?

The FCC voted to repeal net neutrality rules on December 14, 2017. Since then, several private organizations and state attorneys general have filed lawsuits challenging the validity of the repeal, mainly on grounds that the decision was arbitrary and capricious and otherwise violated the Administrative Procedure Act. Several states have begun considering legislation to restore net neutrality within their borders—an unusual invocation of federalism by left-leaning politicians.

For us, staying abreast of federal bills and lawsuits is important, both for selfish reasons and because I’m willing to bet you the price of a fast lane that your patrons will ask you about it. GovTrack lets you keep an eye on federal bills, like the Save Net Neutrality Act, that are being introduced and considered. For federal docket tracking, I have Bloomberg Law alerts set on the AGs’ lawsuit led by Eric Schneiderman (the case is State of New York v. FCC, Docket No. 18-1013 (D.C. Cir. Jan 16, 2018)). You can (and should) also search to make sure your name was not used to make a fake FCC comment. (I discovered that not one, but two false comments were made using my name.)

Now that you understand what’s at stake, the most important thing is to continue to be informed and aware of the state of the internet in the United States. We owe it to our patrons and to our institutions.

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About lorajohns

Linguist, lawyer, librarian. B.A. in linguistics from Dartmouth College. J.D. from Yale Law School.
This entry was posted in Issues in Law Librarianship, Technology and tagged . Bookmark the permalink.

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