Not every problem that arises on the internet is a net neutrality issue

The New York Times editorial board this week came out in favor of reclassifying broadband as a Title II telecommunications service, lending its considerable establishment cred to an idea that had once seemed like an outlier.

The newspaper of record cited recent comments by Barack Obama in which the president expressed skepticism over allowing ISPs to sell fast lanes to the highest bidders, which is currently allowed but so far there has been little market for such paid prioritization. The FCC’s proposed open internet rules would continue to allow prioritization but only on “commercially reasonable” terms. Only by reclassifying ISP networks as common carriers, the Times concludes, echoing the argument made by many other net neutrality advocates, would the FCC have clear legal authority to ban paid prioritization deals outright.

This week also saw the remarkable images out of Ferguson, Missouri, in which police confronted peaceful demonstrators protesting the police shooting of an unarmed young African-American with firepower enough to retake Falluja in Iraq. As many have noted, the story blew up in real time on Twitter, where it spawned at least a half dozen hashtags, while the pages of Facebook, initially at least, remain a curiously Ferguson-free zone.

In a thoughtful post on Medium (that also blew up large on Twitter) Turkish writer Zeynep Tufekci noted that her Facebook news feed did eventually get with the times and started surfacing posts by her friends and others on Ferguson — a pattern that strongly suggests the topic was a (presumably inadvertent) victim of Facebook’s algorithmic news feed filters when those posts were first created.

She then goes on to suggest that the disparity in how the issue played out on Facebook and Twitter could also be relevant to the debate over net neutrality.

I’m not quite sure that without the neutral side of the Internet—the livestreams whose “packets” were fast as commercial, corporate and moneyed speech that travels on our networks, Twitter feeds which are not determined by an opaque corporate algorithms but my own choices,—we’d be having this conversation…

But keep in mind, Ferguson is also a net neutrality issue. It’s also an algorithmic filtering issue. How the internet is run, governed and filtered is a human rights issue.

And despite a lot of dismal developments, this fight is far from over, and its enemy is cynicism and dismissal of this reality.

Don’t let anyone tell you otherwise.

Let me try. Certainly, differences in how information gets to us through different channels about the same events is an important issue for any society (or citizen) to consider. But it’s also clear from Tufekci’s own experience that information passes through many layers on its way to us, any one of which can act as a filter and many already do.

Insofar as net neutrality is a regulatory or legislative question, however, I’m not sure what the answer is. Regulating how last mile ISPs handle bits on their network isn’t going to eliminate the filtering of information before it gets to us, regardless of which part of the Communications Act the FCC invokes.

The sort of filtering Tufekci is talking about, which has the potential to be far more pernicious than how quickly a page loads or a video stream arrives, isn’t even a network management issue per se. It’s a social issue, in this case (again presumably) a commercial one, but one that could just as easily be political or ideological. And it’s not one I want the FCC or any other government agency trying to adjudicate.

In fairness, I don’t think Tufekci was suggesting otherwise. But her framing of the issue as a matter of net neutrality shows just how far that concept is getting stretched to reach a whole host of unrelated issues.

The same could said (in fact I’ve said it) for the issue of paid prioritization. As Netflix and YouTube’s public spats with Comcast and Verizon should make clear, no one actually wants to pay for priority if they don’t have to. There is a legitimate question concerning the potential for last-mile ISPs to abuse their market power to extract rents from content and application providers. But that’s an ordinary question of antitrust law, which the FCC and the Federal Trade Commission (to say nothing of the Justice Department) already have the authority to police.

Similarly, it’s at least theoretically possible that a Netflix or a YouTube might someday be willing to pay to gain an advantage over a competitor. But the risk there would seem to be a matter of anti-competitive behavior on the part of Netflix or YouTube toward their rivals — a scenario in which the ISP that’s getting paid is not really the bad guy. Banning prioritization might eliminate that risk but it’s a pretty roundabout way of getting there, and one that may well put the burden on the wrong party.

There are many legitimate questions and concerns over how commerce and communication is conducted on the internet. But not every one of them implicates net neutrality.