What are the consequences of the loss of net neutrality for consumers and startups?

So what is net neutrality?

The topic of net neutrality has dominated the internet for weeks. Many people have been speculating the implications of net neutrality in both the news and on social media. Will we have to pay more to access our favorite websites? Are startups and small businesses doomed? Is the internet as we know it gone forever? While net neutrality is a valid cause for concern, I wouldn’t start mourning the death of the internet just yet.

In 2015, the Federal Communications Commission established net neutrality regulations. High-speed internet was reclassified from an information to a telecommunications service. Information services are subjected to less regulation than telecommunications services, which can be regulated under Title II of the Communications Act. These rules were established to protect the open Internet, prohibiting Internet service providers (ISPs) from promoting some content over other content unfairly.

What may happen?

Without net neutrality regulations, this could occur in several ways, including paid prioritization, in which a content owner pays an ISP to promote its content over other content or to install “fast lanes” to their website. An ISP could also prioritize their own content, or block certain websites, such as those of competitors.

How did net neutrality get repealed? 

On December 14, 2017, the FCC repealed these net neutrality regulations. The Federal Communications Commission’s chairman, Ajit Pai, and two other Republican commissioners voted against net neutrality, granting them the majority at 3-2. The supposed benefit of repealing net neutrality regulations is to promote competition among Internet providers. Supporters of the repeal of net neutrality regulations suggest that internet service providers will not reduce consumers’ internet capabilities, but promote innovation and reasonable prices. Major internet providers such as Comcast and AT&T claim that our internet experience will not change drastically and that they will not engage in most forms of paid prioritization. However, many of us remain skeptical.

History of net neutrality

Throughout the internet, a cause for concern was established due to the behavior of ISPs before the 2015 regulations were put into place. In 2005, CompTel, a trade association consisting of AT&T’s competitors, requested documents from the FCC regarding AT&T’s potential overcharging of the agency for a project. AT&T dissented on the grounds of “personal privacy” under the Freedom of Information Act (FOIA). In 2009,  a Third Circuit federal appeals court ruled in FCC v. AT&T Inc. that corporations are entitled to personal privacy because they are considered persons under other sections of FOIA. The case was appealed, and the Supreme Court overturned the lower court decision, stating that corporations do not have the personal privacy that could protect them from the release of public records obtained by a government agency.

Several years later, Comcast was found to have been slowing its customers’ access to BitTorrent, a “peer-to-peer” file-sharing service. BitTorrent is one of the most commonly used means of sharing large electronic files, including audio and video files. The FCC attempted to regulate this practice but in Comcast Corp. v. FCC (2010), a federal appeals court ruled that the FCC does not have the authority to regulate Internet providers by requiring them to treat all web traffic equally, citing the FCC’s failure to demonstrate its “ancillary authority” over Comcast’s practices. That same year, the FCC approved the Open Internet Order, which barred internet providers from preventing access to certain websites (such as competitor websites). In 2012, AT&T faced backlash after blocking the FaceTime app on the phones of customers with certain data plans. The FCC charged AT&T a fine and eventually users were able to continue using the app. The actions of ISPs throughout the years make it very uncertain that we will continue to be able to view content without restrictions.

Actual Consequences

Although it is true that the internet as we know it is not going to change overnight, over time, the repeal of net neutrality regulations could cause significant changes for both consumers and startups/small businesses. Service providers like Comcast or AT&T could decide to charge companies to deliver more web traffic from the websites’ servers. Such service providers could also create faster lanes of delivery for their own sites so that consumers will have more difficulty viewing competitors’ sites. Companies (e.g Amazon, Netflix) could decide to charge their customers extra money in order to compensate for their payments to internet service providers, potentially increasing our internet bills drastically.

It seems unlikely that the repeal of net neutrality regulations will lead to meaningful increased competition, considering that a handful of corporations dominate internet service. Even more unnerving is the possibility of strict limitations on the content that we can view and the websites that we can use. If paid prioritization takes effect, and it is much faster and easier to access larger, more prominent companies online that can afford to pay for faster service, there are several dangerous implications for both consumers and small businesses. Limiting consumers’ access to websites of startups, small businesses, and small, independent news sources strips them of their consumer choice and their ability to stay informed.

Impact on Startups and Small Businesses

Furthermore, the absence of net neutrality could be detrimental to startups, which rely heavily on the internet to promote their products and gain a following. It is unlikely that startups will be able to compete with larger, more well-known businesses if internet service providers decide to start charging websites for service. Contrary to its supposed intention, the elimination of net neutrality will hamper innovation and competition.

While the idea of paying more for internet service is unappealing to most people, the most concerning aspect of deregulating the internet is the absence of information and choice that will affect all of us. Thanks to the open internet, we have been able to view the information we want from a plethora of sources. Without the open internet, we will see whatever the largest few ISPs, such as Comcast and AT&T, want us to see. While other sources of information, such as newspapers, do exist and are important, they do not reach everyone to the extent that the Internet does.

The Internet allows us to both access and shares the most recent information in seconds. It provides a connection among peers and between citizens and government. Without the open Internet, a restriction of freedom exists. However, there is still hope for net neutrality. Democratic Senator Chuck Schumer (New York) has suggested that he will force a Congressional vote on net neutrality by using the Congressional Review Act (CRA). It is likely that there will also be multiple lawsuits against the FCC. Now, during these essential first moments, is the time to be proactive in order to preserve net neutrality.

libel

All Publicity is not Necessarily Good Publicity

“Defendants childishly demeaned and disparaged Mr. Murray and his companies, made jokes about Mr. Murray’s age, health, and appearance, [and] broadcasted false statements… Nothing has ever stressed him more than this vicious and untruthful attack.” This quote is from Bob Murray’s defamation lawsuit against John Oliver, the host of HBO’s Last Week Tonight. Just three days after the episode about the coal industry aired on television, Oliver was accused of assassinating the character and reputation of the CEO of Murray Energy.

When comparing what Oliver had said about Murray to the insults of others (the notorious late Joan Rivers once said Tommy Lee Jones “makes Hitler look warm and fuzzy”), his comments comparing Murray to a “geriatric Dr. Evil” seem mild, and maybe even harmless. Especially in the age of media and the Internet, worse things have been said about other individuals. So you may be wondering: when is it legal to say whatever you want about another person on live TV or in the press?

Let’s talk about the distinction between defamation law and protected speech under the First Amendment. If a person can prove that his/her statement is a true fact, it is protected under the First Amendment. Additionally, statements of puffery (language that no reasonable person would believe to be true) are allowable. It is only false statements that run the risk of falling under the legal category of defamation.

Statements known to be false before their delivery can be considered defamatory. If someone says something false about another but it has no impact on their reputation, it wouldn’t be a legal issue. However, if the false statement had a profound impact on the public’s opinion on the victim, it would be defamation. Even opinions aren’t necessarily protected speech. It’s slander to knowingly spread a lie, even if it is prefaced by “in my opinion….”

In the age of social media where anyone can be a publisher and upload material for the whole world to see, defamatory statements are no longer limited to the rich and/or famous. “Regular” people are now becoming victims of defamation. Let’s take memes, for example. Memes have become an integral piece of pop culture, allowing people to communicate with friends by sending them photos with a relatable and/or humorous caption. But where do the photos from these memes come from? Often photos of people are taken from the internet without their knowledge or permission and are put in a completely different context for the sake of comedic effect. When the punchline of the meme is insulting and damages to the reputation of the person in the photo, it can be seen as defamatory.

Adam Holland, a man with Down Syndrome from Nashville, Tennessee, became the victim of a vicious thread of memes when people found a photo of him holding a drawing of a football team reading “Go Titans,” and photoshopped it. One man in Minnesota posted the image to Flickr and replaced Holland’s words with “I got a boner.” A radio station in Florida posted the image on their website with the title “Retarded News.” Michael Sharkey, program director of the station, explained that they used the photo as a banner for their news segment “designed to highlight odd stories that are seemingly always in the news.” The Holland family sued on the grounds that the doctored photo of Adam was defamatory, deceptive, and misleading. They were awarded $150,000 in federal court.

Defamation may be ubiquitous online in the age of social media, but that does not excuse it under the law. The Holland family’s case demonstrates that you don’t need to be a politician, actor, or business mogul, to be compensated for defamatory statements. Defamation law is by nature very subjective so the process of resolving these cases is not always clear. It’s important to know that protections from defamatory statements exist, but it is not always clear cut if something is “damaging to a person’s reputation.” Ultimately, it is up for a jury to decide whether a statement is defamatory or not.

technology

Don’t Feed the Trolls

Social media has taken over our lives, for better or worse. It’s where we go to see the news, share our meals, and express how we’re feeling about the latest sporting events. We send pictures, post reaction GIFs, and make sure that we are up to date with all of our friends. We create, collaborate, and communicate, at all times. We doze off to sleep on our Facebook feeds each night and wake up to greet Snapchat stories each morning. Social media has connected the world, but it has also introduced us to new means of harassment, permeating from message boards into homes, schools, and even the workplace.

When discussing trolling and cyberbullying, some argue that the primary differentiator is reaction.  Users troll to provoke reactions from others, and to make them the topic of conversation.  Trolling behavior is usually confined to inflammatory Facebook, Reddit, YouTube, and Twitter commentary towards different fan-groups.  Most trolls do it sarcastically, and have no conviction in what they actually say. As noted in a Time Magazine cover story last year, “trolls don’t hate people as much as they love the game of hating people.”  The common solution is “Don’t Feed the Trolls” or, just ignore and block their posts because it doesn’t add to the conversation at hand.

Cyberbullying, on the other hand, can be characterized as a methodical attack on a small group or individual. Traditionally, cyberbullying involves a smaller audience, either via chat-rooms or directly through someone’s social media accounts. Typically, the instigator takes the situation seriously and has malicious intentions. “Social media is a great tool, but it can be used for good and it can be used for harm and destruction” Tyler Clementi’s mother’s words ring true, spoken years after her son was outed as homosexual on the internet and committed suicide in 2010. His roommate, Dharun Ravi, used a webcam to spy on Clementi and used social media to invite peers to watch a sexual encounter. The case drew international attention to the bullying of LGBT teenagers. Another case drew international traction in 2012 after the suicide of 15-year old Amanda Todd. Before her death, Todd uploaded a video describing the cyber-bullying and blackmailing that she suffered, including the non consensual sharing of nude photos. The YouTube clip gained millions of views and sparked an inter-generational dialogue over the prevalence of social media in the daily lives of young people and how that power can be used to cause devastating outcomes.

Despite these headlines and massive advocacy efforts, courts have been relatively divided when ruling on such cases.  Elonis v. US (2015) further muddled the dialogue, with the Supreme Court ruling 8-1 that a Facebook post of threatening lyrics was not enough to prove intent to harm.

When does trolling cross the line into cyberbullying? Is hate-speech free speech? When does an online threat become admissible in court? No one can deny that we’ve come a long way from Barlow’s 1996 Declaration of the Independence of Cyberspace which relies on the Golden Rule and asserts a world where “anyone, anywhere may express his or her opinion no matter how singular, without fear of being coerced into silence or conformity.” Despite the monumental changes and paradigm shifts in Internet culture over the last twenty years, there has yet to be a clear response in the courtrooms. We are at a crucial moment for the legal implications of cyberspeech. Major backlash during the most recent election cycle and subsequent circumstances has catapulted questions of the First Amendment back into the national dialogue. We lack clear case law up to this point, but courts will begin to set precedents for online interactions over the next few years and create the fine line that will separate trolling from cyberbullying.  Until then, the decision will continue to be left to the reader’s’ discretion, whether it be perpetrator, victim, lawyer, or judge.

*Disclaimer this is not legal advice but the experience of a non-attorney member of the Law Decoder community sharing a personal experience for entertainment purposes.