US ruling on Net neutrality will have impact worldwide

This article was first published on Feb 25, 2015

The recent announcement by Mr Tom Wheeler, chairman of the United States Federal Communications Commission (FCC), that the US government will ensure Net neutrality signals a significant shift in how the Internet will be treated in the future.

The signal was clearly timed for the start of the Internet Corporation for Assigned Names and Numbers (Icann) meeting in Singapore that began on Feb 9 after Mr Wheeler's announcement.

"These bright-line rules," he declared, "will ban paid prioritisation and the blocking and throttling of lawful content and services."

Net neutrality is based on the core principle that Internet providers should treat online content equally. There should be no such thing as "fast lane" or "slow lane" in the Internet traffic for those who can or cannot afford to pay.

To date, only three nations - Brazil, Chile and the Netherlands - have formally ratified Net neutrality as a legal requirement.

Under the proposed rules, the US would regulate the Internet like a public utility provider. This would mean preventing Internet service providers (ISPs) from giving faster, better access to higher-paying customers, such as businesses. The FCC is expected to vote on the rules this week.

Although Net neutrality suggests moderateness (what could be more neutral than the very word "neutrality"?), Mr Wheeler's statement is strong and loaded with political overtones.

What's significant about his statement is that it was an explicit commitment by the US to Net neutrality.

His unreserved adoption of Net neutrality as a central principle of American Internet law was a paradigm-shifting moment.

For one thing, it brings the Internet within the ambit of regulators.

The US has always treated information services as a private- sector activity. This has meant a hands-off approach for the government. The Internet was viewed as a means to information services. Thus, it was left unregulated. Or more accurately, no new Internet-specific regulation was deemed necessary.

Because it had been invented from parts that were already regulated in the US - the telephone, the computer, software service - the Internet was already subject to regulation of one sort or another, albeit indirectly.

With the rise of the Internet, there was no move to develop a body of new regulation. For example, there are no rules on the quality of Internet service.

This was unlike Singapore, which had quality of service rules even from the early days of the Internet.

In Singapore, the Internet regulator, the Infocomm Development Authority (IDA), has developed a clear position on Net neutrality.

After a round of consultation in 2010, the IDA's position on Net neutrality came down on the side of protecting the consumer.

ISPs in Singapore can sell "fast lanes" as long as they continue to offer good service levels to their average users. But they are banned from blocking legitimate Internet content or degrading website access to such an extent that the websites become effectively blocked.

Second, the US government's policy change on Net neutrality can be said to be a triumph for grassroots politics. It is a direct result of the bottom-up push of Americans to the Obama administration to prioritise Internet users, not Internet gatekeepers.

Third, the change in stance on Net neutrality could have an impact beyond the US.

Under American law, Internet access is neither a human right nor a constitutional right. The FCC's Net neutrality rules are based on the US Communications Act, not on a constitutional mandate.

The FCC rules would reclassify broadband Internet - both wired and wireless - under stricter laws and treat it like a utility, giving people access to it the way they have access to power and water.

But as it is not constitutionally mandated, the rules will not be as permanent. This stands in sharp contrast to an increasing number of countries, such as France, Greece and Costa Rica, where individuals now have a constitutional right to access the Internet.

In this sense, the US trails, not leads, many other countries in promoting Internet access as a human right. Its decision is certain to animate conversations globally on this issue.

The Net neutrality evolution in American law is relevant to many countries as a valuable reference point to the interconnected world. Not because it may offer solutions to the world's Internet law issues, but because it has chosen, as in the past, to experiment with an array of new free-speech issues. Governments around the world should watch how the US government manages its Internet through Net neutrality.

Ang Peng Hwa is professor at the Wee Kim Wee School of Communication and Information, Nanyang Technological University, Singapore, where Kyu Ho Youm is the Wee Kim Wee visiting professor. The latter is from the University of Oregon, where he is the Jonathan Marshall First Amendment Chair.