Two human rights professors at the George Washington University Law School have come up with that rarest of unicorns in the debate over net neutrality: a novel argument.
That argument comes in the form of a new filing today to the FCC from Arturo J. Carrillo, director of GW's International Human Rights Clinic, and professor Dawn C. Nunziato. Anything less that an outright ban on all forms of paid prioritization -- which are fees that allow the providers of some online content, such as Netflix, to have their digital content treated better by internet providers -- exposes the United States to complaints at the United Nations and the World Trade Organization, they say. The absence of such bans on paid prioritization, says Carrillo, "sets the stage for conflict."
The package of proposed rules that Tom Wheeler, the chairman of the FCC, floated to kick off this current round of rule-writing in May, argue the professors, "would operate as an impermissible restriction on freedom of expression by making access to certain kinds of content more difficult for some users, based on a prioritization of services due to the privileged socio-economic status of the content provider."
They go on. "Only those companies and organizations with deep enough pockets will be able to afford to pay for 'fast lanes,' making their information, ideas, and opinions more readily accessible to Internet users, while less well-funded information, ideas, and opinions will be relegated to 'slow lanes.'"
Carrillo and Nunziato's argument has two prongs. The first is has to do with human rights agreements that guarantee a freedom of expression, including the ability to "receive and impart information and ideas through any media and regardless of frontiers," according to the Universal Declaration of Human Rights, adopted by the United States in 1948. And two years ago, the U.N. General Assembly's human rights council adopted a striking resolution concluding that "the same rights that people have offline must also be protected online, in particular freedom of expression."
The second is that, when it comes to trade, anything short of a ban on paid deals would violate the principle, laid out in World Trade Organization agreements, that participating nations should have "non-discriminatory access" to telecommunications networks in other member countries.
Some context: In Chairman Wheeler's original proposal, paid prioritization would still have been possible in some circumstances. But in mid-November, President Obama came out with a plan on net neutrality that would explicit do away with that option. "Simply put," read Obama's statement,"no service should be stuck in a 'slow lane' because it does not pay a fee." In his response to the President, Wheeler wrote that he opposed "special deals" that would "prioritize Internet traffic and harm consumers, competition, and innovation." But he has yet to publicly express support for an outright ban on paid prioritization.
How the Internet works in the U.S. will also matter to users outside of the United States. Countries such as Brazil and Chile, for example, have adopted strong national net neutrality protections for Internet traffic within their own borders. But, an estimated 90% of Internet traffic from Latin America routes through south Florida at some point. That means the forthcoming rules from the FCC will, in essence, override net neutrality rules in other countries.
Pleasing the U.N. Security Council isn't likely to be on the top of the FCC's agenda -- especially when member countries like Russia and China fall way short on the protections of online freedoms, according to those who track such things. That said, the commission probably isn't all that eager to damage whatever reputation the United States might have as a leader on human rights and fair trade.
Still, Berin Szoka, president of the free-market think tank TechFreedom, criticizes Carrillo and Nunziato for backing themselves into an argument for giving foreign governments more say in how the Internet runs, something that "virtually the entire U.S. tech sector and all civil society groups" have opposed with "astonishing unity." In short, argues Szoka,"the Internet shouldn't be subject to global telecom regulation."