FCC and Net Neutrality — Some Predictions about the Fallout

The end of net neutrality — for now — is big news, because it’s a big deal; there’s just no getting around the fact that the way consumers experience the internet is going to change. What are some of the practical consequences?

On cybersecurity, it’s not at all obvious what the effect will be. Essentially, slowing down, speeding up, or blocking traffic can be both good and bad. On the plus side, service providers could use these tools to respond to attacks in real-time (blocking or slowing down traffic related to an attack). This is especially useful for a distributed denial of service (DDoS) attack. On the negative side, manipulating service speeds might in fact allow attackers to hide by, for example, taking advantage of a slower network speed to mask its behavior.

Quite apart from the obvious commercial questions – users having to pay more for certain content — there are serious free speech questions and the possibility of abuse. What if someone creates a website critical of of an ISP? (You can probably quickly find such websites that already exist.) Will the provider be permitted to slow down or even block access to that site? That seems like an obvious and particularly egregious example, but what about something more subtle – slowing down access to a political website, or social media sites, in which millions of users engage in political commentary? Could service providers do so in the name of protecting security? Would that be enough for them to get away with it?

There will be legal challenges to the FCC’s repeal, ranging from whether the repeal is within the scope of the FCC’s authority, to whether it acted in an arbitrary and capricious manner, to whether the public comment process was properly utilized in the run up to the policy change (given the indication of fraudulent comments during the comment period). The immediate questions is whether any lawsuit will be filed quickly enough to allow a court to enjoin the action, and whether a court will agree that an injunction is necessary now, or whether the FCC may proceed while the litigation plays out in a parallel process. (The New York Attorney General has already signaled filing a lawsuit.)

Finally, it will be important to see how user agreements reflect the requirement of transparency. The agreements will, of course, probably be effectively useless, added on to lengthy end user agreements that no one reads. (Tip: you should read your agreements.)

The political battle is far from over, the legal battles are just beginning, and the way the internet will change is going to take some time for users to internalize.