How voters lost the freedom to access the campaign website of their choice
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The Senate may soon be voting on net neutrality. The net neutrality debate is driven in part by the fact that Internet service providers (ISPs) have the technical ability and financial incentive to act as gatekeepers, picking winners and losers in the Internet marketplace. Perhaps an ISP will favor a particular airline reservation website or an online newspaper by blocking access to its competitors, or simply by making access to competitors’ content painfully slow. These delays matter; Google found that a majority of viewers typically abandon a website if they have to wait just three seconds.

Members of Congress may not realize that ISPs can similarly pick winners and losers in elections. A modern campaign depends on the Internet to accept contributions, and to get its message out. If access to a campaign website is slow, impatient users will abandon the site, some credit card transactions will fail, campaign contributions will be lost, and fewer supporters will sign up to volunteer. With today’s technology, an ISP can easily degrade performance when a subscriber accesses one site, and improve performance when she accesses a competing site, all without revealing the cause. Obviously, the impact on a campaign is even greater if an ISP blocks a site completely. Thus, whether they realize it yet or not, politicians depend on the good will of ISPs to succeed, just as online merchants and commercial content providers do. This is not healthy for free elections, or for a free market.

ISPs will probably say that they would never wish to favor one candidate’s website over another, but its hard to argue that ISPs don’t care who wins elections when ISPs like AT&T, Verizon and Comcast are among the twenty biggest spenders on lobbying in the U.S. (The combined lobbying expenditures of these three ISPs alone over the last decade was close to half a billion dollars.) It would be tempting for an ISP to use control of its network to influence a close election rather than using only its checkbook, if there were no government-imposed limits on this kind of behavior.

The Republican chairman of the Federal Communications Commission (FCC) from 2001 to 2005, Michael Powell, addressed these dangers by declaring four fundamental “Internet Freedoms.” According to then-Chairman Powell, “first, consumers should have access to their choice of legal content,” which is only possible if ISPs never block legal content. While there has been disagreement over some details of net neutrality policy, every FCC chairman in both the George W. Bush and Obama administrations supported these Internet Freedoms.

The Trump administration’s FCC recently shattered what even it acknowledged to be the “long-standing consensus under both Democratic and Republican-led Commissions, represented by the four Internet Freedoms, that consumers should have access to the content, applications, and devices of their choosing,” In December of 2017, a radical decision by the FCC gave ISPs unlimited latitude to block or throttle access to content for any reason, or for no reason at all. This FCC Order further asserts that the FCC does not have authority to prohibit ISPs from blocking content in the future, and that FCC regulations preempt states from doing so. Thus, if this FCC order survives legal challenges, no federal or state agency will be allowed to ensure that Internet users have access to their choice of legal content, including their choice of political campaign websites as well as their choice of online merchants. Goodbye, Internet Freedoms.

The nation needs common-sense FCC rules that prohibit blocking of legal content, and other forms of unreasonable discrimination. This cannot happen while the FCC’s recent decision stands. Members of Congress who hope to use the Internet in the 2018 campaign could choose to rely on the kindness of ISPs, or they could vote to reverse the FCC’s dangerous decision using the Congressional Review Act (CRA), and thereby restore the Internet freedoms for constituents and for all Americans. 

Jon M. Peha is a professor at Carnegie Mellon University, and former Chief Technologist of the Federal Communications Commission (FCC).