My friend Marc Morial at the National Urban League had an excellent op-ed in the Congress blog last week, in which he pointed to the ongoing campaign for new “net neutrality” rules at the Federal Communications Commission as a key issue for civil rights groups.

He firmly opposed “fast lane” deals that would allow big broadband providers to impose a surcharge on content services like Netflix, and now HBO and CBS, to bypass congestion on their networks. We at the American Civil Liberties Union (ACLU) also oppose such deals, as they would actually produce congestion—fast lanes are only valuable in a traffic jam—and imperil free speech.

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Marc pointedly wrote that internet service providers “should not be able to block, degrade or slow down access to any website or service, or otherwise create ‘fast lane’ sweetheart deals that favor a few at the expense of the most.” I couldn’t agree more and couldn’t have said it better.

But Marc and I differ on how to stop these fast lanes. We support reclassification of high-speed broadband providers as “common carriers,” which, like other utilities, cannot legally discriminate in the provision of those services. And we do so precisely because a true open internet is one of the most important civil rights issues we face today.

It’s important to explain why we urge reclassification under Title II of the Communications Act of 1934, versus the FCC’s proposed case-by-case enforcement under section 706 of the Telecommunications Act of 1996, which the Urban League backs. 

First, challenges to a fast lane agreement under anything less than Title II face a steeply uphill battle in court. The decision that sparked the current net neutrality battle by striking down the old rules said explicitly that you can’t stop discrimination unless you formally classify providers as common carriers. In other words, you can’t stop fast lanes unless you reclassify.

There are also more practical concerns.

The FCC proposal requires a case-by-case approach to allegations of illegal discrimination or blocking. Under that system, the FCC would have to conduct a resource-intensive investigation of each claim, and many net neutrality violations would slip through the bureaucratic cracks. Additionally, each successful enforcement action would immediately be challenged by the broadband provider.

Given the state of the broadband market, such an approach would be hopelessly ineffectual. The whole reason why we need strong net neutrality protections, including reclassification, is because the vast majority of consumers have access to, at most, one source of true high-speed broadband service. Providers have every incentive to charge for these fast lanes, because they know dissatisfied consumers can’t vote with their feet and move to a competitor. This means that case-by-case enforcement would be a futile exercise in whack-a-mole and, given the shaky legal foundation for anti-discrimination rules without reclassification, most of the moles will be able to pop right back up.

It is also worth mentioning that reclassification is actually the modest approach here. Section 706 gives the FCC a broad mandate to promote broadband deployment, but without appropriate safeguards to prevent threats to free speech, it could conceivably be read by a rogue future FCC to allow for censorship on the internet or other abuses. Were the FCC to reclassify, it would be able to safely impose non-discrimination rules but would be unable to censor content.

Additionally, I’m compelled to quibble with Mayor Morial’s suggestion in his op-ed that groups supporting reclassification have been “deafeningly silent regarding civil rights and diversity issues.”

Respectfully, you really can’t say that about the ACLU. We have been—for almost a century—a tireless advocate for civil rights and equal justice under law. In the past year alone, we have secured major victories in Congress, the administration, and the courts on an array of civil rights issues, including overincarceration, criminal justice reform, racial profiling, pay equity, and voting rights. In fact, our concern for civil rights is a large part of what drives our stance on net neutrality.

Closing the digital divide is a core civil rights issue, and true net neutrality is a crucial component of that work. An open, fast, and affordable internet promotes equality for Americans of color, those with modest incomes and those living in rural areas. It helps people with disabilities be valued, integrated members of society. It gives isolated LGBT youth a place to realize they’re not alone. In short, it is an essential tool in making ours a more perfect union.

We will continue to support true net neutrality—including reclassification—as a civil rights imperative.

Murphy is director of the ACLU's Washington Legislative Office.