By guest blogger ROBERT M. McDOWELL, partner at Wiley Rein LLP in Washington, D.C. Former FCC commissioner McDowell is chairman of The Media Institute’s Global Internet Freedom Advisory Council.
In February, the Federal Communications Commission reversed decades of bipartisan consensus on America’s foreign policy for the Internet when it adopted new “open Internet” rules. These sweeping new regulations undermine America’s ability to resist increased government control of the Internet internationally, thus placing global Internet freedom and prosperity in jeopardy.
Proponents of more Internet regulation argued that “the strongest possible” laws were needed to prevent Internet service providers, such as cable and phone companies, from acting in anticompetitive ways and harming consumers by, say, blocking selected Web destinations. Their solution? Imposing regulations designed for the Ma Bell phone monopoly on 21st-century technology by declaring the Internet a public utility under Title II of the Communications Act of 1934. After unprecedented pressure from the White House and net neutrality activists, the FCC abandoned a more moderate approach in favor of Title II classification.
It is important to remember that this represented a stunning reversal of the policies of the Clinton and Bush administrations. Both presidencies rejected regulating the Internet like a public utility – domestically or internationally – instead adopting a highly successful “hands-off” approach. The result: The Internet is the greatest global deregulation success story of all time.
Despite the long-held policy against subjecting the Internet to telephone-style regulations, the FCC’s imposition of more than 1,000 new regulations under Title II – including the power to set “rates, terms, and conditions,” will serve to legitimize international efforts to expand government control of the Internet as well. With America’s bargaining power regarding the issue of Internet freedom weakened as a result, countries like Russia and China may encounter less resistance to increased multilateral authority over the Net.
Furthermore, the FCC’s new rules could have tangible consequences for America’s existing treaty obligations. For example, defining the Internet as a phone network may trigger expanded jurisdiction over the Web through existing treaties of the International Telecommunication Union, a regulatory arm of the United Nations. In reaction to similar proposals in 1998, President Clinton’s FCC chairman, William Kennard, presciently said that “classifying Internet access services as telecommunications services could have significant consequences for the global development of the Internet.”
In 2012 at the World Conference on International Telecommunications (WCIT), the United States led a coalition of 55 nations that refused to sign a global treaty that would presume new authority to regulate disparate aspects of the Internet. Now, however, with more government intrusion into this space at home, maintaining such global coalitions in the future will become increasingly more difficult.
Another potential consequence of the FCC’s rules is an unintended encouragement of intergovernmental rules to impose “sending party pays” fees for international Internet traffic that terminates on networks owned by foreign phone companies. Such a plan was put forward in 2012 by a handful of European phone companies and ITU member states. Fortunately, the plan was rejected, as the Unites States and others recognized it would increase costs for consumers as Internet content and app companies would have to pay fees – as a matter of international law – that would be passed on to all Internet users.
Additionally, China continues to advance a proposal to make a special committee of the U.N. General Assembly the dominant body to determine global Internet governance. Meanwhile, Russia has joined China in sponsoring an “international code of conduct for information security” at the U.N. that would authorize Internet censorship and enshrine multilateral state control of the global network. These countries have many client states that would support them in a one-country-one-vote treaty adoption.
This week, many of these same countries will be advocating their vision of the Internet’s future at a major international conference at U.N. headquarters in New York. Global multilateral oversight and regulation of the Internet is their goal. Included in the written submissions preceding the conference is a proposal by China, and members of the G-77 group of developing countries, calling on member states to reject use of the Internet for “subversive” or “political” purposes.
Also this week, China hosts the Second World Internet Conference. With government leaders from Russia, Tajikistan, Kyrgyzstan, and Kazakhstan – among others – in attendance, the purported goal of the conference is to promote “an interconnected world shared and governed by all.” At the conference, China will continue to push for “Internet sovereignty,” a vision for Internet governance that threatens to fundamentally transform the Internet from a truly international information sharing platform, to a compartmentalized series of intranets heavily regulated by governments.
By reversing decades of bipartisan agreement to limit Internet regulation, the FCC has created an irreconcilable contradiction between America’s domestic and foreign policies. Unfortunately, the cause of an open and freedom-enhancing global Internet will suffer as a result.
