EFFecting Digital Freedom

by Parker Higgins

The meeting room of the Federal Communication Commission is an odd place to see a victory for the kinds of digital civil liberties that hackers hold dear.  But there it was in February, that after being targeted by over a year of nonstop activism campaigns, FCC Chairman Tom Wheeler led a vote in favor of strong net neutrality rules and delivered remarks on the importance of free speech online that sounded more like John Perry Barlow's "Declaration of Independence of Cyberspace" than something from a former cable lobbyist and current top regulator.  Wheeler insisted that these new rules are not, as critics charge, an effort to regulate the Internet; to the contrary, he said, net neutrality is no more a plan to regulate the Internet than the First Amendment is a plan to regulate speech.

How does that hold up?

Here's what we know: the FCC approved a plan to place Internet service providers under a different (and stricter) title of the Communications Act, and to prohibit those services from engaging in site blocking, throttling, or paid prioritization.  That last point prohibits the kind of "fast lanes" that had been tossed around in earlier proposals, and which would have led, naturally, to "slow lanes" as well - at odds with the basic principle of net neutrality.  Reasonable minds can disagree about how close regulators should get to the Internet in the first place, or how effective these rules will be, but these, at least, are noble goals.

There are, however, still some critically important things we don't know.  First things first: the entire process could use a lot more transparency.  For example, it seems anathema to the spirit of Internet policy, but even as the FCC vote took place, the actual text of the new rules was not available for the public to read.  There's been a lot of finger-pointing between commissioners about why that's the case, but sadly, it's the way things go with the FCC.  That lack of transparency is one reason EFF has been skeptical of the agency for years.

It's especially important in this case to see the actual language, because the FCC may have used the kinds of weasel words that could allow bad behavior from ISPs, or leave the rules themselves open to legal challenge.  For example, the prohibition on site blocking extends only to "legal content."  We'll have to watch carefully to make sure that language isn't used to draft ISPs into fast-and-loose vigilante copyright enforcement, for example.  Similarly, plenty of pundits expect one or more of the ISPs to sue to block the rules; if that happens, ambiguity in the language could weaken the FCC's case.

Net neutrality is an important goal, but considering these factors it's a bit premature to say for sure we've gotten much more than a mixed bag.  But even if it doesn't close the book on the Internet's efforts to achieve net neutrality, it will certainly remain an interesting chapter.  For one thing, this is a story where conventional wisdom proved completely wrong.  As of January 2014, in the wake of FCC's last major courtroom loss to Verizon, it was universally held that net neutrality was toast and the agency would never find the political will to undertake the reclassification that could save it.  When EFF joined a large and incredibly diverse coalition of activists to push for that outcome, it was a moonshot, but 13 months later the coalition won.

Taking a step back: that vote is the latest in a string of apparent victories for computer users over forces that have historically been able to shape laws, regulations, and even market conditions.  In just the past several years there were also, of course, the twin victories over the Stop Online Piracy Act and the Anti-Counterfeiting Trade Agreement in early 2012, and the massive push for more secure and private online services in the wake of the Edward Snowden revelations in June 2013.

Each of these developments were influenced by countless factors, but they have some important elements in common.  Substantively, each represents a victory for hacker core principles - freedom of speech, freedom of privacy, and the freedom to build new things, or play with old ones, without getting permission first.  Tactically, though, the overlap is even more pronounced.  In every case, people harnessed tech to amplify public voices in ways that politicians and executives didn't know to expect.  It's been more than just moving traditional activism online - there's been the kind of creative and playful problem-solving that we've always known is part and parcel of the hacker community.

Many hackers express a desire to keep out of politics.  Tech wouldn't go to government.  But since networks have pushed into everybody's lives, government came to tech.  For at least the past several years, it hasn't been an option to just ignore what the politicians are doing.  As EFF continues work on these issues, major battles loom: legislative reform of the NSA and other intelligence agencies' surveillance practices, the eradication of DRM software and the laws that prop it up, and a sorely-needed rewrite of computer crime laws like the Computer Fraud and Abuse Act, to name a few.  If we're going to win - and we must - we'll need inspiration and help from the hacker community.