FCC’s proposed rule changes on net neutrality violate a host of international obligations

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Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

— Article 19 of the International Covenant on Civil and Political Rights

With one month to go before the public comment period ends on the Federal Communications Commission’s recent vote to advance a proposal that would end net neutrality and create a system of paid-prioritization online, a new report has come out criticizing the FCC’s actions as potentially undermining the U.S. government’s international obligations regarding freedom of expression.

The legal analysis issued Monday by the Organization for Security and Cooperation in Europe – an inter-governmental organization that counts the United States as one of its 57 members – found that the rules on net neutrality (the principle that internet service providers treat all data equally and not discriminate based on content or price paid) proposed by the FCC may violate one or more of the following international accords to which the United States has subscribed: the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, and the 1990 OSCE Copenhagen Document.

Prepared for the Office of the OSCE Representative on Freedom of the Media by George Washington University Law School Professor Dawn Carla Nunziato, the report points out that Article 19 of both the Universal Declaration of Human Rights and the ICCPR protects the right to freedom of expression and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Despite this international obligation of the U.S. government, the FCC has proposed rules that would replace the so-called Nondiscrimination Rule with a No Commercially Unreasonable Practices Rule. As Prof. Nunziato explains it, “Permitting ‘commercially reasonable’ practices by broadband providers will allow – and indeed encourage – broadband providers to experiment with business models that include paid prioritization – and even exclusive paid prioritization – upon individualized negotiations with edge providers (providers of content, applications, and services).”

In practice, what this would mean is that broadband providers would be able to negotiate exclusive pay-for-priority arrangements with individual content providers, permitting broadband providers to anoint exclusive premium content providers “and effectively become censors of other disfavored, poorly funded, or unpopular content, by choosing not to favor such content for transmission to subscribers.”

For example, an internet service provider like Comcast “could enter into a deal with Foxnews.com to anoint it as the exclusive premium news provider for all Comcast subscribers, while comparatively disadvantaging all other news providers.”

Similarly, the FCC’s Proposed Rules would allow a broadband provider like Verizon to enter into an arrangement with the Republican National Committee to anoint it as the exclusive premium political site for all Verizon subscribers, while disadvantaging the Democratic National Committee’s and other political sites.

She goes on to describe other possible effects of this rule change:

Otherwise protected speech – a blog critical of Verizon’s latest broadband policies, a disfavored political party’s website – could be disfavored by broadband providers and not provided to Internet users in a manner equal to other, favored Internet content – subject only to the Proposed Rules’ vague prohibition against commercially unreasonable conduct. Such a regime would endanger the free flow of information on the Internet, would threaten freedom of expression and freedom of the media, and would herald the beginning of the end of the Internet as we know it.

The possibility of being sidelined by the ISPs could lead to “further entrenched market power by dominant content and applications providers, self-censorship by content providers who might alter their content to make it more palatable to broadband providers, and a reduction in the overall amount of speech that is meaningfully communicated as a result of content not being delivered effectively to its intended audience.”

These very real prospects led the OSCE Representative on Freedom of the Media, Dunja Mijatovic, to weigh in on the controversy yesterday.

“The proposed rules will allow telecommunications providers to discriminate against content which may conflict with their political, economic or other interests,” Mijatovic said in a letter to FCC Chair Tom Wheeler. “This would contradict international standards, OSCE commitments on free expression and freedom of the media and longstanding U.S. First Amendment principles.”

Besides U.S. international commitments on freedom of information, the net neutrality controversy spurred by the FCC and its chairman Tom Wheeler raises questions of U.S. compliance with its anti-corruption obligations under the UN Convention against Corruption. As a state party to this Convention, the United States has agreed to taking measures to prevent conflicts of interest and corruption in both the public and private sphere. In particular,

Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.

Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. …

Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.

Yet, the powerful chairmanship of Wheeler at the FCC demonstrates once again how the United States routinely flouts this obligation to prevent conflicts of interests. Prior to joining the FCC, Wheeler worked as a venture capitalist and lobbyist for the cable and wireless industry, with positions including President of the National Cable Television Association (NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA). He also raised over $500,000 for Barack Obama’s two campaigns.

As a reward for this financial backing, President Obama then appointed him to his current position where is empowered with rewriting the rules for the industry that once employed him. This sort of patronage is not only prohibited under the Convention against Corruption, but now, as we see, is leading to multiple violations of international principles, as documented by the OSCE in its report issued Monday.

“The Internet was conceived as an open medium with the free flow of information as one of its fundamental characteristics,” Mijatovic said upon the report’s release. “This should be guaranteed without discrimination and regardless of the content, destination, author, device used or origin.”

Mijatovic expressed her hope that her recommendations will be taken into consideration by the FCC.

The legal analysis of the proposed net neutrality rule changes is available here. To comment to the FCC regarding its proposed rules regarding net neutrality, click here.

A very accessible, succinct explanation of the FCC’s proposed rule changes was offered recently by John Oliver on his cable show Last Week Tonight:

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About The Compliance Campaign

Campaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.

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