Singularity Law

Many legal pundits start each year with an excellent series of predictions on where IT law will go during that year. I don’t want to provide a list of issues that may (or may not) be resolved in the next 12 months. Instead, I want to note an issue that II believe will be THE major IT law issue for 2010 (and for many years thereafter) — network neutrality.

There is no hard-and-fast definition of “network neutrality.” However, as a baseline, “network neutrality” (or “net neutrality”) should include the general principles that ISPs that provide access to the Internet should not be allowed to discriminate between users, websites or content. ISPs should provide the conduits for the exchange of messages, data and content, and should otherwise stay out of the way.

The Federal Communications Commission has jumped into this debate in its Comcast ruling on August 20, 2008, where it held that Comcast had violated the agency’s Internet Policy Statement when it blocked certain applications on its network. This practice, the FCC concluded, “unduly interfered with Internet users’ rights to access the lawful Internet content and to use the applications of their choice.”

Comcast appealed to the U.S. Court of Appeals for the D.C. Circuit, as have other public interest groups. Comcast argued that the FCC does not have the authority to enforce its Network Management Principles and the Commission’s order was invalid for that reason. The FCC argued that it has ancillary authority under Title I of the Communications Act to implement the broad statutory goals for an open, user-controlled Internet laid out by Congress.

A recent hearing (January 8, 2010), before the D.C. Circuit, did not go well for the FCC. The three judges were openly skeptical of the Commission’s assertion that several provisions in various laws, including the 1996 Telecommunications Act, gave the FCC the ancillary authority required to regulate network management.

If the appellate court rules against the FCC, which is likely, there are several avenues that the Commission can pursue. It can appeal the decision to the U.S. Supreme Court. It can also go to Congress to ask for legislative authority to pursue network neutrality.

It is also possible that the Federal Trade Commission could step in and develop network neutrality principles, under its general authority under Section 5 of the FTC Act, to go after unfair and deceptive trade practices.

To a great extent, the future of the Internet depends on enforceable network neutrality rules. Without them, the Internet may become balkanized, with different ISPs applying different rules to websites, users and content.