As we recently discussed, the FCC’s new Net Neutrality rules forbid Internet service providers (ISPs) from blocking access to certain materials. These rules make clear that “fixed broadband” ISPs (AKA cable and DSL Internet providers) cannot block access to lawful materials. But, illogically, whether they can block access to unlawful materials is not at all clear.
The rule on what fixed broadband ISPs can and can’t block appears clear on its face: An ISP cannot “block lawful content, applications, services, or non-harmful devices . . . ." But ambiguity appears when examining the word “lawful.” Most would assume that the word applies to each of the four things listed, meaning that ISPs can block any unlawful content, application, service or device.
Yet the FCC’s own explanation of this rule indicates that this interpretation is incorrect. As the FCC explains: "The rule protects only transmissions of lawful content, and does not prevent or restrict a broadband provider from refusing to transmit unlawful material such as child pornography." (emphasis added).
The FCC explicitly states “lawful” only applies to “content.” It never mentions applications, services or devices. So does this mean an ISP can block access to unlawful content, but can’t block access to an unlawful application, service or device? According to the FCC’s explanation: Yes.
The ramifications of this interpretation are expansive. What the ISP can or can’t block will depend solely on how the material is accessed. So, for example, an ISP could legally block access to the hypothetical website WatchSimpsonsOnline.com, a website that only illegally streams Simpsons episodes. Because this website is unlawful content, and the Net Neutrality rules state that ISPs can block access to unlawful content.
By contrast, a person could watch these same Simpsons episodes by using BitTorrent to download them, and an ISP could not block access to it. BitTorrent is an application that allows people to share files directly from one computer to another. It has both lawful and unlawful uses. Downloading Simpsons episode is the latter.
But even though the use is unlawful, an ISP could not block access to that use. Because BitTorrent is an application, not content. And the Net Neutrality rules state that an ISP can’t block unlawful applications.
Logically, interpreting the Net Neutrality rules this way can’t be right. But legally, it likely is.
Photo By: "Wordle of Kerry's letter re: Net Neutrality" by believekevin under a Creative Commons attribution 2.0 license
