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Barbara van Schewick: Net neutrality and the future of the internet

An internet policy expert explains how the companies we pay to access the internet want control over what we do online and to charge more for data we are already paying for.
Image of a computer keyboard with the scales of justice.
When the internet is governed by principles of net neutrality, the people who use the internet, get to decide how to use it.| iStock/ArtemSam

While many users remain blissfully unaware, a battle is raging for the future of the internet.

On the one hand are the large phone and cable companies who want to promote their services and to charge more for video and other data. On the other are people, like guest Barbara van Schewick, a lawyer, who champions a more democratic approach known as net neutrality. Net neutrality guarantees unfettered access for all and makes sure that we get to choose what we do online, van Schewick tells host Russ Altman on this episode of Stanford Engineering’s The Future of Everything podcast.

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Russ Altman: This is Stanford Engineering's, The Future of Everything, and I'm your host, Russ Altman. Today, Professor Barbara van Schewick will tell us about net neutrality, what it is and why we should care about it. She'll tell us that it's critical to guarantee innovation on the internet and to protect consumers as they use the internet increasingly. It's The Future of Net Neutrality.

Access to the internet has basically become a utility like water and electricity, but because of the way that the internet is built, there are opportunities for manipulation and basically for profiteering from use of the internet. Net neutrality refers to a set of policies where you prohibit internet service providers from looking at the packages that are being delivered to your device and charging you different amounts. More for one service than for another. More for movies than for sound. This is problematic because it limits innovation. It can entrench existing powerful companies, and it leads to a limited consumer experience at higher costs.

Barbara van Schewick is a Professor of Law at Stanford University and an expert on net neutrality. She's observed how it's gone down in Europe, in the US and in other countries, and she sees worrisome things when there isn't a set of guarantees about net neutrality. This is concerning because in 2017, federal rules about net neutrality were significantly removed. Some states made laws to try to protect their citizens, but currently things are changing.

Barbara, let's start by defining net neutrality and why this is something that people should be thinking about probably more than they are.

Barbara van Schewick: Net neutrality at its heart is a really simple principle. It's about this idea that we the people who use the internet get to decide what we do online. We get to decide what sites we want to visit, what apps to use, what videos to watch. The companies that we pay to get online, Comcast, AT&T, Verizon, T-Mobile, they don't get to interfere with our choices. That means that when the internet is governed by net neutrality, then Comcast or AT&T does not get to block websites that we want to visit, or they don't get to slow down certain services and speed up others, making them more attractive. That's really important because if I can't use the app that I want to use, that sucks for me, and the app or the website can't compete.

Then the final piece that's a core piece of net neutrality is that Comcast or AT&T, they can't charge companies that want to get to us for access to us or for a fast lane to us. That has been really, really critical because it means that everybody has a chance to and be heard online, no matter the color of their skin or the size of their wallet. College students with a little bit of savings get to invent the next Facebook and the next Google and the next Twitter, and that has been really important over the course of the internet.

Russ Altman: Okay, so thank you so much. There is so much there to unpack because I did not even realize. Let's just go right to the most concerning thing that you said. Well, there's many concerning things, but I didn't even realize that my choice about where to go on the internet is in any way hindered. So could you just tell me? Am I in fact, without realizing it, getting manipulated in terms of the sites that I visit and where I go? I thought I had complete freedom in using the internet, but maybe there's less freedom than I realized?

Barbara van Schewick: Yeah, so you are in good company because that's the internet that we know and love. The reason that's what we know is because in the US, basically net neutrality has governed the internet since its inception until 2017. So, we are totally used to being able to go where we want to go and nobody interfering with our choices, but that's not a given. The architecture of the internet, the technology since about the mid-1990s gives the internet service providers, the companies that connect us to the internet, the power to see exactly what we are doing online and then take action based on that. So, as you might know, data travels over the internet in packets. Since the mid-1990s, internet service providers have the ability to look into these data packets and then take actions based on that.

Something that has been really popular, originally when this technology came up, when online telephony came up, phone and cable companies were losing a lot of income because instead of placing expensive long distance calls or international calls, people started doing those online using things like Skype. That was a huge loss in revenue, so many internet service providers, both in the US and around the world started blocking online telephony applications. There was a clear competitive reason for that, so in the US, the FCC right away said, "This is not compatible with how we think the internet should work. We think users should be able to choose what they want to do online."

Interestingly, those were Republican chairmen of the FCC, so net neutrality has never been a partisan issue. Republican chairmen at the FCC, Federal Communications Commission, the agency that governs all of our communications network, so they have acted to protect these principles. In the US then, the first chairman of the Bush administration prohibited normal internet service providers from blocking or slowing down online telephony, so that hasn't happened here. By contrast, Europe didn't have net neutrality protections until 2015, so they saw widespread blocking and discrimination. For example, my husband's grandmother couldn't call us on Skype because her mobile phone provider was blocking online telephony on her mobile plan.

Russ Altman: Wow. Okay, so we've been a little bit lucky that at least up until for now, we've had substantial freedom. Okay, so what is the argument against net neutrality? I mean, first of all, it's a very nice phrase, and it sounds almost like motherhood, like who wouldn't want net neutrality? But I'm sure there are people who are maybe even reasonable people who make arguments that this is not the right way to go. Can you encapsulate their argument? What's their best argument for not having these freedoms?

Barbara van Schewick: Yeah. I want to start by saying that the people that make these kinds of arguments are very in the large minority, so it's basically the phone and cable companies that connect us to the internet. They don't want to be regulated, so they pay some academics to come up with arguments for why there shouldn't be net neutrality, but basically everyone else. Whether it's startups, small businesses, large companies, small companies, nonprofits, musicians, it's really you name it, they all support net neutrality. I struggle giving you a good argument against net neutrality because in fairness, those don't really pass the smell test. When the FCC eliminated net neutrality in 2017 under the Trump administration, they knew there was going to be a problem, so a central part of the strategy was to not actually tell people that they were eliminating net neutrality.

If Chairman Pai, the person who was in charge of the FCC when they eliminated net neutrality, was here, what he would tell us was that he did that to help us get more and better broadband networks. He didn't even make the argument that net neutrality itself was somehow creating a problem for investment in broadband. He basically argued that the legal tools that the FCC had to use to get to net neutrality, that that somehow created problems with investment incentives. But if you look at the data, it shows that during all these times when net neutrality was in effect until basically mid-2018 when the protections ended, American ISPs have invested just as heavily as they could. So, basically the data does not show a negative impact on it.

Russ Altman: Okay, so that's really interesting. I have so many questions, but I guess the one based on what you just said is, okay, since 2017 there's been a change. Are we seeing things that get you worried in terms of trends of big tech, ISPs? I don't know even who to look for, where you're very worried about things that we're starting to see that could erode some of the principles that you articulated about the importance earlier on in the conversation?

Barbara van Schewick: So, we have absolutely started to see problems emerge, so three off the top of my head. You might've noticed the proliferation of unlimited plans. If you go to a website, let's say Verizon, there are like 10 versions of unlimited plans. You look at them and you're like, "Isn't unlimited a thing?" Then you start drilling down, and you notice that, "Oh, this plan actually starts slowing down my traffic after I reach a certain amount of data if there is congestion, or this cheap plan limits the speed for online videos. So, even though I have a 5G plan, when I watch Netflix or YouTube, then it comes in much lower resolution at a slower speed just because the broadband company is using it to make more money."

Russ Altman: I see, so that's not a true technical concern because some people might think, "Oh, that's because they're just trying to be fair in the allocation of resources." Maybe even they would say that, but you're saying that no, no, no. That's because it's a scheme for financial gain basically?

Barbara van Schewick: Yeah, so technically it's a net neutrality violation because they are treating some kind of traffic, video traffic differently from all the other traffic. I'm getting 5G speed when I play an online game or I go to a website, but I get much lower speeds when I watch the video. So now you say, "Well, maybe there is a technical reason for that," which as non-technologists, it's a good question.

The thing is, these kinds of restrictions apply regardless of whether there is congestion in the network or not, so it has nothing to do with managing the network. It's just that if you have a cheap plan, then it's generally always limiting the speed of video. If you have the most expensive plan, you generally get a chance to opt into getting the full speed for your video. Then the plans in the middle often have a combination of either it's always limited in speed, or you can pay an extra 10 bucks to get more speed. So, that tells you it's basically a pure profit-making machine where there is the attempt to price discriminate so that people who want to watch video at full resolution can pay more.

Now, you might say, "Well, who cares? Video is just fun and games, and maybe we are not that bothered if people can't watch video at the full resolution on their cell phones." But the problem here is that there are a lot of different ways in which that does affect people. Think of all these doctors or med students who are sitting online looking at X-rays or kids who are watching a lecture online, and they can't see the formulas because they are too small. I mean, even if I am a baseball fan, and I want to watch the latest game in high resolution, if I pay for it, then it should be my choice what I do with that.

Russ Altman: Yeah, this is very helpful, but I want to let you give me the two other examples because these are pretty good. These are pretty good.

Barbara van Schewick: Yeah, so those were the first two. So the third one is that there is a way of giving applications an advantage that we don't necessarily notice. So, you might have noticed when you look at some of your cell phone plans that they say, "Well, if you watch this particular video service, it doesn't count against your data cap." On cell phone plans, a lot of people still have data caps, like two gigabyte per month, six gigabyte per month, and these have real teeth. AT&T used to say, "Well, if you watch my video services," like HBO Max was a good example, or if you are traveling and you're watching their conventional video service online, then it doesn't eat up your data, but then if you watch Netflix or YouTube, then you burn through your data and quickly you will have used up your data volume for the month. So, as a result, then people do gravitate towards the applications that are exempted from the cap. That's something that Verizon does, AT&T does, and that is a net neutrality problem.

Interestingly, California got a net neutrality law that took effect in 2019 and has been enforceable since March 2021. In response to that, AT&T then stopped engaging in the practice in the whole nation, and Verizon stopped doing it just for California because that's the scope of the net neutrality law, but that's another example where you can see how important video is. We get news and education and fun online, so giving broadband providers the choice to make certain kinds of applications more attractive than others. If I want to watch my local church, the Sunday service online, that should not affect my data any differently than if I watch HBO Max.

Russ Altman: Really helpful, so now you've gotten, everybody now is alerted and activated by this. Let me just step back and say, and forgive me if this is a ridiculous question. Who owns the internet? There are fiber optics. There are wires. You mentioned wireless, but then there's also the backbone folks. Are they all equally involved in these potential abuses, or are there certain sectors that we're more worried about by others? I don't mean to ask a compound question that is unanswerable. So, who are the players here, and do they have ownership interests in the internet?

Barbara van Schewick: Yeah, so as you say, the internet is a network of networks. So whenever we use the internet, there are probably several internet providers involved in that. My internet service provider that connects me to the internet, and most people who have somewhat more money have two, their wireline company, the former cable company and then their wireless company, AT&T, T-Mobile, Verizon are the biggest three that divide up the market for wireless services. These consumer-facing ISPs, they are the ones we are really concerned about.

Then there are big networks in the middle of the internet, like the highways of the internet, and they shuffle all the data between the smaller networks attached to the internet. They don't have an interest in interfering with the data that's flowing through. They just want to get the data to its destination as quickly and efficiently as possible. Then there are often companies that specialize in serving big businesses, or companies like Google and Facebook often run their own network infrastructure, and they too don't really have an interest in messing with the data. But the problem, and that's where at least in the US, the net neutrality protections focus, are the companies that sell internet access to people like you and me, and then medium and small businesses that don't have the market power to protect themselves.

Russ Altman: Very good. Very good. This is The Future of Everything with Russ Altman. More with Barbara van Schewick next.

Welcome back to The Future of Everything. I'm Russ Altman, and I'm speaking with Barbara van Schewick about net neutrality. In the last segment, Barbara had defined net neutrality for us and told us why we might want to be worried about it. In this segment, she'll tell us what's going on at the federal level in the US. She'll tell us why we should care about the power of large internet companies and how this interacts with net neutrality. Finally, she'll tell us how we as individuals can both try to protect our own internet use and how we can participate in the conversation and policymaking at the federal and state levels.

So Barbara, in this segment, I just wanted to start out what's happening federally? You made a reference to some California laws, which affected some federal situations but not all. Where are we at the federal level, and should the federal government get involved or not?

Barbara van Schewick: Yeah, so as I said, the United States has had net neutrality basically nonstop until 2017. Then in 2017, under the Trump administration, the Federal Communications Commission eliminated all net neutrality protections and also gave up all oversight over broadband, so that's been the federal situation. Basically since 2017, people have tried and fought to bring back net neutrality at the federal level. Net neutrality laws actually passed the Senate with bipartisan votes. Then in a different Congress, they passed the House. Unfortunately, they haven't passed both houses at the same time in the same Congress. Democrats have long united behind net neutrality and said, "When we are back in power, we will bring back net neutrality."

You might wonder why hasn't that happened two years into the administration. So it turns out that the FCC has five commissioners, and usually three are a member of the President's party. Two are Republican, so the other party. The fifth commissioner has been nominated. It's a woman named Gigi Sohn, a longtime fighter for consumers and the public interest. A combination of Republicans and heavy and often pretty unfair lobbying by the broadband providers has delayed her confirmation until now. So basically the FCC hasn't been able to do anything because the Senate hasn't confirmed Gigi Sohn. It turns out she has her new confirmation hearing on Valentine's Day next Tuesday, so chances are that she will finally be confirmed. When that happens, that's the point of the time when the FCC is expected to bring back net neutrality because she has been a longtime net neutrality supporter as well.

Russ Altman: But it does raise the question about whether we are just one administration away from backsliding again. So, do you have confidence that even with this three to two majority for a couple of years, there'll be long lasting stability? Or is this fundamentally going to be in an unstable situation for many years to come depending on who's in charge?

Barbara van Schewick: Yeah, so in an ideal world, we would have a net neutrality law, and many countries around the world do have that. The problem with that is that getting a net neutrality law right is actually really tricky because while the principle is simple, there are so many ways in which you can pick winners and losers. If the law doesn't protect against all of them, then you can basically forget about it. So, the big fight in getting a law has always been the ISPs fight for the Swiss cheese version of net neutrality that has so many loopholes that it becomes meaningless, and then try to get this kind of law through a legislature where every single legislator is prone to lobbying.

It worked in California. California has a law that is widely viewed as the model law, but that was highly unusual, was a huge fight. That will be the ideal situation, so without that, we are just left with the FCC doing net neutrality. There my take is it's better to be protected than not. Interestingly, in every iteration of the net neutrality fight, more and more people and policymakers as well have started to understand that net neutrality is really critical. So when the net neutrality law passed the California legislature, one-third of the Republican group in the assembly voted in favor of the law. It did pass the Senate in California with bipartisan votes as well. So, as net neutrality comes back, that doesn't just protect consumers and companies while it's in effect. It also over time just through being in effect and going back to seeing [inaudible 00:22:52].

Russ Altman: Some inertia.

Barbara van Schewick: Yeah, that hopefully it will become more stable.

Russ Altman: Great. I did want to turn. You've written and talked about the role of large internet companies in net neutrality, Google, Facebook, all of our favorites. I hesitate to say that. Do they have a role in this discussion?

Barbara van Schewick: Yeah, so I'm sure you are probably concerned like many of us about the huge power that these platforms, Google, Facebook, Twitter, have acquired over both speech that is relevant to the democracy and the market in general. That's something that really captures our imagination. I agree that there are very real problems that need to be addressed, so does this have anything to do with net neutrality? Not directly in the following sense. Net neutrality applies to the companies that connect us to the internet, but it's actually really critical if you are worried about the power of the large platforms, and here's why.

Basically, net neutrality protects the underdog, the new guy. It means that if Twitter does stuff that we disagree with or stops working randomly on a Wednesday afternoon, then we can go to a Twitter alternative like let's say Mastodon. Those Mastodon data packets aren't stuck in the slow lane, so Mastodon gets to compete on an equal footing. We have seen that over and over. So, we talked about this exempting apps from data caps.

In Europe For a long time, the broadband providers were exempting certain apps from data caps. Almost every broadband provider exempted Facebook and Twitter. Now you can imagine if you use Facebook or Twitter, it doesn't count against your cap, but if you want to use the Twitter alternative or the Facebook alternative, it eats up your data, and that's a real impediment for people who are worried about reaching their cap. So basically, I always say, if you're worried about the power of the large platforms, you need to care about net neutrality, no matter what else we are doing because that allows the next challenger to emerge.

Russ Altman: Yes. No, that makes perfect sense. It sounds like there's already been some precedent for this kind of preferential treatment, so this is not a theoretical entity. This is something that you can point to, at least in that case in Europe. Well, I wanted to spend the last couple of minutes. I think you've gotten us all riled up about net neutrality. Congratulations. What can an individual do both for their own personal protection in terms of protecting their exposure to unfair practices? Also, if they want to get involved in the bigger conversation at the policy level, are there things that the little guy can do?

Barbara van Schewick: Yeah, so if you want to protect yourself, then your possible opportunities are somewhat limited because it really depends on what your broadband provider is doing. So there, to the extent you have a choice, and unfortunately most Americans don't. I live in the middle of Palo Alto, Silicon Valley. I have one choice in providers, but some people do have choice. Usually the smaller providers like Sonic, they believe in net neutrality. They run their network in a neutral way, so you can help yourself by putting your business with them. But in general, net neutrality is basically the story of people power winning over big business. The phone and cable companies have been around, at least the phone companies since the beginning of the 19th Century. They are some of the most powerful companies both in the state legislatures and in DC, and they have fought like hell over the past 20 years to kill net neutrality at every turn.

That's not just lobbying. They fight hard. They fight dirty. When the California law was going through the legislature, they paid at least six million dollars for two lobbyists and then sponsored groups to place robocalls to senior citizens that were basically scaring them that their bill would go up if there was net neutrality. At the federal level, realizing that in 2015 and 2010, so many people had written to the FCC, millions of people and said, "We want net neutrality." The ISPs felt, "Oh, we need to do something about it," so they paid a firm to gin up comments. When those firms weren't able to do that, they basically filed 10 million comments with stolen identities and the names of dead people.

Russ Altman: It sounds like they're using the Russian playbook.

Barbara van Schewick: Yeah, so it is really not a fair fight, but over and over, net neutrality has been helped by people picking up their phone, calling their member of Congress or their member of the California legislature and saying, "This is really important to me. As a business owner, as a normal internet user, as someone who uses the internet for education, please help us bring back net neutrality at the federal level."

Then when the FCC actually starts the process of bringing back net neutrality, there will be a public consultation. In that, hearing from normal people has been really instrumental. So, this is an area where both in 2010 and 2015 and then in California, this combined power of people standing up and saying, "We need this," and being creative about it has helped us overcome the huge and entrenched lobbying power of the large companies. I do hope that we will be able to do that again at the federal level.

Russ Altman: That is fantastic, and it gives all of us something to think about both in terms of our personal choice of ISP provider, when we have choice, and ways that we can actually inform our governmental officials that we care about this issue.

Thanks to Barbara van Schewick. That was The Future of Net Neutrality. You have been listening to The Future of Everything with Russ Altman. You can follow me on Twitter @Rbaltman, and you can follow Stanford Engineering @StanfordEng.