US Introduces NetNeutrality Legislation

While the CRTC grapples with issues of ISP discrimination against applications, services and users, the US has introduced legislation intended to guarantee Americans will not face such discrimination unless it is justified. Specifically, the proposed Internet Freedom Preservation Act of 2009 will prevent ISPs from degrading bandwidth based on application unless such degradation is justified.

The CRTC has the power now to institute similar protections for Canadians and the Internet. Hopefully it will take some guidance from this new Bill.

The Act, if passed, will recognize that the Internet is a vital part of day to day life for Americans and the “historic policies that embraced competition and openness” on the Internet and have “ensured that telecommunications networks are open to all lawful uses by all users.” The Act will take steps to halt the “erosion of these historic policies” and prevent ISPs from “control[ing] who can and who cannot offer content, services, and applications over the Internet utilizing such networks.”

Highlights include:

(a) Imposing on ISPs a duty to allow users unfettered access to all lawful content, applications or services through the Internet;

(b) Measures preventing ISPs from charging an application, content or service provider special fees to host or prioritize its content;

(c) A requirement that any ISP that adopts practices interfering with (a) or (b) above must justify these as being:

  • In pursuit of a “critically important interest”
  • narrowly tailored to further that interest
  • is the means of furthering that interest that is least restrictive, least discriminatory, and least constricting of consumer choice”

(d) Obligations on the FCC to implement policies that will ensure ISPs build sufficient capacity into their networks to serve all users, and additionally to ensure that private ISP services do not impact on provisioning of public internet services.

Not explicitly addressed in the Act is how unlawful content will be dealt with.

There is no limitation on ISP monitoring activities for unlawful content such as copyright material.

There is also no guarantee of Internet access for Americans accused of copyright infringement or other unlawful online activity. Such protections could potentially fall under a new ISP duty to “offer Internet service to any person upon reasonable request therefor”.