As Congress wrestles with a weak-kneed legislative solution and corporations slowly erode the underlying dynamics of the Internet, the government's network neutrality policies have come under fire from an unlikely vantage: the Electronic Frontier Foundation (EFF), a group known as something like the ACLU of cyberspace. The EFF are, strictly speaking, net neutrality fundamentalists — but they're wary of letting the FCC anywhere near the Internet.
"You don't want Congress legislating technical things. Even if they do understand it, they have their own interests," says Maggie Reardon, a senior writer for the CBS-owned tech site CNET.com. "The technology changes so quickly, what we've seen in the past is that when they legislate things, they miss it — or they're too late." If tech people like Reardon don't think the government should be regulating technology because technology outpaces legislation, the EFF offers a different objection: if the FCC were to obtain jurisdiction over the Internet, as suggested in Franken's bill, it could very well amount to, in the EFF's words, "a power grab that would leave the Internet subject to the regulatory whims of the FCC." At SXSW, one EFF lawyer wondered aloud whether the FCC would someday conduct "indecency" campaigns, like the ones with which the commission has terrorized radio and television, inaugurating "the seven dirty words you can't say on the Internet."
When Comcast appealed the FCC's ruling, the EFF took the extraordinary step of siding with Comcast, arguing that net neutrality might in fact be a "Trojan horse" disguising the FCC's aim of gaining regulatory oversight of the Internet. (Despite the EFF's deeply ambiguous relationship to net neutrality legislation, Republicans are trying to paint the organization as being in the pocket of corporate interests. Recently, The Hill published a dubiously-sourced item suggesting that the EFF is attempting to enshrine net neutrality as the law of the land at the behest of Netflix.)
At this year's SXSWi, EFF legal director Cindy Cohn remained deeply skeptical of the FCC's net neutrality agenda. At one panel, the scholar Evgeny Morozov, who has written a book urging caution about the power of the Internet to fell totalitarian regimes, offered a global argument in favor of net neutrality. If net neutrality fails, he said, then Internet service providers will need to develop methods of what's called deep-packet inspection (DPI). After all, if the guy at the turnstile is going to discriminate against certain packets, he first needs to find out what's in the packets.
The technology created to see what's inside these packets, Morozov argued, would inevitably make its way to despotic nations, where it could be used to invade the privacy of dissidents and hurt the cause of global democratic movements. Seems plausible. But during the Q&A session, Cohn stood up and admonished him to use a different example. Net neutrality, she said, offered no protection against deep-packet inspection — in fact, she suggested, the way the FCC wrote the rules nearly guarantees that some form of DPI will be practiced by law-enforcement groups. The message from the EFF was clear: the future of the Internet is too big a deal to be left to the government.