The EFF is concerned about a particular pair of clauses in the current draft rules (PDF) for network neutrality. Those clauses impose no obligation on ISPs to permit “the transfer of unlawful content” or the “unlawful transfer of content.” In other words, ISPs don’t have to be “neutral” about illegal content, and those trafficking in it can’t complain to the FCC is their content is slowed, blocked, throttled, folded, spindled, or mutilated.
If there was any doubt about this, another section of the draft rules make it clear: “Furthermore, we have no intention of protecting unlawful activities in these rules.”
Fred von Lohmann, an EFF copyright lawyer, sees danger here. “That means that so long as your ISP claims that it’s trying to prevent copyright infringement, it’s exempted from the net neutrality principles and can interfere with your ability to access lawful content, use lawful devices, run lawful applications, or access lawful services,” he said last week.
Here’s how the same basic argument was stated at the EFF’s “Deeplinks” blog …
… now that the FCC has formally issued draft net neutrality regulations, they have a huge copyright loophole in them — a loophole that would theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was “reasonable network management” intended to “prevent the unlawful transfer of content.”
If you’re confused after reading those passages, join the crowd. EFF’s leap from unlawful to lawful content — and its seeming opposition to “reasonable network management” practices — is, in a word, baffling.
Apparently even the ability for ISPs to reasonably manage their network — based on a clause in the draft rules — doesn’t go far enough in the view of the … EFF.
Unfortunately if groups like the [EFF] got their way with network neutrality regulations, freedom would be the last thing that many ISP users would experience.
Reasonable network management serves the purpose of allowing all users to have fair access to the network resources. Without it, a small minority of users would dominate the use of shared resources, degrading the Internet experience of nearly all network users.