Assignment 3

This assignment was to write an essay talking about some part of IP law which should have been or was under (re)consideration in the new USMCA. I chose to talk about net neutrality.

We were also required to include one of each:

  • <strong>
  • <em>
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  • <blockquote>
  • <dfn>
  • <cite>
  • <table>

2052 words, excluding references.

The USMCA, and how it Fails Net Neurtrality

Matthew Brown
November 14th, 2018

The United States-Mexico-Canada Agreement (USMCA) is a rewrite of NAFTA (the North American Free Trade Agreement), originally enacted on January 1st, 1994 (Wikipedia contributors, 2018). The NAFTA was renegotiated after President Trump promised to do so in his 2016 election campaign. USMCA is basically a modernized refresh of the 25-year old NAFTA, with some extra changes to cars, labour laws, environmental standards, and intellectual property (IP) protections (Kirby, 2018). Most notable are new IP protection laws, which include an extension of copyright protections on intellectual properties from 50 years to 70 year. Interestingly, the controversial topic of net neutrality was not covered by the USMCA (The Governments of The United States of America, The United Mexican States, and Canada, 2018). This is perhaps the biggest downfall of the USMCA.


What is Net Netrality?

As controversial and wide-spread a topic as net neutrality is, understanding what it is a multi-layered problem, with roots in both commerce and networking. By definition, net neutrality is the principle that Internet Service Providers (ISPs) provide customers with unrestricted access to all data on the internet equally, without discrimination (Wikipedia contributors, 2018). But what does this mean?

When data is sent on the internet, it is sent in a series of packets. Each packet will then take the fastest route available to it. These are analogous to cars on a highway. The current way of transmitting data over the internet involves equal treatment of every packet, no matter its destination or origin—just as how the speed limit on the analogous highway does not depend on who is driving the car (Linus Media Group, 2015).

Where is the Concern?

The next question regarding net neutrality is, “why is this such a controversial topic?” The issues arise when ISPs break away from this traditional ideology of equal packet treatment. For example, in 2014, Netflix was forced to enter a deal with Comcast in order to have access to reliable speeds across the United States. This was after a reported 25 percent decrease in speeds for customers accessing Netflix’s services (Shaikh, 2014). Netflix struck up a deal with Comcast to make up for the large amount of Comcast’s bandwidth they were using (Linus Media Group, 2015).

As a consumer, this is a really opaque process - being unable to really know who’s paying what to whom. All you know as a consumer is that you are really paying in the end.

Quote: Craig Aaron, from the consumer advocacy group, 'Free Press'

This situation brings to light the ramifications of letting ISPs do what they please to the speed limits of the internet. Let’s look at Comcast again for an example. Say NBC’s (a subsidiary of Comcast) new, hypothetical, video platform was struggling to gain traction. Comcast realizes that the vast majority of their customers download their video content from Netflix and YouTube. Comcast realizes that the viewership on their platform will increase if the speeds of their competitors become less reliable. In a North America without net neutrality, Comcast would be able to throttle Netflix and YouTube until the services payed an extra fee. This is almost what happened in 2014, although the two, Comcast and Verizon (Gantt, 2014) suspected companies denied any of Netflix’s new “preferential network treatment” (Shaikh, 2014).

Notable net neutrality advocate Tim Wu said that agreements of this type are inevitably bad for consumers (Shaikh, 2014). Deals like these will encourage similar behaviour in the future, which will mean that only the companies with the deepest pockets will be able to afford a “fast-lane” on the internet; online start-ups will all but disappear without a costly web-hosting solution.

On the Term 'Controversial'

Net neutrality is often (including in this essay) called a controversial topic. While this statement is not entirely false, “controversial” is usually associated with the idea of public discourse and general unpleasantry. However, in this case, the general public is nearly unanimously in favour of net neutrality—the controversy comes when it comes to bringing net neutrality into law.

On the topic of net neutrality, the “public discourse” is instead between the public and the government. This is most prevalent in the United States, where the majority of the attention towards net neutrality has been. In the United States, the Federal Communications Commission (FCC) regulates all communications by radio, television, satellite, and cable (Wikipedia contributors, 2018), the latter two of which encompass the internet. The largest part of the fight against the FCC is the public’s attempt to block the FCC’s attempt to repeal net neutrality.

Sadly, the FCC successfully repealed net neutrality rules in June 2018 (Collins, 2018). It’s not hard to see how, since this action, which very much benefits ISPs, allowing them to charge exorbitant rates, received so much support from congressional officials who received sponsorships from ISPs (Sottek & The Center for Responsive Politics, 2017).

vox-nn-graphic Figure 1: This diagram from Vox shows what ISPs can do in the total absence of net netrality laws.

However, Congress and the Supreme Court of the United States (SCOTUS) has seemingly been in favour of keeping the spirit of net neutrality alive.

A few days before the midterm elections, net neutrality supporters got a boost from the Supreme Court of the United States’ (SCOTUS) refusal to hear US Telecom’s appeal regarding the Obama administration’s 2015 net neutrality rules. Several think tanks called the denial […] a win for net neutrality. […]

SCOTUS’ refusal to hear the case means the 2015 rules may still be valid, even though the FCC repealed them last year. Whether or not those 2015 rules still stand will be decided in the D.C. Circuit Court of Appeals, in the Mozilla v. FCC case. And then there’s the United States v. California case, in which the Department of Justice (DOJ) is suing the state of California for overriding federal law and passing its own net neutrality rules.

Quote: Kate Patrick of [InsideSources], November 9th, 2018

In April of 2018, shortly before the FCC repealed, a study was conducted in which participants were presented with two arguments: one for the repeal of net neutrality, and one against its repeal. They were selected online based on probability from a larger sample, which was recruited by telephone and mail. Here’s what he found:

Voter responses in an independently conducted survey, in which people were asked whether they supported the repeal of net neutrality.
Affiliation Voters in Favour Voters Opposed Percent Opposed
National 13 86 86.87%
GOP 17 82 82.83%
Democrats 8 90 91.84%
Independents 14 85 85.86%

It’s incredibly clear that the people did not want this repeal to happen (Scarborough, 2018). This is not a fight between voters of different parties, like usual. Instead, it is an ongoing fight between voters, the government, the FCC, and the large corporations that back the FCC. The optimal situation would be for a bill to eventually be passed to veto the FCC’s new ruling.

In the months ranging between late 2017 and early 2018, the Internet rallied together. They flooded sites like Imgur and Reddit with links to Battle For the Net, which makes it easy to write to Congress and tell a representative one’s thoughts on net neutrality. After this occurred, miraculously, the United States Senate voted 52-47 to block the FCC’s repeal (Finley, 2018)! This was a glorious victory for all Internet users.

All that is left now is for an official law to be passed which would effectively lock the FCC into abiding by net neutrality rules. If only there was an impending international trade deal with the potential to influence laws domestically…

What does the USMCA do for Net Neurtrality?

Sadly, not much. According to Michael Geist, net neutrality provisions “fall short” of what laws are in place in Canada already (2018). The only thing that the new agreement touches on is “Principles on Access to and Use of the Internet for Digital Trade.” The three governments’ new agreement states that consumers have the rights to:

  1. access to services and applications of their choice, subject to reasonable network management;
  2. connect their devices to the internet, providing their devices to not harm the network;
  3. access information on the network management practices of their ISP;

and that’s it (The Governments of The United States of America, The United Mexican States, and Canada 2018). This comes directly from the USMCA.

What Should the USMCA Have Done for Net Neutrality?

Canada already had some rules for net neutrality in place, but, since the United States' unwinding of net neutrality in 2017, Canada has started to push even harder. Earlier this year, Canada passed the M-168 bill, titled simply “net neutrality.” This bill states that the House of Commons of Canada must:

  1. recognize that the internet has thrived due to net neutrality principles of openness transparency, freedom, and innovation;
  2. recognize that Canada has strong net neutrality rules in place that are grounded in the Telecommunications act and enforced by the Canadian Radio-television and Telecommunications Commission (CRTC);
  3. recognize that preserving an open Internet and the free flow of information is vital for the freedom of expression and diversity, education, entrepreneurship, innovation, Canadian democracy, and the future economic and social prosperity of Canadians;
  4. express its firm support for net neutrality and the continued preservation of an open Internet, free from unjust discrimination and interference; and
  5. call on the government to include net neutrality as a guiding principle of the upcoming Telecommunications Act and Broadcasting Act reviews in order to explore opportunities to further enshrine in legislation the principles of neutrality in the provision and carriage of all telecommunications services.
From the M-168 Bill's Text of Motion directly.

What this motion is essentially saying is that, since its passing, the government of Canada now recognizes the impact that net neutrality has on its citizens (House of Commons, 2018). Since Canada has net neutrality rules in place, it’s evident that they’re trying to strengthen their current laws past the point of no return; “We cannot rest on our laurels,” House member John Oliver said to the House of Commons. This would be the best case scenario type of bill to be enacted in the United States, as many other countries around the globe will follow them suit.

Opinion on the Solution

This strengthening of existing net neutrality laws is, in my opinion, what the USCMA should have done for net neutrality. If the USMCA had included provisions which regulate net neutrality, then the United States, Mexico, and Canada would all have had to sit down and evaluate whether or not their existing laws met the criteria to respect net neutrality. If they didn’t, then they’d have to bring theirs up to snuff.

The optimal plan of action would have been the political equivalent of espionage. Mexico, Canada, and the majority of the United States Senate should have worked together to try and write some net neutrality clauses into the agreement. In the senate, 52 agreed to the prospect of net neutrality (including three republicans!), and the ones that didn’t were all nominees who had been sponsored heavily by ISPs (Sottek & The Center for Responsive Politics, 2017). This means that, by working with the side of the Senate who had supported the idea of net neutrality, they could have found a way to make the provision appealing to the head honcho.

Speaking of the head honcho, President Trump is the main hurdle in this plan. Despite his position against lobbyism, Trump is against still against the idea of net neutrality. Knowing him, there’s some convoluted reason that’s too complicated for the smaller folk. The reason he poses a threat is because, even if Mexico, Canada, and the sneaky side of the Senate can get a net neutrality provision onto the USMCA, Trump is the one who must give his final approval. Trump’s main reason against net neutrality is (seemingly) the fact that he, along with FCC chairman Ajit Pai, believe that the Internet is an “interstate information service,” and thus only the federal government should be allowed to regulate it (Lam, 2018). This means that, whatever the provision says would have to include some kind of exceptional clause which would allow the federal government some amount of control, perhaps even more control is some areas than they have now, but still keep the fundamental principals of net neutrality in place.

As California’s State Senator, Scott Wiener, states;

Net neutrality, at its core, is the basic notion that we each get to decide where we go on the internet, as opposed to having that decision made for us by internet service providers. It’s also about ensuring a level playing field for ideas and for businesses to compete.

Scott Wiener, after California passed its own bill which went against the federal repeal of net neutrality.

It's extremely difficult to disagree.

Congratulations, Sri, on managing to assign the worst assignment I have ever worked on. I hated this. Of course, until I got to the HTML part.