I have great respect for EFF. They do great work and have done much to protect the Internet. They led the way on beating back SOPA for instance. I even once helped put together a conference which had a panel which featured John Perry Barlow the founder of the Electronic Frontier Foundation. The discussion was around Internet freedom.
I am a fan.
But EFF has been a supporter of “Net neutrality” while we have had, and continue to have serious reservations. It appears now however that EFF has identified at least one part of the new regs which it is asking the FCC to “rethink.”
We would like to see the FCC “rethink” the whole effort.
Unfortunately, if a recent report from Reuters is correct, the general conduct rule will be anything but clear. The FCC will evaluate “harm” based on consideration of seven factors: impact on competition; impact on innovation; impact on free expression; impact on broadband deployment and investments; whether the actions in question are specific to some applications and not others; whether they comply with industry best standards and practices; and whether they take place without the awareness of the end-user, the Internet subscriber.
There are several problems with this approach. First, it suggests that the FCC believes it has broad authority to pursue any number of practices—hardly the narrow, light-touch approach we need to protect the open Internet. Second, we worry that this rule will be extremely expensive in practice, because anyone wanting to bring a complaint will be hard-pressed to predict whether they will succeed. For example, how will the Commission determine “industry best standards and practices”? As a practical matter, it is likely that only companies that can afford years of litigation to answer these questions will be able to rely on the rule at all. Third, a multi-factor test gives the FCC an awful lot of discretion, potentially giving an unfair advantage to parties with insider influence.