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Net neutrality is dying with a whimper

You may have barely noticed the fight to save net neutrality — but you'll definitely notice when it's gone.

FCC Chairman Ajit Pai Speaks At American Enterprise Institute Photo by Chip Somodevilla/Getty Images

Following an internet-wide day of protest on July 12, many activists are claiming a victory in the fight to preserve net neutrality against a proposed complete regulatory repeal by the Federal Communications Commission. But was it really a victory? Cynics abound — and the likelihood that the protest made a real impact is low.

The protest, which boasted the participation of high-profile sites like Netflix and Reddit, was a success according to stats from the activist groups that organized it: According to Fight for the Future, the Day of Action for Net Neutrality reportedly reached 10 million people, inspired between 1.6 million and 2.1 million new comments on the FCC’s website, and generated 3.5 million emails to members of Congress urging them to enact legislation on the issue.

Since the FCC first announced its plans to roll back existing net neutrality regulations in April, more than 8.2 million comments on the plans have been submitted to the agency (the first window for public comment remained open through Monday, July 17, and a second round of public comment will now remain open through August 16). Though many of those comments have been disputed by developers and data scientists as the work of spambots impersonating real citizens, with as many as 58,000 of the comments repeating the same anti-Obama, anti-net neutrality text, it’s clear that the continuing work of net neutrality activists, which now includes the Day of Action protest, has driven a high proportion of the (legitimate) response.

But not everyone is impressed, and possibly for good reason. In the aftermath of the protest and what some have written off as only mild, non-visible participation from its most prominent participants, many people have expressed skepticism over whether it effectively conveyed what’s at stake — or the tremendous effect that a rollback of net neutrality regulations could have on the future of the web — if the FCC’s plans come to pass.

Those involved in the Day of Action talked a big talk — but the protest was ultimately barely visible

Prior to the July 12 protest, news outlets were warning their readers to “prepare to be assaulted” by the extent of the protest, after major players like Google, Facebook, Netflix, and Amazon announced their participation in the Day of Action.

But as many of those same news outlets have since pointed out, the aforementioned major players barely did anything to promote the protest where it counted: on their most visible and highly trafficked homepages and within their mobile apps.

“If you blinked, you missed yesterday’s net neutrality protest,” Recode declared, while Politico hedged that it “may have flown under some radars.”

The Verge’s rundown of how different websites contributed to the Day of Action revealed that many of the most prominent participants had done little more than post out-of-the-way statements about net neutrality on their blogs or add small banners to their homepages that could easily be ignored.

The Ringer was especially blunt, taking participants to task for being “afraid to disrupt the user experience to incite political action.” Writer Victor Luckerson recalled bolder, more attention-getting net neutrality protests of the past, during which entire websites went dark or deliberately interfered with their own pages to make points about slow load times and the impact lack of net neutrality could have on a user’s experience of the internet.

Protests in support of net neutrality have occurred almost semiannually since 2010, with major events taking place in 2012 and 2014 to comment on pending regulations. The 2012 net neutrality blackout, which successfully campaigned against the restrictive Stop Online Piracy Act (SOPA), was particularly notable because major websites like Wikipedia, Reddit, Tumblr, and Google went dark or displayed prominent site interruptions for the full day. These stances were dramatic — especially compared with the mild, unintrusive efforts made during the July 12 protest.

Though some sites did turn to creative alternative ways of illustrating the point — as seen in the below tweet from Netflix — Luckerson argued that such passive, easy-to-scroll-past commentary is disappointing.

“Such timidity is unfortunate right now,” he wrote, “given that net neutrality is already struggling to compete for attention with health care, Russian election interference, and a variety of other controversies in Washington”:

Perhaps tech giants don’t want to be accused of “playing politics” in these divisive times by passionately speaking out against a Trump appointee’s plan. But my hunch is that many of them have simply outgrown the need for net neutrality’s protections, so they’re comfortable paying lip service to the concept without getting particularly invested in the fight.

Luckerson also pointed to a statement that Netflix CEO Reed Hastings made in May in which he admitted that Netflix no longer needed to worry about net neutrality rules. That is, the company believes it doesn’t have to worry about losing a critical mass of subscribers due to the inability of those lost subscribers to afford faster internet speeds — a hindrance that would almost certainly be imposed upon millions of people by their ISPs if net neutrality regulations are gutted under the FCC’s proposed plans.

Luckerson posited that Hastings’s statement probably reflects the reigning view among Silicon Valley’s major players toward the issue of net neutrality in general: that they don’t want to waste resources lobbying a government that’s determined to roll back existing regulations, especially because they aren’t too concerned that their users won’t simply adjust to any resulting setbacks.

However, anyone who doesn’t view net neutrality as a big deal is failing to consider just how unequal bandwidth access in the US already is, and how crucial a role steady internet access plays in bridging socioeconomic gaps. Scaling back net neutrality regulations may not be as immediately visible a disenfranchisement of poor and marginalized citizens as, say, repealing the Affordable Care Act, but the potential societal effects are real. “It’s ironic that the companies creating the tools to amplify political voices aren’t doing more to ensure those voices will be protected in the future,” Luckerson wrote.

Partisan politics and ISP resistance mean net neutrality has a hard fight ahead of it

Alongside cynicism about Silicon Valley’s investment in protecting net neutrality is cynicism about the FCC’s response to the Day of Action protest. “Today’s net neutrality protest won’t matter to the FCC,” Axios reported, noting that FCC Chair Ajit Pai has been unflinching in his desire to repeal current net neutrality rules, and with partisan support in favor of doing so, protests from the tech industry aren’t likely to do much good.

Still, some momentum is building both among lawmaking Republicans and tech insiders for the idea of congressional legislation that would enshrine net neutrality into law. The FCC regulation that’s currently under threat protects net neutrality through a decades-old regulatory clause known as Title II, which classifies ISPs as telecommunications companies, subject to telecommunication company regulation. If Pai repeals Title II classification for ISPs, they will essentially be unregulated. The potential upside of passing a net neutrality law through Congress instead of relying on FCC regulation is that it could use specific modernized language that explicitly safeguards net neutrality as a governing principle, and would be harder to undo.

Such an approach is not without major drawbacks. Sen. Al Franken recently argued that “any legislation that we would get in the current Congress would be weaker than the Open Internet order that's in effect now.” And the main reason for this is that major internet service providers like Comcast, Verizon, and AT&T could easily lobby Congress to ensure that any new net neutrality laws are as favorable to their corporate goals as possible, effectively killing the “neutrality” component.

ISPs’ to meddle in the fight for net neutrality should not be ignored. In fact, two ISPs actually pretended to join the July 12 protest in order to actively undermine it. AT&T received ridicule for its “attempt to hijack” the protest by claiming to join it, which it did by posting a deceptive and confusing page on its website that subtly argued against the principles of net neutrality and urged visitors to join AT&T in arguing for Congress, not the FCC, to legislate the issue — an outcome that could only serve to benefit AT&T, not the open internet.

Comcast, meanwhile, stated that it “supports net neutrality” with a lengthy blog post in which it claimed net neutrality activists are utilizing “scare tactics” and trying to “create hysteria.” Comcast argued that “Title II regulation and net neutrality are not the same thing.” But Title II regulation is the regulation under which net neutrality is currently enforced, and the only existing way for net neutrality to legally be enforced, so an argument that they aren’t the same thing seems purposely misleading.

In reality, undoing net neutrality regulations opens the door to serious exploitation of consumers by ISPs, which would essentially be able to run the internet side of their businesses with little to no government oversight or accountability. And the changes would come at a time when a major repeal of internet privacy laws has already emboldened ISPs to sell their customers’ internet history, browsing data, and personal information. If anything, there isn’t nearly enough alarm over the proposed changes at stake — which is why cynics have been so disappointed with the lack of visible agitation surrounding the issue.

Can anything be done to save net neutrality?

Under the Trump administration, chances of salvaging net neutrality are slim — though Franken did speculate that the issue could end up in federal court if/when the FCC completes its proposed repeal of existing regulations.

Still, activists are optimistic. Elliot Harmon, an activist with the Electronic Frontiers Foundation, which participated in the July 12 Day of Action, told me the overall results of the protest were a net gain:

“In many ways, this day of action was bigger than the Internet Slowdown Day in 2014,” he said. “It generated more comments to the FCC, and it brought in a more inclusive and diverse range of voices. This wasn't a few companies; it was all corners of the internet coming together.”

He urged net neutrality supporters not to give up, stating that “this is a marathon, not a sprint.”

However, while noting that it’s important for people to keep contacting their congressional representatives about protecting net neutrality, he also acknowledged that the ball is in the FCC’s court: “What we do next will depend on the FCC's decision,” he said.

But since Pai seems determined to gut the FCC’s current regulations no matter how many members of the public make their voices heard in favor of net neutrality, the next step might be to start adjusting to a slower, weaker, more unequal internet.