The United States is considering two decisions that will have a far-reaching impact on the future of the internet.
Regulatory agency the Federal Communications Commission (FCC) is deciding whether to roll back its Obama-era decision to back net neutrality, a commitment to keep all traffic equal on the net, rather than prioritise some for faster delivery.
And the US Congress must decide this year whether to renew the controversial Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for sweeping, secretive data gathering – including the content of emails and other communications – by the National Security Agency (NSA).
Both issues will shape how the net operates and have an impact on data traffic in Europe.
They also are blunt reminders of what actually motivates the technology industry to campaign in earnest. Here’s the spoiler: for the majority of tech multinationals, it isn’t about shielding your data from government snooping.
But let's start with net neutrality, in the news this week because on Monday the FCC receiveda filing from the Internet Association, an industry group representing tech notables such as Facebook, Microsoft, Amazon and Google. It took strong issue with the position of internet service providers (ISPs) on net neutrality.
In 2015, the FCC decided to view ISPs as common carriers – like utility companies – disallowing them from creating 'fast lanes' that charge to enable faster delivery of, say, a streamed show from a provider like Netflix compared to a video from a small tech newcomer without Netflix's budget.
Peril
For consumers, that means you won’t be waiting for content to load just because it comes from a smaller company, or because you haven’t opted to pay more to your ISP to get a fast-lane internet service.
The new Trump-era, pro-telecoms FCC chairman Ajit Pai has indicated he wants to dump net neutrality, a decision that would tilt the US internet to become network rather than content centric. While operators have vowed they won't impose traffic tariffs, believe that at your peril; they could any time they wish.
This week, a Trump spokeswoman stated that the White House backed removing net neutrality (so much for the influence of that star-packed presidential tech advisory council).
The FISA Section 702 issue also poses quandaries for tech companies disgruntled with the surreptitious NSA and CIA data snooping disclosed by whistleblower Edward Snowden.
But those secretive programmes such as Prism, which took in metadata – information about internet use and emails – pale against the rights granted by Section 702.
This allows for the gathering of communications content, not just metadata, of foreigners living in the US. But it is widely accepted that the data of some Americans gets caught up in such operations too.
It’s the latter point that makes Section 702 most controversial in the US. But it is the secret targeting of foreigners’ data that makes it a serious issue for the EU.
Challenges
The EU/US Privacy Shield data transfer agreement mandates that European data be treated in the US with the same safeguards granted within the EU – and these would not allow for large-scale, secretive snooping.
Given the loud tech company complaints, and even direct legal challenges, to the US government on programmes like Prism, you’d think the sector would be as vocal in opposing the renewal of Section 702 as they are about the FCC trashing net neutrality.
If US net neutrality goes, the world may get the Balkanised internet the US is always saying it doesn't want
But, as an insightful piece by Reuters noted this week, they are strangely silent, "largely absent from a debate over the renewal of a broad US internet surveillance law, weakening prospects for privacy reforms that would further protect customer data".
Why? Sources in the piece state the tech companies are worried that drawing too much attention to Section 702 could cause the EU or its courts (with several cases related to Privacy Shield in the offing) to reconsider or dump Privacy Shield.
The piece notes the uncertainty around cases such as the Schrems Facebook challenge, heard in the commercial courts here earlier this year. While tech companies want to wait and see how those cases go, privacy advocates are frustrated that their powerful voices are missing in the key Section 702 debate on protecting people’s privacy.
Yet if Section 702 is renewed without change, it’s difficult to see how the EU, or more pertinently, the EU Court of Justice, can consider the US compliant with Privacy Shield, an alarming prospect for the billions of trade dependent on transatlantic data transfers.
And if US net neutrality goes, the world may get the “Balkanised” internet the US is always saying it doesn’t want.
The tech sector needs to be equally vocal on both these issues. That they are not, at such a crucial US legislative juncture, is revealing. The real issue for them is not protecting your data, but ensuring they can keep using it.
