Since that blogpost, the European Parliament Plenary narrowly voted on 5th July to reject the proposal tabled by the Legal Affairs (JURI) Committee and a mandate to negotiate, and now the proposed Directive will undergo a full discussion and rescheduled vote in the next Plenary meeting on 12th September. This was a fantastic outcome, thanks in large part to a groundswell of support from those who value the fundamental right of freedom of expression online. It has presented a window of opportunity to correct the deeply flawed approach to copyright reform in Europe and find a more balanced solution. Campaigning has continued throughout the summer period and MEPs are now set to vote again on a proposal that has heavy consequences for the open Internet if passed in its current form.

• Widespread disruption to the webThe Article 13 proposal has an incredibly broad reach in terms of who can be impacted. We face a scenario in which not only the large content sharing platforms, such as Facebook and YouTube, but other businesses involved in storing and giving access to material uploaded by users - music, pictures and videos - will be forced to try and conclude licensing agreements with rights-holders, and could have to resort to content surveillance and removal activities to protect their business. This could include blogging and discussion platforms. This could also potentially impact Cloudflare and its ability to innovate in the European market with new services that offer a storage component.

• Your freedoms and rightsThe proposal threatens the freedom of expression and information and upsets the balance of rights that has been so important to Internet innovation. Creators, users and independent businesses alike - any content that is uploaded may be deleted without your consent by Internet providers anxious not to incur legal liability. The right to freedom to access information and the right to conduct a business are also now at risk.

• User experienceAs the Internet has improved in terms of speed and delivery, the visual Internet buffering experience of yore is now a rarity. Add in a new monitoring and filtering function however, tracking the vast range of content that is uploaded by users against databases of flagged copyright content, and we now have a new layer of complexity which could have a negative impact on user experience. This could range from delays in downloading to vast and confusing blank spaces on the web.

• DiversityStart-ups and smaller businesses will  be heavily burdened by the new obligations, meaning that the internet giants will gain an even deeper foothold in the marketplace. Smaller players will not have the presence, ability or market power to engage in appropriate licensing agreement discussions with the range of rights-holders that exists. Furthermore, in some cases, these arrangements do not even make practical sense.  And so in every sense, diversity in Europe will be diminished, both in terms of providers who can afford to operate in such a market and also the availability of culturally diverse, rich content. Europe will simply lose out, as smaller companies look to other geographic markets and users face restricted choice.

Image courtesy of EDRi

There is still some time left to share your views with MEPs who have a key role in this debate and with those who may have hesitated over the July vote. We particularly appeal to all our European users and readers to contact their MEPs and pass the message that the Article 13 proposal is flawed, upload filters and online monitoring are not the way forward, and fundamental rights must be preserved. You can  check the voting statistics for MEPs in different European countries and contact your local representatives using this website. You can also call your MEP, locating their details using this tool.

As an ardent supporter of the open Internet, Cloudflare has been deeply troubled by the Article 13 proposal and some of the discussions that have taken place. We hope you will join us, and many others, in this important campaign and help to #SaveYourInternet.

TL;DR - Net neutrality is under attack. There's an app on Cloudflare Apps that empowers site owners to host a popup on their sites, encouraging users to contact their congresspeople to fight back. Everyone should be doing this right now, before the December 14th FCC vote.

Use Battle for the Net to Call your Congressperson »

Attend Cloudflare's Save the Internet! Net Neutrality Call-A-Thon »

The Federal Communications Commission (FCC) has scheduled a vote to terminate its net neutrality rules this Thursday, December 14th. Unfortunately, the expectation is that the FCC will vote to repeal its net neutrality rules. Read about this on Business Insider, Bloomberg, or TechCrunch.

Net neutrality is the principle that networks should not discriminate against content that passes through them. The FCC’s net neutrality rules protect the Internet, users, and companies from abusive behavior by the largest Internet Service Providers (ISPs). Without net neutrality rules in place, ISPs may be able to legally create a "pay to play" system and charge websites to provide content to their customers more quickly. This will create a disadvantage for startups, bloggers, and everyone else who cannot afford to pay fees for their websites to offer faster service.

Cloudflare founders and employees strongly believe in the principle of network neutrality. Cloudflare co-founder and COO Michelle Zatlyn, sat on the FCC's Open Internet Advisory Committee, which guided the FCC to vote to preserve net neutrality in 2015. Cloudflare co-founder and CEO Matthew Prince and other employees have written four blog posts 1, 2, 3, 4, describing Cloudflare’s views on net neutrality.

I am extremely disappointed that net neutrality is under threat. I am extremely grateful that I work at a company made of people who are fighting for it and I'm hopeful our community (you) can make a difference.

Read, watch, listen, and learn much more about net neutrality and its importance below.

For now, here is my favorite video explanation of net neutrality, by John Oliver, host of Last Week Tonight on HBO.

---------------- ### Battle for the Net

Because net neutrality is under attack, the Battle for the Net app is once again live on Cloudflare Apps. The app can be used to “Break the Internet” for the two days before the FCC’s vote, as part of an internet-wide protest.

This app allows site owners to add a pop-up to their sites that will directly connect users to their respective US congresspeople so they may articulate their stance for net neutrality.

On a site that uses the Battle for the Net app, users are greeted with a pop-up which briefly explains that net neutrality is under attack, displays a countdown to the day and time (Thursday, December 14th) the FCC will vote to terminate the net neutrality rules, and provides an entry field for the user to enter their phone number.

When a user enters their phone number and clicks the "CALL CONGRESS" button, they'll immediately receive an automated phone call from Battle for the Net. The recording instructs the user to enter their zip code, so they'll be connected to their specific congressperson.

Users may select the option to become a daily caller by pressing 1. This will initiate a process where users will receive calls at the same time each day, connecting them to their congresspeople.

To make one-time calls, users can just stay on the line. The recording delivers a recommended script to inform the congressperson on the line that the user supports net neutrality and wants the congressperson to contact FCC Chairman Pai and oppose the repeal.

Here's the written script:

Be polite, introduce yourself, and say: “I support the existing Title II net neutrality rules and I would like you to publicly oppose the FCC’s plan to repeal them.”

When done with the first call, users may press * to be directed to another call to their next congressperson.

I live in San Francisco, so my first call was directed to Representative Nancy Pelosi. My second call was directed to Senator Dianne Feinstein.

On Cloudflare Apps, you can preview Battle for the Net and see how it'd look on a site. Cloudflare users can install the app on their site with the click of a button. You can see how a user can enter a phone number into the pop-up. Users are given share links on their screens, so they may share the action they take on Facebook or Twitter. They are also given the option to donate to the cause.

Though the pop-up covers a significant portion of the page, it can be easily discarded by clicking the "x" in the upper right corner.

Use Battle for the Net to Call your Congressperson »

Learn more about Battle for the Net and the Break the Internet protest on their site.

Join us at Cloudflare (or remotely) in the fight for net neutrality

The event will kick off with an introduction to net neutrality and why we think it's important. We'll preview the Battle for the Net app and use it to find our local representatives and call and tweet at them, letting them know we want them to take a stand for net neutrality.

Pizza will be provided for callers. Bring your own cell phone.

Tuesday, December 12th: 12:00pm-1:00pm

Cloudflare San Francisco101 Townsend StreetSan Francisco, CA 94107

Register Here »

If you can't make it on-site, join the effort by calling through the app, remotely.

Key moments for Net Neutrality

• The 1990's: The issue of net neutrality has been a discussion since the early days of the Internet in the 1990s, between users and service providers. There were no clear legal protections requiring net neutrality until 2015.

• 2015: The FCC classified broadband as a Title II communication service with providers being "common carriers", not "information providers", under former Chairman Tom Wheeler. Adoption of this notion would reclassify Internet service from one of information to one of telecommunications and ensure net neutrality. Wheeler stated, "This is no more a plan to regulate the Internet than the First Amendment is a plan to regulate free speech. They both stand for the same concept." Read more about the 2015 rules in this Newsweek article.

• January, 2017: Ajit Pai was named the new Chairman of the FCC by President Trump. Pai opposed the 2015 Open Internet Order which protects and promotes the open Internet and stated the he planned to modernize FCC policies. Read about Pai's October Senate confirmation in this TechCrunch article.

• April/May, 2017: Pai proposed Net neutrality rules be rolled back and service providers instead should voluntarily commit to net neutrality principles. On May 18, 2017 the FCC voted to move forward with the proposal. Over 1,000 companies and investors signed an open letter, opposing the proposal and millions of public pro net neutrality comments were submitted on the FCC website. Read more about the vote in this CNN article.

• June/July, 2017: The Battle for the Net coalition created a Day of Action during which over 50,000 websites participated in the largest online protest in history. Internet companies, CEOs, politicians, and users spoke out in support of net neutrality.

• Now: It's time to make a statement again. Use Battle for the Net to contact your congressperson and find other ways to make a statement to protect net neutrality.

Here are five more great videos, explaining net neutrality and why it's important.

1. Video created by Elisa Solinas, Senior Creative at Vimeo, explaining why net neutrality is so important for video makers, viewers, and all-around Internet video lovers.

2. Video of Julia Reda, a Member of the European (EU) Parliament from Germany, discussing the importance of net neutrality and new EU legislation designed to reinforce the principle.

3. Video of Bernie Sanders, US Senator for Vermont, explaining how it's imperative that we have net neutrality.

4. Video of FCC Commissioner Mignon Clyburn speaking about how "net neutrality is doomed if we're silent."

5. Video of John Oliver, host of Last Week Tonight on HBO, giving a second commentary on net neutrality.

The argument against net neutrality

Watch or read an interview with Ajit Pai by PBS about why he wants to do away with net neutrality.

• The FCC is a 5-member Commission, made up of three Republicans, including Pai, and two Democrats, including Clyburn.

• Its purpose is to regulate interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia and U.S. territories.

• It's an independent agency of the US government, overseen by Congress. The Commission is responsible for implementing and enforcing America’s communications law and regulations. It has over 1,700 employees and a budget of almost $400 Million.

Read more on the FCC website.

Read more on the FCC Wikipedia page.

I was encouraged, for a moment, when I read an article, claiming that the FCC would not be voting on the repeal of net neutrality in November. But now net neutrality is under attack again, just one month later. We need to fight for it. Join the fight.

Call your Congressperson »

Attend Cloudflare's Save the Internet! Net Neutrality Call-A-Thon »

Screenshot of App Page for FFTF’s Battle for the Net app. Source code for this app.

When our co-founders launched Cloudflare in 2011, it was with a firm belief that the Internet is a place where all voices should be heard. The ability for either an ISP or government to censor the Internet based on their opinions or a profit motive rather than law could pose a huge threat to free speech on the Internet.

Cloudflare is a staunch supporter of Net Neutrality and the work done by Fight for the Future, which shows how effective Internet civic campaigns can be.

To get a heads up on Fight for the Future campaigns in the future, sign up for their mailing list.

See source code for FFTF’s Battle for the Net Cloudflare App on Github.

To make your own app, see Cloudflare Apps docs.

In May, the FCC took a first step toward revoking bright-line rules it put in place in 2015 to require ISPs to treat all web content equally. The FCC is seeking public comment on its proposal to eliminate the legal underpinning of the 2015 rules, revoking the FCC's authority to implement and enforce net neutrality protections. Public comments are also requested on whether any rules are needed to prevent ISPs from blocking or throttling web traffic, or creating “fast lanes” for some internet traffic.

To raise awareness about the FCC's efforts, July 12th will be “Internet-Wide Day of Action to save Net Neutrality.” Led by the group Battle for the Net, participating websites will show the world what the web would look like without net neutrality by displaying an alert on their homepage. Website users will be encouraged to contact Congress and the FCC in support of net neutrality.

We wanted to make sure our users had an opportunity to participate in this protest. If you install the Battle For The Net App, your visitors will see one of four alert modals — like the “spinning wheel of death” — and have an opportunity to submit a comment to the FCC or a letter to Congress in support of net neutrality. You can preview the app live on your site, even if you don’t use Cloudflare yet.

To participate, install the Battle For The Net App. The app will appear for your site's visitors on July 12th, the Day of Action for Net Neutrality.

Cloudflare is disappointed with the Senate’s actions, as we feel strongly that consumer privacy rights need to be at the forefront of discussions around how personal information is treated. The new regulations would have steered the U.S. closer to the privacy standards enjoyed by citizens in many other developed countries, rather than away from such rights.

Defaulting to an “opt-in” rather than “opt-out” standard would provide consumers with greater controls over how, when, and with whom their personal information is used and shared. We believe that individuals should have the last say on what is done with their personal information, rather than corporations.

Regardless of whether Washington ultimately decides to approve rolling back these regulations, Cloudflare will continue to prioritize the sensitivity and privacy of the data we handle from and on behalf of our customers, and to comply with applicable privacy regulations worldwide.

JUNE 18, 2015 | BY MITCH STOLTZ

This month, CloudFlare and EFF pushed back against major music labels’ latest strategy to force Internet infrastructure companies like CloudFlare to become trademark and copyright enforcers, by challenging a broad court order that the labels obtained in secret. Unfortunately, the court denied CloudFlare’s challenge and ruled that the secretly-obtained order applied to CloudFlare. This decision, and the strategy that led to it, present a serious problem for Internet infrastructure companies of all sorts, and for Internet users, because they lay out a blueprint for quick, easy, potentially long-lasting censorship of expressive websites with little or no court review. The fight’s not over for CloudFlare, though. Yesterday, CloudFlare filed a motion with the federal court in Manhattan, asking Judge Alison J. Nathan to modify the order and put the responsibility of identifying infringing domain names back on the music labels.

We’ve reported recently about major entertainment companies’ quest to make websites disappear from the Internet at their say-so. The Internet blocklist bills SOPA and PIPA were part of that strategy, along with the Department of Homeland Security’s project of seizing websites based on unverified accusations of copyright infringement by entertainment companies. Entertainment distributors are also lobbying ICANN, the nonprofit organization that oversees the Internet’s domain name system, to gain the power to censor and de-anonymize Internet users without court review. (Fortunately, it looks like ICANN is pushing back)

The order that CloudFlare received in May is an example of another facet of the site-blocking strategy. It works like this: entertainment companies file a lawsuit in federal court against the (possibly anonymous) owners of a website they want to make disappear. The website owners typically don’t show up in court to defend themselves, so the court issues an order to the website to stop infringing some copyright or trademark. (Often this order is initially drafted by the entertainment companies.) The entertainment companies then send a copy of the order to service providers like domain name registrars, Web hosting providers, ISPs, and content delivery networks like CloudFlare, and demand that the service providers block the targeted website or domain name, as well as other websites and domains that the entertainment companies want gone.

This month’s case involved a website that called itself Grooveshark, and appeared to be a clone of the site by that name that shut down in April after settling a copyright lawsuit to the record labels. That settlement left the labels in control of Grooveshark’s trademarks, which they proceeded to use as a weapon against the copycat site. The labels applied to the U.S. District Court for the Southern District of New York for a secret order to shut down the site, which was then located at grooveshark.io. Judge Deborah A. Batts granted the order in secret. The order covered the site’s anonymous owners, and anyone “in active concert or participation” with them. The order also listed “domain name registrars . . . and Internet service providers” among those who have to comply with it. The labels sent a copy of the order to several companies, including CloudFlare.

When a federal court issues an order (called an injunction), court rules say it can apply to a party in the case or to anyone in “active concert or participation” with them. But the courts haven’t clarified what “active concert or participation” means in the Internet context. Communication over the Internet can involve dozens of service and infrastructure providers, from hosts to domain name registrars to ISPs, backbone providers, network exchanges, and CDN services. Under a broad reading, even an electric utility or a landlord that leases space for equipment could conceivably be in “active concert or participation” with a website.

CloudFlare decided to take a stand against the overbroad order, asking the court to clarify that the order did not apply to CloudFlare. As a CDN and reverse proxy service, CloudFlare makes websites faster and more secure, but can’t suspend a site’s domain name or render it unreachable. So even if making Internet intermediaries responsible for enforcing copyright and trademark laws was a good idea (it’s not), CloudFlare is not the right one to do it. And even if the mysterious owners of the “new Grooveshark” site are bad actors, CloudFlare wanted to protect its law-abiding customers by insisting on a correct and thorough court process before cutting off any customer.

Unfortunately, the court concluded that the initial order applied to CloudFlare. And even worse, the court said that CloudFlare has to block every user with a domain name that contains “grooveshark,” no matter who owns the site. That means that CloudFlare, or any Internet infrastructure company that gets served with a copy of the court order, would have to filter and ban sites called “groovesharknews,” “grooveshark-commentary,” or “grooveshark-sucks,” no matter who runs them or what they contain.

That’s a big deal. Laws like Section 512 of the Digital Millennium Copyright Act, Section 230 of the Communications Decency Act, and court decisions on trademark law, protect Internet intermediaries from legal responsibility for the actions of their users, including the responsibility to proactively block or filter users. That protection has been vital to the growth of the Internet as a medium for communication, innovation, and learning. Those laws help keep Internet companies and entertainment conglomerates from becoming the gatekeepers of speech with the power to decide what we can and can’t communicate. The record labels didn’t accuse CloudFlare of any copyright or trademark violation—nor could they, in part because of laws like the DMCA. Yet the order against CloudFlare might force CloudFlare, and other service providers, to filter its service for terms like “grooveshark”—and other words that might appear in future court orders. Service providers like CloudFlare could find themselves in the uncomfortable position of having to figure out who’s allowed to use “grooveshark” and who isn’t—or of having to block them all. Turning Internet companies into enforcers of who can say what on the Internet is exactly what laws like the DMCA were meant to avoid.

And CloudFlare is far from the only Internet company to be hit with an order like this. Many, including some domain name registrars, simply comply with overbroad court orders, asking no questions, instead of sticking up for their users.

Yesterday, CloudFlare took a new step. Represented by EFF and Goodwin Procter, CloudFlare asked the court to change the order so that in the future, CloudFlare will only be responsible for taking down user accounts that use variations on “grooveshark” if the music labels notify CloudFlare that a site is infringing. That change will put the job of enforcing trademarks back on the trademark holders, and preserve the balance created by laws like the DMCA. CloudFlare supports smart, effective, and careful trademark enforcement and wants to see it done right – not through broad orders that can impact free speech.

Other Internet companies that care about their users, and would rather not become unwilling trademark and copyright enforcers and arbiters of speech, should follow CloudFlare’s lead and push back against orders like this one.

Today the United States Federal Communications Commission (FCC) voted to extend the rules that previously regulated the telephone industry to now regulate Internet Service Providers (ISPs). The Commission did this in order to preserve the principle of network neutrality. Broadly stated, this principle is that networks should not discriminate against content that passes through them.

At CloudFlare, we are strong proponents of network neutrality. My co-founder, Michelle Zatlyn, sat on the FCC's Open Internet Advisory Committee. The work of that committee played a role in guiding today's vote. So there is a large part of us that is celebrating today.

At the same time, I have deep concerns that proponents of a free and open Internet may look back on today not as a great victory, but as the first step in what may turn out to be a devastating loss. The Internet has largely been governed from the bottom up by technologists seeking rough consensus and running code. Today's action by the FCC may mark the beginning of a new era where the Internet is regulated by lawyers from the top down. As a technologist and recovering lawyer, that worries me.

If you think about it, it's a miracle that the Internet has been as neutral as it has for as long as it has. Throughout history, owners of networks — be they shipping channels, country clubs, Ivy League colleges, banks, roads, or actual telecommunications networks — have profited by charging tolls to access those networks. The Internet has, for the most part, resisted this. There is no "long distance" charge on the Internet. You don't pay more to access one website or use one mobile app than another. Bytes, for the most part, are bytes regardless of where they come from or go to.

That is not to say there is no risk. Networks tend to be natural monopolies. Consolidation of what are known as "terminating access providers" — companies like Comcast that act as ISPs for customers — creates a choke point for the Internet. These companies are in a position to start charging not only their users but also content providers. But, to date, the number of instances of actual abuse by ISPs in the United States has been remarkably low.

When proponents of government regulation of the Internet want to point to abuse their poster child is often Netflix. The company's fights with Comcast and other ISPs are well documented. There's little doubt that Netflix's performance suffered on some ISPs where the infrastructure serving the company's movie-streaming bytes became overloaded.

Lawyers have a saying: hard cases make bad law. Netflix is a hard case. According to the company, during primetime viewing they are responsible for more than 30% of all U.S. Internet bandwidth use. Remember that the company only launched streaming video seven years ago, and it only really took off about four years ago. In other words, the company has increased U.S. Internet use by a third — on its own — in an extremely short amount of time.

As a consumer, it's easy to think of the Internet as an infinite resource, but real atoms carry all those bytes and they have finite capacities. Who pays the cost of delivering that additional 30% of traffic is not straight forward. While it's tempting to say that an ISP like Comcast should pay, is it fair, then, for them to spread that cost over all Comcast subscribers regardless of whether they are Netflix subscribers?

Again, because of their remarkable scale and the rate of growth, Netflix makes for an extremely hard case and therefore a tricky poster child. In the end, assuming the whisper numbers are correct on the terms, the commercial arrangement worked out between ISPs and Netflix seems from my perspective to have been a pretty reasonable outcome. The market worked here when giants battled. However, I worry about the non-giants who so far haven't been poster children.

The good news is that beyond the exceptional case of Netflix, other abuses of the principle of network neutrality have proven more difficult to find. By in large, today on the Internet, bytes are bytes. CloudFlare delivers a large number of bytes and, so far, we have never been "shaken down" by an ISP in order reach their customers. Quite the opposite, as we've grown our cost of delivering a byte has rapidly decreased. In the last 12 months, our global blended average per byte cost has fallen by half, even as we've expanded in expensive markets like Australia, Latin America, and Africa.

That's not to say I don't worry. I worry a lot. Comcast, or other large ISPs, could likely extract tolls from a company like ours if they threatened to rate limit or outright block their customers from reaching our network. Legally, before today's FCC vote, there was likely no rule that stopped them. And yet, to date, in spite of their market power, the bottoms-up, normative approach to Internet governance has largely kept ISPs in check and kept the network neutral. This arrangement feels fragile and likely won't last forever, but up until now, I think this is rightly described as the Internet miracle.

There is always tension between law and technology. Technology moves fast. Law moves slow. Technology is nimble. Law is a lumbering beast. I like to joke that my job as a lawyer and a programmer were the same: in both cases I was writing code, just as a lawyer it took 10 years and an expensive legal trial for the compiler to let me know if I had a bug.

Bad things happen when lawyers and politicians step in too early to regulate technology markets that are still developing. In this case, the FCC not only may be stepping in too early — before we know what the actual, not just theoretical, problems they aim to regulate will be — but they were forced by previous court decisions and political realities to apply the rules written for traditional telephone networks rather than craft a new regulation specific to the unique nature of the Internet.

The exact rules the FCC just voted for are not yet public, and we don't know exactly what they will contain. What we do know, however, is that they will stem from Title II of the Federal Telecommunications Act. The problem is that Telecommunications Act comes with 80 years of baggage. The Act, which was originally passed in 1934 under the Franklin D. Roosevelt administration, has been interpreted by courts and rewritten by Congress a multitude of times. For the programmers reading this, what the FCC is doing is like trying to compile Node.js on MS-DOS. Even if they get it to work, inevitably there will be unintended consequences.

There is a philosophical debate in the law about the role of "rules" versus "standards." For quite some time, in the United States, most roads have had a defined speed limit: say 55 miles per hour. That's a rule. Some stretches of road in Montana were different. There the speed limit was listed as "reasonable and prudent" speed. In some cases, say during a sunny day on a straight, clear road, what is "reasonable and prudent" may be a lot faster than 55 mph. On the other hand, if it's snowing, 55 mph may be far faster than "reasonable and prudent." Montana, in other words, set a standard, not a rule, for their speed limit.

Generally, when conditions are well defined, and the optimal outcome is known, then rules are appropriate. When the conditions are more uncertain and the optimal outcome is unknown, then standards are appropriate. I worry that the FCC is about to set down a series of rules for network neutrality before the real threat and the optimal outcome is known.

The other problem with rules is that they are brittle. Teams of lawyers will comb through whatever the FCC finally publishes and find any loopholes. There will be defined bright lines going forward and, make no mistake, ISPs will now get as close to those lines as they can. Whatever the Internet's rough consensus of "acceptable" was before, it's about to be thrown out in favor of a set of rules written by lawyers. Ironically, that may end up resulting in a regulated network that is less neutral than what we have today.

Setting aside political realities, I wish the FCC had done something quite different today. In my ideal alternate universe the FCC chairman would have given something like the following speech:

The Internet is one of the greatest inventions in human history. What has made the Internet great is that anyone, anywhere can publish an idea and reach a global audience. Incumbent on us preserving that Internet ideal is that the providers that make up the Internet not discriminate against one idea or another; not favor one byte flowing across their network or disfavor another. This principle of network neutrality is core to the continued success of the Internet.

_

We, as the FCC, are stewards of the communications systems in the United States. The policies of the United States also serve as a precedent for network regulators throughout the rest world. As such, when we act, we must do so with extreme care. To date, the Internet has been governed by a consensus-drive, bottom-up approach. That approach has succeeded in creating the most open, accessible network in human history. Our actions should serve to strengthen, not replace, that approach.

That said, there are real concerns about the increasing market power of Internet Service Providers. These providers hold a 100% monopoly on delivering content to each of their customers. Abusing that monopoly position is unacceptable and we, as the FCC, will not tolerate it. We hold, under Title II of the Federal Communications Act, broad powers to crack down on providers that are abusing their trusted position on the network. If we find abuses, ISPs be warned: we will not hesitate to use the full extent of our power.

Today, we are articulating a simple standards on network neutrality to which all ISPs will be held:

• Providers should not discriminate against or for any byte flowing across their network

• Providers should continue to invest in their networks to provide higher quality of service across the entire Internet

• Providers should not offer so-called "fast lanes" that content providers may purchase in order to favor their own content

_

To monitor compliance with this standard, I have hired a team of 100 investigators who will be fielding complaints around the clock from consumers and businesses about ISPs that fail to live up to these standards. We will take allegations of ISPs that do not follow these standards seriously and investigate them to the fullest extent. Non-neutral networks will be put through the equivalent of a legal root canal. And if we find that our current legal framework does not offer the tools to remedy abuses, make no mistake that we can and will act quickly under our full powers of Title II. To ISPs: you're on notice. To Internet users: we will be vigilant.

Now, of course, that would satisfy no one. John Oliver would take to his HBO show to yet again call Chairman Wheeler a do-nothing "dingo." But, I have a hunch, ISPs would actually act more cautiously and self-police out of fear they incur the full wrath of an FCC armed with specific consumer complaints. The risk of setting bad rules with their unintended consequences would be diminished. And, for at least a bit longer, we may preserve the Internet miracle: where technologists make decisions from the bottom up by rough consensus and running code, guided by the principle that any idea from anyone should be able to reach a global audience.

We believe that markets where large companies set the terms and small companies or new entrants are excluded to be inherently flawed. This would throw us back to the times of the Bell System, when it took decades of legal battles to launch innovative products such as the Hush-a-Phone or the Carterfone. There are two ways to guard against such an outcome. The first is to enact a mother-may-I set of rules which would strictly forbid certain types of network practices and where ISPs would have to get permission first. The second requires adjudicating instances of unreasonable discrimination on a case-by-case basis. No one knows just what is beyond the pale in advance, since it is on a case-by-case basis.

First, let’s take a brief look at the FCC, network neutrality, and the court ruling. The FCC is an independent U.S. agency charged with delegated rule-making authority from Congress to regulate “all interstate and foreign communications by wire or radio.” 47 U.S.C. § 152(a). The FCC regulates telephone carriers, cable companies, television stations, wireless providers, and satellite companies. Network neutrality is a catch-all phrase that emerged in the United States over the past decade. It is intended to ensure that network providers’ traffic practices treat all IP packets more or less the same in order to preserve the open characteristics of the Internet.

Back in 2010, the FCC established network neutrality rules which prevented broadband access providers from unreasonably discriminating against non-affiliated content or blocking any content, and required them to disclose their network traffic treatment practices to their end users. Verizon, a large access provider, brought a suit challenging the rules.

In the long-awaited decision the DC Circuit Court released this week, the court struck down the FCC's anti-discrimination and anti blocking rules, but upheld the FCC requirements that broadband providers disclose their network practices. The court reached this conclusion, not based on the policy of network neutrality, which it found to be ustified. Instead, it reversed the FCC’s 2010 rules based on the way the FCC had tried to shoehorn broadband access into the FCC jurisdiction over certain carriers. The FCC chose not to treat broadband providers under the rules it uses to govern phone companies (its traditional home turf), but under its general authority to regulate communications.

The implications of the court’s ruling is that it will either spur innovation or stifle it, depending on whom you ask. One side of the debate argues that broadband Internet providers are now free to experiment with new network arrangements and business models without getting permission from the FCC. The other side argues that there are real risks which, if left unchecked, could undermine new entrants and the freedom to innovate without permission from the ISPs.

Most broadband providers have already adopted some form of network neutrality practice, so the immediate short-run implications of the ruling are likely to be small. However, the ruling’s long-term implications could stifle innovation. A broadband access provider is now completely free to treat traffic in almost any way it chooses. It can block certain websites, provide priority access, charge edge providers, or throttle applications, so long as it discloses that treatment to its subscribers. Defenders of net neutrality fear that, in the long run, voluntary rules are likely to go the way of the PC as broadband providers seek increased control over their networks. There is the very real possibility that this rule change will give broadband providers more control over the content and applications their customers can download.

For the big companies like Verizon, Comcast, AT&T, Google, Amazon, and Netflix this is not a really big deal. They have armies of lawyers to settle the issue (I know, I used to be one). At the end of the day, they may reach some sort of accord where Google, Amazon, and Netflix pull up the ladder behind them, preventing new services from coming along.

The smaller players, thanks to this ruling, might in the future, face bandwidth that is more expensive, peering that is harder to get, and access to end users that is more difficult thanks to degradation of their traffic. This outcome would make innovation more difficult, not for the Amazons and Googles of the world, but for the more than 45,000 small hosting providers, the Dropboxes, the Imgurs, and the next generation of start-ups currently trying to take hold.

The entrepreneurs with just an idea and a slide deck may find themselves completely marginalized. If access to the Internet becomes sufficiently expensive and limited, then new entrants may find all venture capital dried up. USV partner Fred Wilson explains this possible outcome succinctly.

The DC Circuit Court expressly gave the FCC such an ad hoc way forward. CloudFlare can help in this approach. One of the reasons the FCC (and indeed regulators around the world) were unwilling to impose strong network neutrality rules was the absence of strong evidence of the potential harms. This might have been a chicken-and-egg problem. FCC jawboning, the spectre of regulation, and certain merger commitments may have been sufficient to keep broadband providers honest. So, if the bad outcomes I have described start to emerge, we need to document them and make that record.

For a small start-up, CloudFlare occupies a special position at the edge of the network in both the literal and figurative senses. Our co-founder Michelle Zatlyn serves on the FCC’s Open Internet Advisory Committee. She is the only representative from a start-up on the Committee. One of our investors, Brad Burnham, is also on the Committee. I have completed work on network neutrality issues over the course of most of the past decade including, an international comparison of approaches; a study for the European Parliament; one for the German government’s FCC; and one for the ITU Association of Japan. We are also plugged in to the developer community, the VC community, the public interest community, and the FCC. To the extent that our customers and colleagues have experienced the worst case fears of network neutrality, we want to know.

The future of a free and open Internet requires those developing the next generation of innovation to be better informed and more involved in the policy process. It also requires that policymakers know what is happening in the real world. CloudFlare will watch the developments carefully and track what happens. We can surface genuine problems more than mere hypotheticals. CloudFlare can then advocate on behalf of startups and the non-giants to preserve the principles of a free and open Internet.

In full disclosure, the author was formerly an attorney for both the FCC and for Google, where he worked on these issues. He is unrelated to Thomas Carter, the inventor of the Carterfone.