Update: Be sure to read our backgrounder - Why a Free and Open Internet Matters which describes how the ordinance works, why it's necessary and our theory of change.
Recently, we wrote that local communities could take inspiration from Pittsburgh's City Council ban on fracking and make net neutrality law, instead of waiting for Congress. We've now authored a model ordinance to legislate Net Neutrality in Seattle, working closely with the Community Environmental Legal Defense Fund (CELDF), which helped author the Pittsburgh ordinance.
Below is the first draft of the model net neutrality ordinance (pdf) which we will ask the Seattle City Council to pass. We encourage other communities to study the ordinance and adopt it in their own jurisdictions. Today, the Netherlands became the first European country to make Net Neutrality law. Our ordinance is meant to be used as a template for municipalities around the U.S. and globally as a starting point in codifying their right to a free and open Internet.
Please share the ordinance within your own community. We welcome your comments and feedback.
City of Seattle, Washington
Ordinance No. _____ of 2011
Whereas, this ordinance establishes a Bill of Rights which recognizes and secures the right of Seattle residents to govern themselves, and the right of Seattle residents to a free and open internet; and
Whereas, this ordinance then bans certain activities that would violate those rights; and
Whereas, this ordinance removes legal powers and authority from corporations providing broadband internet access services within the City, in recognition that those legal powers are illegitimate and unjust, in that they place the rights of a corporate minority over the rights and political authority of a majority of Seattle residents; and
Whereas, this Ordinance shall be known and may be cited as the “Seattle Right to a Free and Open Internet Ordinance” and
Whereas, this Ordinance is enacted pursuant to the inherent right of the residents of Seattle to govern their own community, including, without limitation, the Declaration of Independence’s declaration that governments are instituted to secure the rights of people, and Article 1, §1 of the Washington Constitution, which declares that “all political power is inherent in the people” and that governments “are established to protect and maintain individual rights.”
Section 1—Findings and Intent
The Seattle City Council and the people of Seattle find that access to the broadband internet creates opportunity for more direct civic engagement and increased educational attainment and free speech; and that such access enables people to more fully participate in a democratic process. To date, the network design principles fostering the development of the broadband internet - an end-to-end design, layered architecture, and open standards - promote innovation at the edge of the network and gives end users choice and control of their online activities.
The City Council and the people of Seattle find that those network design principles have led to the network neutrality of the internet, where there are no paid-for premium fast lanes and best effort slow lanes. We recognize that technologies now allow network operators to distinguish between different classes of internet traffic, to offer different qualities-of-service, and to charge different prices to each class of internet traffic. We also recognize that broadband internet access service providers have an economic interest to discriminate in favor of their own or affiliated services, content, and applications, and against other providers of such services, content, and applications.
The City Council and the people of Seattle acknowledge that the power and corporate “rights” of network operators have thwarted actions at the federal and state levels to secure a free and open internet, and that action at the municipal level is now necessary to protect and secure that critical right. Accordingly, those corporate “rights,” and the various legal and governmental doctrines created to protect those “rights,” must be directly challenged and overturned by local lawmaking.
(a) “Broadband Internet Access,” means the ability for an end user to transmit and receive data to the internet using Internet Protocol at peak download data transfer rates in excess of 200 kilobits per second, through an always-on connection, but the phrase shall not include dial-up access requiring an end user to initiate a call across the public switched telephone network to establish a connection.
(b) “Broadband Internet Access Service,” means any communications service by wire or radio that provides broadband internet access directly to the public, or to such classes of users as to be effectively available directly to the public.
(c) “Corporations,” for purposes of this ordinance, shall include any corporation, limited partnership, limited liability partnership, business trust, or limited liability company organized under the laws of any state of the United States or under the laws of any country, and any other business entity that possesses State-conferred limited liability attributes for its owners, directors, officers, and/or managers.
(d) “End User,” shall mean any person who, by way of a broadband service, takes and utilizes internet services, whether provided for a fee, in exchange for an explicit benefit, or for free.
(e) “Internet,” shall mean a system of interconnected networks that use the Internet Protocol for communications with resources or endpoints reachable, directly or through a proxy, via a globally unique internet address assigned by the Internet Assigned Numbers Authority or any successor or designee; or any technology which can be deemed the functional equivalent.
Section 3---Statements of Law – Rights of Seattle Residents
(a) Right to a Free and Open Internet. All residents of the City of Seattle shall possess the right to a free and open internet, which shall include, but not be limited to, the right to access, use, send, post, receive, or offer lawful content, applications, or services of the user’s choice.
(b) Right to Equal Access to the Internet. All residents of the City of Seattle shall possess the right to be free from provider service and performance level discrimination based on the identity, source or type of individual content or service providers.
(c) Right to Self-Government. All residents of the City of Seattle possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people’s authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.
(d) People as Sovereign. The City of Seattle shall be the governing authority responsible to, and governed by, the residents of the City. Use of the “City of Seattle” municipal corporation by the sovereign people of the City to make law shall not be construed to limit or surrender the sovereign authority or immunities of the people to a municipal corporation that is subordinate to them in all respects at all times. The people at all times enjoy and retain an inalienable and indefeasible right to self-governance in the community where they reside.
(e) Rights as Self-Executing. All rights delineated and secured by this ordinance shall be self-executing and these rights shall be enforceable against corporations and governmental entities.
Section 4---Statements of Law – Prohibitions Necessary to Secure Bill of Rights’ Protections
(a) It shall be unlawful for any broadband internet access service provider to block, interfere with, or degrade an end user’s ability to access, use, send, post, receive, or offer lawful content, applications, or services of the user’s choice; and it shall be unlawful for any broadband internet access service provider to block, interfere with, or degrade an end user’s ability to connect and use the end user’s choice of legal devices that do not harm the network.
(b) It shall be unlawful for any broadband internet access service provider to provide different levels of service and performance for network traffic based on the identity or source of individual content or service providers.
(c) Corporations engaged in providing broadband internet access services in violation of this ordinance, or seeking to engage in activities that would violate this ordinance, shall not have the rights of “persons” afforded by the United States and Washington Constitutions, nor shall those corporations be afforded rights under the 1st or 5th amendments to the United States Constitution or corresponding sections of the Washington Constitution, nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the Washington Constitution.
(d) Corporations engaged in providing broadband internet access services within the City of Seattle shall not possess the authority or power to enforce State or federal preemptive law against the people of the City of Seattle, or to challenge or overturn municipal ordinances adopted by the Seattle City Council, when that enforcement or challenge interferes with the rights asserted by this ordinance or interferes with the authority of the municipality to protect the health, safety, and welfare of its residents or to enforce this ordinance.
(e) No permit, license, privilege or charter issued by any State or federal agency, Commission or the City of Seattle to any person or any corporation operating under a State charter, or any director, officer, owner, or manager of a corporation operating under a State charter, which would violate the prohibitions of this Ordinance or deprive any City resident(s) of any rights, privileges, or immunities secured by this Ordinance, the Washington Constitution, the United States Constitution, or other laws, shall be deemed valid within the City of Seattle.
(a) The City of Seattle may enforce this Ordinance through an action in equity brought in a court of competent jurisdiction. In such an action, the City of Seattle shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees.
(b) Any City resident shall have the authority to enforce this Ordinance through an action in equity brought in a court of appropriate jurisdiction. In such an action, the resident shall be entitled to recover all costs of litigation, including, without limitation, expert and attorney’s fees.
(c) Any broadband internet access service provider which violates this Ordinance three or more times shall be prohibited from providing broadband internet access service to residents of the City of Seattle. The prohibition shall also apply to any providers which are partially or wholly owned by the provider which has been banned from providing service to Seattle residents under this provision.
(d) Any broadband internet access service provider found to be in violation in another jurisdiction of any rules, regulations, or laws governing free and open internet access shall be prohibited from providing broadband internet access service to residents of the City of Seattle. The prohibition shall also apply to any providers which are partially or wholly owned by the provider found to be in violation.
Section 6—People’s Right to Self-Government
The foundation for the making and adoption of this law is the people’s fundamental and inalienable right to govern themselves, and thereby secure their rights to life, liberty, and pursuit of happiness. Any attempts to use other units and levels of government to preempt, amend, alter, or overturn this Ordinance, or parts of this Ordinance, shall require the City Council to hold public meetings that explore the adoption of other measures that expand local control and the ability of residents to protect their fundamental and inalienable right to self-government. Such consideration may include actions to separate the municipality from the other levels of government used to preempt, amend, alter, or overturn the provisions of this Ordinance or other levels of government used to intimidate the people of Seattle or their elected officials.
Section 7 – Exploration of the City of Seattle as a Direct Broadband Provider
If broadband internet access service providers providing service to residents of the City of Seattle violate this ordinance in ways which evidence a pattern and practice on behalf of those providers to interfere with the rights secured by this ordinance, the City Council of the City of Seattle shall explore the potential for the City of Seattle to become a direct broadband internet access service provider to the residents of the City of Seattle.
The provisions of this Ordinance are severable. If any court of competent jurisdiction decides that any section, clause, sentence, part, or provision of this Ordinance is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the Ordinance. The Seattle City Council hereby declares that in the event of such a decision, and the determination that the court’s ruling is legitimate, it would have enacted this Ordinance even without the section, clause, sentence, part, or provision that the court decides is illegal, invalid, or unconstitutional.
All inconsistent provisions of prior Ordinances adopted by the Seattle City Council are hereby repealed, but only to the extent necessary to remedy the inconsistency.