Net Neutrality and Healthcare IT Don't Mix

Imagine this scenario: A patient comes into the ER with a life-threatening medical complication. The doctor needs immediate access to a healthcare information exchange (HIE) to obtain the patient's electronic health records (EHR)...but she can't get to them. Why? Because the hospital's Internet service provider (ISP) is bogged down with other network traffic - things like streaming movies, downloading music, and playing video games.

While many bemoan the U.S. Court of Appeals for the D.C. Circuit's January 14th decision that FCC cannot enforce net neutrality as the end of the Internet as we know it, for service providers and many healthcare professionals the fact is all data is not created equal. There's information like EHR and then there's cat videos on Youtube. Many consumers (and the FCC) believe that ISPs should not discriminate the data that travels over its networks, others are arguing that allowing private companies the discretion to regulate their data traffic is exactly what the Internet, and healthcare IT, need to move innovation forward.

In 2010 FCC passed rules supporting net neutrality when it was discovered that Comcast was deliberately slowing traffic for users who were using BitTorrent – a protocol for peer-to-peer file sharing (that is often used for illegal movie and music downloads). FCC decided that the Internet should be open access and ISPs must treat all Internet traffic the same. 

Verizon quickly struck back and sued to have the FCC's regulations overturned. After noting that ISPs are defined as “information service providers” and not “telecommunications providers” (like, say, your local phone company – which is not allowed to block or regulate phone calls) the courts decided that FCC cannot tell ISPs what they can and cannot allow on their networks – effectively killing net neutrality (though no company has openly acted and begun slowing or blocking certain sites or traffic...yet).

Back in 2008, David Myslinski , then the legislative assistant for the health and human services, and telecommunications and information technology task forces at the American Legislative Exchange Council (ALEC) called net neutrality a serious threat to healthcare innovation, arguing that as more and more patients, doctors, and hospitals take advantage of healthcare information technologies such as mHealth it will become increasingly important for ISPs to manage their networks in a way that allows healthcare data to flow quickly and easily, “When network providers are instead allowed to manage the web traffic running through their servers and prioritize it, services like telemedicine procedures can proliferate,” Myslinski wrote.

However, there is a counter-argument to be made along the same grounds. If ISPs like Verizon are allowed to manage their own networks, what's to stop them from deprioritizing data from another network? Even healthcare data? There's no guarantee an ISP will let any data but its own move swiftly, no matter the importance.

In a paper titled “Why common carrier and network neutrality principles apply to the Nationwide Health Information Network (NWHIN)” published in July 2013 in the Journal of the American Medical Informatics Association (JAMIA) the authors argue that this would be exactly the problem. They cite an example in which Verizon was found to have given preference to network traffic from its OnCare remote health monitoring service over competitors like MedicalAlert.

Without net neutrality, the authors argue, innovation will slow as there will be no incentive for further developments with HIEs. “To be effective, the exchange of healthcare data must not be overly constrained. At the same time, robust infrastructure must exist to track down offenders breaking privacy rules. The successful adoption of HIEs may very well depend on the acceptance of a neutral NWHIN.”

Right now it is unclear how FCC intends to proceed following the ruling. FCC representatives declined to comment for this article, stating that the commission is still reviewing the court's decision.  

For their part, the ISPs are assuring customers that the court's decision will not affect their commitments to providing an “open Internet.” In a press statement, Randal Milch, Verizon's general counsel and executive VP of public policy, law and security says, “[The court's] decision will not change consumers’ ability to access and use the Internet as they do now. The court’s decision will allow more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the Internet...We look forward to working with the FCC and Congress to keep the Internet a hub of innovation without the need for unnecessary new regulations that seek to manage the explosive dynamism of the Internet.”  

 -Chris Wiltz, Associate Editor, MD+DI
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