Keeping politicians' hands off the Net & everything else related to technology
So reports the Internet Freedom Coalition, debunking a variety of shrillitudes from advocates who want the government to regulate the Internet.
And the American Legislative Exchange Council has joined a chorus of support for the D.C. Circuit’s decision upholding the rule of law in the regulatory environment.
REAL ID continues its long, slow failure. The federal government’s national ID plans continue to bash against the shoals of state and popular opposition.
Late last month, the governor of Utah signed H.B. 234 into law. The bill prohibits the Utah driver license division from implementing REAL ID. That brings to 25 the number of states rejecting the national ID law, according to the Tenth Amendment Center.
And the state of Nevada, one of few states that had been working to get in front of REAL ID, is reconsidering. With wait times at Las Vegas DMVs reaching two to four hours, the legislature may soon allow a temporary REAL ID implementation measure signed last year to lapse—this according to the Ely (NV) News.
Congress has attempted to circumvent the growing state opposition to REAL ID with the now-stalled PASS ID legislation. It basically would rename REAL ID so as to nullify the many state resolutions and laws barring implementation of the national ID law because they refer to the May 2005 “REAL ID” law specifically.
But PASS ID is the same national ID, it has all the privacy issues of REAL ID, and its costs would be as great or greater than REAL ID.
That doesn’t mean national ID supporters in Congress won’t try to sneak the REAL ID revival bill into law sometime later this year, of course . . .
Here are two radio programs that took place today discussing the ramifications of this week’s Comcast v. FCC decision. The first was today’s Diane Rehm Show on NPR and it featured Ben Scott of Free Press, Amy Schatz of The Wall Street Journal, and Kyle McSlarrow of the National Cable and Telecommunications Association (NCTA). I can’t embed it directly here but you can listen to the hour-long show here.
The second program was on KQED – San Francisco’s “Forum with Michael Krasny.” It featured Declan McCullagh of CNET.com, Art Brodsky of Public Knowledge, Eric Klinker, president and CEO of BitTorrent, and me. You can listen to this hour-long debate by clicking below.
Well, you got it! Here’s a essay of mine that The Daily Caller ran today discussing the ramifications of the decision.
___________
Internet freedom got a reprieve Tuesday when the U.S. Court of Appeals for the District of Columbia slapped down a brazen attempt by the Federal Communications Commission (FCC) to ignore the rule of law and begin imposing onerous regulations on broadband network operators. The decision, Comcast v. FCC, deals with arcane matters of regulatory agency jurisdiction, but the stakes were profound and the ramifications for the future of the Internet will reverberate for years to come.
In a nutshell, the FCC argued it had the right to impose so-called “Net neutrality” regulations on a private broadband operator based merely on a handful of principles that the agency had previously said it would not be enforcing as law. Net neutrality regulations would put FCC bureaucrats in the Internet’s driver’s seat and let them determine what was “just and reasonable” of private networks. Critics have rightly feared that Net neutrality sounded all too much a Fairness Doctrine for the Internet since similar language had been used in the broadcast era to justify all sorts of FCC meddling and micromanagement.
Regardless, the FCC’s original position—that its Net neutrality principles were only principles and nothing more—made sense since even a high school civics student can tell you that only Congress can make laws. Moreover, for a brief time, even the FCC seem to realize that laws that would comprehensively regulate such an important sector of the American economy, as Net neutrality rules would, almost certainly require our elected leaders in Congress to reopen and tweak existing statutes like the Telecommunications Act of 1996. After all, Congress had never authorized wide-reaching regulation of the Net or broadband networks, and so, if the agency wanted to extend its regulatory tentacles and wrap them around the Internet it only seems reasonable they get the blessing of lawmakers before doing so. And, for a time, the FCC stuck to a “Hands Off the Net” approach.
Yesterday, if you paid attention reeeeally carefully (1, 2, 3, 4), you probably figured out the D.C. Circuit had ruled that Congress hadn’t given the Federal Communications Commission power to regulate the Internet and that the FCC couldn’t bootstrap that power from other authority. It was a rare but welcome affirmation that the rule of law might actually pertain in the regulatory area.
But the Open Internet Coalition put out a release containing threat exaggeration to make Dick Cheney blush:
“Today’s DC Circuit decision . . . creates a dangerous situation, one where the health and openness of broadband Internet is being held hostage by the behavior of the major telco and cable providers.”
That’s right. It’s a hostage-taking when consumers and businesses—and not government—hammer out the terms and conditions of Internet access. Inferentially, the organization representing Google, Facebook, eBay, and Twitter believes that Internet users are too stupid and supine to choose the Internet service they want.
What these content companies are really after, of course, is government support in their tug-of-war with the companies that transport Internet content. It’s hard to know which produces the value of the Internet and which should gain the lion’s share of the rewards. Let the market—not lobbying—decide what reward content and transport deserve for their roles in the Internet ecosystem.
As I said of the Open Internet Coalition’s membership on a saltier, but still relentlessly charming, day: “[T]hese companies are losing their way. The leadership of these companies should fire their government relations staffs, disband their contrived advocacy organization, and get back to innovating and competing.”
In the wake of yesterday’s ruling in the D.C. Circuit that the FCC had exceeded its authority in attempting to regulate access to the Internet, I did a number of radio interviews and a radio debate with Derek Turner of Free Press, a leading advocate of Internet regulation.
The debate was a brief, fair exchange of views. I was struck, though, to hear Turner refer to the situation as a “crisis.” Sure enough, in a Free Press release, Turner says three times that the ruling creates a “crisis.”
Recall that in 2007 Comcast degraded the service it provided to a tiny group of customers using a bandwidth-hogging protocol called BitTorrent. Recall also that before the FCC acted, Comcast had stopped doing this, relenting to customer complaints, negative attention in news stories, and such.
In the wake of the D.C. Circuit ruling and the crisis it has created, Internet users can expect the following changes to their Internet service: None.
Wow. With crises like these, who needs tranquility?
“As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites,” the release intones.
That would be worrisome, though still not much of a crisis—except that Comcast would be undercutting its own business by doing that. Did you know also that no federal regulation bars people from burning their furniture in the backyard? That’s the same kind of problem.
As Tim Lee points out in his paper, “The Durable Internet,” consumer pressures are likely in almost all cases to rein in undesirable ISP practices. Computer scientist Lee presents examples of how ownership of communications platforms does not imply control. If an ISP persists in maintaining a harmful practice contrary to consumer demand—and consumers can’t express their desires by switching to another service—we can talk then.
In the meantime, this “crisis” has me slightly drowsy and eager to go outside and enjoy the spring weather.
The Federal Communications Commission keeps grabbing and the judges keep slapping its hands.
The big news today is that a federal appeals court has ruled the FCC has no legal authority to regulate the Internet. This throws the entire FCC broadband policy agenda into turmoil.
The decision, by the United States Court of Appeals for the District of Columbia Circuit, concerns sanctions the FCC imposed on Comcast after the cable company slowed down the rate of transfer for certain peer-to-peer files using the BitTorrent protocol. Although Comcast and BitTorrent settled the dispute, the FCC nonetheless sought to fine Comcast for violating the FCC’s network neutrality guidelines against content discrimination. Comcast sued, claiming it had the right to manage its own network to serve the interest of the 95 percent its customers who don’t use BitTorrent.
I got a call today from CNBC asking me to appear on a program to discuss the rising controversy surrounding GetUnvarnished.com, which CNBC called “the scariest website ever” and an “online reputation killer.” For those of you not familiar with the site, it bills itself as “an online resource for building, managing, and researching professional reputation, using community-contributed, professional reviews.” More specifically, the site says:
Unvarnished reviews help you get the inside scoop on other business professionals, providing candid assessments of coworkers, potential hires, business partners, and more. By contributing Unvarnished reviews, you can share your knowledge of other professionals, giving credit where credit is due, and valuable feedback where needed. Lastly, your own Unvarnished profile, which you may create yourself or claim one that has been created for you, helps you take control of and build your own professional reputation. Get recognition for your accomplishments and actively manage your career growth.
In essence, the site is like other online product or service review sites except in this case the product or service being reviewed is you! By letting people comment on other people’s reputation anonymously, the theory is that Unvarnished can become “a central hub for community-contributed reviews regarding an individual business professional,” according to the site.
However, as you can well imagine, the site raises all sorts of thorny questions about anonymity, free speech, privacy, personal reputation, libel, child safety, cyberbullying, intermediary liability, and so on. If you read these two TechCrunch articles [1, 2], you’ll get a good feel for the heated debate that will follow, which I’m sure we’ll be talking about more here on this blog in the months to come. I can see this becoming the next AutoAdmit or JuicyCampus case, and raising some of the same questions that came to the fore during the “skank” blogger case last year. For now, here’s the video from the CNBC show, and down below I have included some talking points I put together before I went on the air.
(Adam beat me to the punch (he’s on East Coast time, after all), but I wanted to make a few preliminary remarks about the FCC loss today anyway.)
The D.C. Circuit Court of Appeals issued its opinion today in Comcast’s appeal of sanctions issued in 2008, rejecting the FCC’s authority to issue the sanctions in the first place. (Brent Kendall of The Wall Street Journal has already reported the story, see “Court Strikes at Net Neutrality.”)
The ruling punished the cable company’s efforts to throttle peer-to-peer traffic over its network of some customers using the BitTorrent application, a network management principle the FCC said violated its “policy” on open and transparent Internet or “net neutrality.” Since Comcast agreed to more subtle forms of traffic management and to make such decisions more transparent, the FCC left them with a slap on the wrist. Comcast appealed nonetheless. (Appeals of FCC adjudications go directly to the D.C. Circuit.)
I’ve read through the court’s 36-page opinion, which will serve as an important marker in the “net neutrality” debate. It largely follows the harsh line of questioning taken during the oral arguments for the case back in January, where the panel challenged the FCC to identify a specific statutory provision that gave them authority to impose the neutrality principles—in this case, in an adjudication that Comcast had failed to follow the rules.
The decision in Comcast v. FCC is out and it’s a resounding defeat for the Federal Communications Commission and the agency’s creative interpretations of “ancillary jurisdiction.” The U.S. Court of Appeals for the District of Columbia just wasn’t buying the FCC’s claim that it had “ancillary jurisdiction” to enforce amorphous policy principles against Comcast under past case law or, more amazingly, via some deregulatory-minded passages from the Telecommunications Act of 1996. [For all the background on this case and the definitive refutation of the agency’s jurisdictional assertions, see this paper and this filing by my colleague Barbara Esbin. Barbara practically wrote the script for the Court’s decision today through her meticulous debunking of each of the agency’s creative theories of law.]
I’m just working my way through the decision for a second time and will likely have more to say about it in coming days, but I just had to reprint this one passage from the decision on pg. 23-4, in which the Court notes that the FCC is basically asking for “anything goes” authority over all networks and the Internet:
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
