Category Archives: Net Neutrality
When I purchased my first internet law casebook, it was the lightest casebook I ever bought. The subject matter was so new, there was not nearly enough material to fill the book. At the time, the focus of the cases were creating means to use existing “terrestrial” law and apply it to online activity. The debate has turned to whether or not there needs to be a separate set of laws to govern activity on the internet.
Such a debate is now playing out in California, home of Silicon Valley, and Facebook. Governor Jerry Brown has signed a bill into law directing the L.A County Sheriff and the Alemeda County district attorney to monitor the internet to help determine whether or not California needs a new set of state laws to deal with Internet-related crimes. Specifically, they are directed to compile statistics related to identity theft, stalking, child molestation, and other internet related crimes for a period of one year. law From the L.A. Times.
“One of the most effective weapons in the fight against cyber-crime is accurate data and information,” said Evan Westrup, a spokesman for the governor.
State Sen. Ellen Corbett (D-San Leandro) introduced the measure a year after Facebook, Google, Twitter and other companies successfully lobbied to kill legislation she promoted that would have allowed parents to restrict their children’s personal information on social networking sites and limit disclosure of information about adults.
It seems that this bill was largely designed to create a justification for Corbett’s original bill, in order to bolster support and counter act the actions of social media and search engines who worked to kill the bill. It is much easier to build a support base for restrictive legislation if you can show evidence that such a restriction is necessary. In other words, this is a first step towards state governed internet restrictions.
It appears both the Democrats and the Republicans agree that PIPA/SOPA is a bad idea, a conclusion they probably came to when the internet blew up earlier this year in the wake of both pieces of legislation working their way through congress. Now it seems that both parties have decided to oppose the measures in their respective party platforms.
First it was the Republicans, spearheaded by Senator Marco Rubio R-Fla, who has been at the forefront of this issue since this past January, and played a large influence in forming the plank on the GOP platform. From the Washington Post:
GOP adopts Internet freedom plank: Part of the platform the Republican party adopted Tuesday night included language to protect Internet freedom, something that lawmakers and interest groups on both sides of the aisle have been calling for in recent months….
The Republican plank is focused on removing regulation around technology businesses, as well as language that would protect personal data online from the government. The platform language also says that the party will “resist any effort” to move Internet governance away from its current multistakeholder model in favor of international or “intergovernmental” organizations.
President Obama has also come out in favor of including and Anti-SOPA/PIPA plank on the Democratic Party platform after it was included on the GOP platform. From deathandtaxes:
Yesterday, during his Reddit AMA, President Obama stepped up and joined the call for internet freedom, saying that it would also be in the DNC’s platform at the upcoming Democratic National Convention, and writing, “Internet freedom is something I know you all care passionately about; I do too. We will fight hard to make sure that the internet remains the open forum for everybody.”
Where the two parties differ is over the issue of Net Neutrality, with Democrats supporting Net Neutrality and Republicans opposing it Net Neutrality is the principal that government should regulate internet service providers by preventing the ISP’s from limiting bandwidth as a means of edging out competitors. It is a major sticking point between those who want internet regulation to keep the internet open for consumers, and those who feel that ISP’s should not be regulated.
No matter how you look at it, Net Neutrality is government regulation of the internet, even if it is merely regulating the actions of ISP’s. As much as it appears like a good thing on the surface, it opens the door for more government regulation of online activity. If this is the major conflict related to internet regulation, I for one, welcome the debate.
Free Press, a non-profit media reform advocacy group, has filed a lawsuit in Federal Court over what they consider an arbitrary distinction between wired and wireless internet access contained in the Federal Communications Commissions new Open Internet regulations (also known as “Net Neutrality). This may seem like an arbitrary distinctions, but its purpose is primarily to open the door to challenge several other aspects, namely whether or not the FCC itself has the authority, under the 1934 Communications Act, to regulate how Internet Service Providers manage their assets and transactions.
The “Open Internet” Regulations, which go into affect on November 20, is outlined in the 155 page document “Preserving the Open Internet“. Here is its synopsis:
I. PRESERVING THE FREE AND OPEN INTERNET
In this Order the Commission takes an important step to preserve the Internet as an open
platform for innovation, investment, job creation, economic growth, competition, and free
expression. To provide greater clarity and certainty regarding the continued freedom and
openness of the Internet, we adopt three basic rules that are grounded in broadly accepted
Internet norms, as well as our own prior decisions:
i. Transparency. Fixed and mobile broadband providers must disclose the network
management practices, performance characteristics, and terms and conditions of their
ii. No blocking. Fixed broadband providers may not block lawful content, applications,
services, or non-harmful devices; mobile broadband providers may not block lawful
websites, or block applications that compete with their voice or video telephony
iii. No unreasonable discrimination. Fixed broadband providers may not unreasonably
discriminate in transmitting lawful network traffic.
We believe these rules, applied with the complementary principle of reasonable network
management, will empower and protect consumers and innovators while helping ensure that the
Internet continues to flourish, with robust private investment and rapid innovation at both the
core and the edge of the network. This is consistent with the National Broadband Plan goal of
broadband access that is ubiquitous and fast, promoting the global competitiveness of the United
Sounds good right? These are a set of principled goals created with the intention of allowing everyone equal access to the internet if they sign up for a service. Opponents of “Open Internet”argue that the government does should not regulate what corporations, businesses, and individuals etc., do lawfully on the internet. They argue that this is a first step encroachment by Big Government into the free market aspect of both internet access and internet activity. Legally their argument questions whether or not the FCC is authorized under the Act to regulate how Businesses providing Internet access, conduct their business activities. Why? Because Congress never amended the Act to give the FCC the authority to regulate business practices.
In an attempt to avoid political fallout over the volatile issue of Net Neutrality, Congress punted the question to the FCC and had them try to figure it out for themselves. In 2010, Comcast successfully used that argument in Federal Court when the FCC issued a cease and desist order attempting to force Comcast to limit bandwidth to users downloading possibly copyrighted video using BitTorrent. It could be argued that the law in this case is a double edged sword; if the FCC cannot force a privately owned internet service provider to limit bandwidth, it then cannot force a privately owned internet service provider to “not” limit ban bandwidth.
The Issues addressed in the lawsuit are contained on Page 32 of the document, where it draws a distinction between broadband or “wired” internet access and mobile, or “wireless” internet access. Free Presses Petition for review can be viewed here.