Part 2 - No the FCC is not Repealing "Net Neutrality."

Part I generated some feedback that I'd like to address. Sorry, this is a bit "outline-y" I didn't have time to fully flesh everything out. Primarily two points:

1. With Title II gone, where else in the law is net neutrality protected?
2. Isn't the debate broader than just the legalities?

I think all sides agree that if there were a true free market for internet access, net neutrality would result naturally, and heavy regulation would not be necessary to enforce it. So....

Where else is net neutrality in the law?

47 CFR Part 8 - https://www.law.cornell.edu/cfr/text/47/part-8

This is where Section 706 of the Telecommunications Act of 1996 is codified. This is the part of the regulations that the FCC's proposed order would modify. Part 8.11 would be removed. All the rest would remain, including:

• Sec. 8.5 - No Blocking
• Sec. 8.6 - No throttling
• Sec. 8.9 - No paid prioritization

These still apply to ISPs relationship with end-users. ISPs are in a difficult position. The actually have two sets of "customers." End users on one side, and "edge providers" on the other (edge providers are Facebook, Google, Netflix, etc. - content companies).

47 CFR enforces net neutrality between ISPs and end users. That's not changing. The "little guy" is protected. Title II was an attempt to do the same between ISPs and edge providers. (See the discussion below about this issue). TL;DR - net neutrality is being co-opted by large edge providers to avoid having to invest in infrastructure.

Anti-trust

Anti-trust law is well established with over 100 years of court precedents. The Title II reclassification barred anti-trust lawsuits against ISPs. This FCC change restores FTC oversight and makes ISPs subject to Anti-trust law again. Many of the provisions of Title II mirror Anti-trust law. This makes sense because Title II was designed to regulate a telephone monopoly. The following are prohibited by anti-trust law. But most importantly, they are illegal only when a free market does not exist. This is the proper way to punish exploitation and not innovation.

• Price discrimination - Charging different prices to different customers (in our case either end users or content providers like Netflix, or YouTube. (ISPs could charge more if it reflected increased costs, just as they can still throttle traffic under Title II for "network management")
• Tying - requiring the purchase of one product to get another. It's illegal if it harms competition.
• Group Boycotts - All ISPs couldn't get together and block Netflix for example. Or a monopoly ISP could also not do the same thing on its own.
• Market division - Charter and Comcast could not agree to divide the country (or a city, or state) between them to avoid competition, for example.

Quick read on Anti-trust: https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws

Section 706 of the Telecommunications Act of 1996.

Section 706 allows the FCC and each state communications commission to promote a competitive market and spread of broadband access to all. Specifically, the FCC must:

.... encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.... by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.

The "Advanced Telecommunications Capability" mentioned is defined:

The term “advanced telecommunications capability” is defined, without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.

So, the FCC has a duty to promote deployment of broadband that allows users to send and receive high-quality voice, data, graphics, and video telecommunications using any technology. Sounds a lot like net neutrality.

In fact, the court in Verizon v. FCC struck down the FCCs original Open Internet Order, BUT agreed that the FCC has great authority under 706, and could promote net neutrality rules using 706 without Title II if done properly. The FCC began to craft such an order to comply with the court's requirements when they shifted gears and decided to use Title II instead.

So this approach is court tested and approved. Title II classification is not. It could, and likely would be challenged by the ISPs.

Other issues:

Net neutrality will be ineffective anyway.

Net neutrality is a lot like pure "democracy" or pure "libertarianism" - it's a great ideal and a very popular principle, but it doesn't survive contact with the real world very well.

Title II contains a provision allowing throttling, traffic shaping and blocking for purposes of network management. Optimizing and maintaining service on the network. This exception is HUGE. Almost anything can easily be justified as necessary for network management.

Consider Netflix and other streaming video services. They are the 800-pound gorilla in the net neutrality debate. On peak days, Netflix is 37% of all internet traffic in the United States. All other traffic will be crowded out if providers don't throttle or shape Netflix. Add other streaming video, and it's 70% of traffic. Throttling is happening right now, I guarantee. Title II and net neutrality allows that.

More info on streaming video:

https://venturebeat.com/2015/12/07/streaming-services-now-account-for-over-70-of-peak-traffic-in-north-america-netflix-dominates-with-37/

Net neutrality is increasingly unnecessary

The internet today doesn't operate like the internet of 15 years ago. Net neutrality rules are becoming less necessary.

In the past, The internet was largely point-to-point and unencrypted. Blocking Ted's website was a simple matter of knowing Ted's IP address. The rise of several technologies has made it nearly impossible for ISPs to block traffic in any granular way. The "cloud", VPNs, HTTPS, and CDNs (Content Distribution Networks).

• The "cloud" - many companies host their services on Amazon, Google, or Microsoft's cloud infrastructure. From the ISP's perspective, they see traffic from Amazon's cloud. They can't tell if it's Ted's website, or some other service. And they can't block it without affecting other traffic from Amazon.
• HTTPS - encrypts traffic between content providers and the end user. So the ISP can't tell if you're checking email, a website, or listening to audio. If you add a VPN, then your location is masked too.
• Lastly, CDNs - are similar to the cloud. An evil ISP can't tell what content you're downloading or from whom.

Other issues do remain unsolved, and are certainly open for debate.

The largest ISPs are also content providers. There is a conflict of interest there. What's the Net Neutrality answer: slow their own content? Do we separate ISP business from content? This is the real issue. Most examples of net neutrality violation I see mentioned are ISPs favoring their own content. I think it's a legitimate debate to have.


Are edge providers customers too? This isn't a typical two-party transaction. On the internet, the edge providers generate the demand, but don't pay for the traffic. The end users pay. This is why Google, Facebook, etc. favor Title II regulation. It allows them to keep access to the ISP networks without helping foot the bill. In a real sense, Facebook, etc. have gotten net neutrality advocates to side with them in the battle between massive corporate edge providers and massive corporate ISPs. Far from protecting the "little guy," net neutrality is a huge boon to Google, Facebook, Netflix, and other large content companies. It saves them from having to share infrastructure costs, despite being massive users of the infrastructure of others.

No, the FCC is NOT Repealing "Net Neutrality."

"Net neutrality" is not going away.


Net neutrality is, indeed, good for everyone. That's not really what the FCC is changing. A lot of the opposition to this change is really an overreaction. Some is spurred by misunderstanding, some by a reflexive anti-corporatism, and some is fueled by previous and current FCC commissioners who took regulatory control unilaterally, and don't want to relinquish it.


As a lawyer who has also worked in IT for over two decades, allow me to try and clarify what's going on, and dispel some of the hysteria that's all over the internet these days - with references to the actual law, for those who care.


What's being changed is this: Broadband ISPs are being re-classified as Title I entities instead of Title II under the Communications Act of 1934. Broadband ISPs were Title I entities from the dawn of the internet till 2015.


Title II classification is NOT net neutrality.


Net neutrality principles are different. They existed and were enforced prior to this change in 2015. Neither Title II nor the FCC created them. They developed along with the Internet itself, and the government has endorsed them as guiding principles in regulation of the internet. They will continue to exist and be enforced after this change is done. Just not by the FCC using the tools in Title II. Enforcement has always been by a combination of FCC (under Title I), FTC, and Anti-trust law. That enforcement will continue.


A note about the examples currently circulating online of past violations of net neutrality by ISPs:


ISPs have only been Title II entities since June 2015. So, whenever you hear examples of what ISPs have tried to do in the past to violate net neutrality, remember that ALL of those situations were resolved by the FCC, FTC, and the courts enforcing net neutrality *before* they were classified as Title II entities. In other words - after this change is implemented, we will still have all the same tools that solved all of those problems. Anyone who tries to tell you that title II classification was necessary to solve any of these issues is lying, misinformed, or just giving in to the hysteria of others.


History and effects of Title II classification:


The initial reclassification of ISPs as Title II entities was done at the urging of President Obama following a court ruling which struck down one attempt by the FCC to enforce net neutrality. The court decision offered another path to regulation besides making ISPs Title II entities. The FCC commission at the time chose instead, at the President's urging, to simply reclassify ISPs.


Title II classification was one method of allowing the FCC to regulate ISPs and enforce PRE-EXISTING net neutrality principles. And a very heavy-handed method. It's akin to preventing speeding by placing every licensed driver in the country on criminal probation - with GPS tracking, and all the other restrictions and requirements that come with it.


Remember, Title II was designed to regulate a government-enabled monopolistic phone company.


Are there some positive provisions that mesh with the goals of net neutrality? - Yes. Title II does prohibit discrimination and preferences among users of the service. (47 USC 202). It requires safeguarding personal information. (47 USC 222). And it gives access to utility conduits in a uniform manner proscribed by the FCC. (47 USC 224).


But those goods are paired with a heavy, intrusive set of requirements and grants of authority to the FCC. The requirements imposed on ISPs are neither simple, nor cheap - and go far beyond net neutrality, intruding into all aspects of the business. Sure, Verizon, or Comcast may be able to comply. But imagine the following list applied to small, local, or regional ISPs (XMission, Utopia, Rise Broadband, etc). Among other things, Title II:

• Gives the FCC power to set and approve rates (47 USC 205)
• Requires filing of fee schedules (47 USC 203)
• Requires filing of all contracts with other carriers (47 USC 211)
• Allows FCC to inventory and set the value of all corporate assets, and allows access to all corporate records and free access to all corporate physical property. (47 USC 213)
• Requires prior approval of the FCC to expand ISP networks. (and they are only allowed to do so if it's in the public interest). (47 USC 214).
• Gives the FCC power to modify or void contracts with equipment providers. (47 USC 215)
• Gives the FCC power to intervene in corporate management and obtain trade secrets and new technology to make them "available to the people of the United States." (47 USC 218)
• Requires filing of annual reports including: stock classes, values, and the names of the largest shareholders, corporate finances, corporate payroll info - including all employee salaries, value of all corporate equipment, etc. (47 USC 219)
• Allows the FCC to create and enforce accounting methods and practices, including capital asset depreciation schedules. (47 USC 220)

Is it any wonder the ISPs oppose Title II regulation?


Title II itself contains literally nothing about net neutrality as applied to a modern switched IP network. Such a concept didn't exist in 1934. What it does contain is massive regulatory compliance burdens for ISPs and sweeping powers for the FCC to violate traditional contract and corporate law principles. It will not be a big deal for the large ISPs and their large legal departments, but it will prevent smaller ISPs from forming or being successful.


If we feel the system used to enforce net neutrality from the dawn of the Internet until 2015 is inadequate, Title II classification is a big, blunt hammer of a solution. Let's take the lighter-touch path, and have Congress address any problems that arise.


Read the FCC Proposal here: http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1122/DOC-347927A1.pdf


Read the Communications Act of 1934 here: https://transition.fcc.gov/Reports/1934new.pdf

"It"

We all have our Boogeymen. 

(With apologies to Stephen King)

What is "It"?

"It" is a constitutional right, upheld by the Supreme Court - subject to a "balancing test" of competing interests.

"It" is a personal right, and one's exercise of "It" is no one else's business.

"It" results in thousands of innocent deaths every year in the United States.

"It" is seen by its most extreme opponents as unnecessary violence, reckless, even "murder" which should be banned.

"It" protects the individual's most private and fundamental rights from infringement by others. Hence, "It" should not be subject to ANY restrictions, according to its most ardent supporters.

"Its" supporters worry that popular "reasonable" regulations and restrictions are a slippery slope, eventually leading to a complete ban.

"It" is not seen as a serious concern in other developed countries. It is in the United States.

"It," or one's support of "It", is seen as a litmus test in one of the two major U.S. political parties.

"It" inspires protests, marches, boycotts, prayer, and other collective action by both supporters and opponents. Supporters and opponents do not trust or believe in the good faith of the other side.

"Its" leading organization for supporters has been promoting "It" for over 100 years. This organization rates candidates and spends millions of dollars every election cycle to promote "It."

"Its" providers are harassed, demonized and threatened at times.

"It" is seen as sometimes necessary, even essential in some tragic cases, by most Americans. But most wish "It" were not such a "necessary evil." Most Americans are moderate in their opinions of "It."

"It" is a right most Americans never exercise.

"It" is periodically thrust into the national consciousness by cases of horrific abuse.

"It" disproportionately affects those in poverty and minorities. Yet they are the most frequent users of "It."

"It" is sometimes used by those who feel they have no other choice and who's life or health is under imminent threat.... however....

.... "It" is more commonly used for less serious - some would say frivolous - reasons.

"It" has been the subject of numerous attempts by individual states to limit or restrict "It." Most of these limits have been struck down in court.

"It" is the right to.....?

Abortion?.... Yes.
Bear arms?.... Yes.

Each of the above statements is true of both those issues (and possibly others).

We all have issues that we feel strongly about. We all defend our view of rights, liberty, and personal privacy. Though we have (sometimes sharply) different ideas about right and wrong, fundamental liberty, and the role of government in enforcing or protecting our "rights" -- if we are passionate -- we often think about and categorize the issues similarly.

Hopefully, before we demonize those on the other side, we can stand back and understand how they see the issue.

A Little Careless?

I've been seeing people post that Hillary Clinton was "a little cavalier about internet security."

As a lawyer who also has 20 years of professional IT experience (including setting up and managing many email systems) I feel qualified to refute that. I can assure you she was not "a little cavalier about internet security."

Let's count the careless here. This is from an information security perspective. Maybe you don't realized just how dangerous this was.

1. Hiring someone without security clearance to install a server and email software in her home. That person had full administrative access to her email for an unknown length of time.
2. Registering a domain with her name in it, clintonemail.com, and a public registration. (At this point, literally everyone on earth knows who's system it is, AND that it's used for email, AND what software and version is used, AND its rough geographic location, AND the ISP providing service, AND the type of internet connection used, AND that it doesn't have government security). This also tells us that she hired an idiot for step 1.
3. We have no idea whether she had a firewall in place. Her version of Windows, without a firewall in place is routinely compromised within minutes of being connected to the internet).
4. We don't know who her ISP was, what security they had in place, or whether they had access to the server at any point.
5. Repeating 1, 3 and 4 when she moved the server to a hosting provider.
6. We don't know the physical security of the server at her home, or at either of the ISPs. Was physical access restricted? Does anyone know?
7. We don't know who moved the server twice. All the classified information was put into the hands of unknown persons, multiple times for hours or days at a time. Was any other software installed during the move? Were any drives copied?
8. We don't know what remote management solution was used, how it was protected, who had access, and for how long.
9. We don't know what backup solution was used. Was there physical media? Stored offsite? By whom? Where is it now? If they used online backup, all the previous unknowns are duplicated for that service.
10. Did the staffer who installed the server do all the management? If not, others had administrative access to her email
11. Accidentally not turning the email over after she left state, and repeating 1, 3 and 4 again when she moved the server again.
12. She went through multiple servers, multiple wipes of the data, all deliberate, plus an unknown automatic purge schedule, an unknown number of manual deletions over the course of four years, unknown automatic routing rules, the main purge of over half her email as "personal", a purge of her, her staff's and her attorneys' mobile devices, "losing" the server until subpoenaed, and no archive or backup produced.

The above is why the FBI just assumes that our enemies have all her email. It also means that the email she turned over in no way constitutes a complete, reliable or authoritative record of her time at State.

This would get anyone fired and prosecuted in the private sector - and has.

A "Top Secret" tale of two citizens.

First, some background. Read these two FBI statements to get up to speed on both cases:

James Comey Statement on Hillary Clinton's email server

FBI Press release on sentencing of Bryan Nishimura

Both cases examined the "unauthorized removal and retention of classified material" Let's do a point by point comparison based on the FBI Nishimura press release:

"In his role.... had access to classified briefings and digital records"
Nishimura: Check
Clinton: Check

"....[which] could only be retained and viewed on authorized government computers"
Nishimura: Check
Clinton: Check

"....caused the materials to be downloaded and stored on his personal, unclassified electronic devices and storage media"
Nishimura: Check
Clinton: Check

"....carried such classified materials on his unauthorized media at.... the end of his deployment [at the end of his/her authorized access]."
Nishimura: Check
Clinton: Check

"....continued to maintain the information on unclassified systems in unauthorized locations, and copied the materials onto at least one additional unauthorized and unclassified system"
Nishimura: Check, and Check
Clinton: Check, and Check

".... admitted that... he destroyed a large quantity of classified materials he had maintained in his home"
Nishimura: Check
Clinton: Check

"Despite that, when the Federal Bureau of Investigation searched [home/servers].... agents recovered numerous classified materials"
Nishimura: Check
Clinton: Check

"The investigation did not reveal evidence [of intent] to distribute classified information to unauthorized personnel."
Nishimura: Check
Clinton: Check

"admitted to [investigators] that he had handled classified materials inappropriately."
Nishimura: Check
Clinton: NO. She still denies this. The FBI found that she did.

Punishment:
Nishimura: Guilty plea, thousands in fines, loss of current and all future security clearances
Clinton: None.

Anything seem off about that to you?

Religious Freedom and Arizona

I know this is not a popular point to make, but ....

Sad day for religious freedom. The governor of Arizona vetoed a bill that would have protected the rights of (among others):
1. Jews to refuse to bake a Swastika cake for a Neo-Nazi celebration,
2. Muslim women to be covered in spite of company dress codes,
3. Black business owners to refuse to cater a KKK rally,
4. Catholic-owned pharmacies to refuse to sell condoms, and
5. Mormon landowners to refuse to rent their land to parties that will be serving alcohol at their gatherings.

The law simply stated:

"B. Except as provided in subsection C of this section, State Action shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.
C. State Action may substantially burden a person's exercise of religion only if the opposing party demonstrates that application of the burden to the person's exercise of religion in the particular instance is both:
1. In furtherance of a compelling governmental interest.
2. The least restrictive means of furthering that compelling governmental interest."

That's the whole meat of the bill. The rest is definitions and remedies at law.

The characterization of this bill as "anti-gay" in the media is dishonest and obscene. If this Bill is anti-gay, then the 1st Amendment to the U.S. Constitution is as well. All the bill does is restate that amendment's protection for religion and the existing court test for when the state may lawfully infringe on religious practice. Gays are not mentioned, nor are Muslims, Mormons, Catholics or Jews. Everyone's freedom of conscience is protected.

Let me repeat: All this bill would have done is restate current Federal and state law. Read it yourself if you don't believe me (the bill minus definitions is less than one page long): http://www.azleg.gov/legtext/51leg/2r/bills/sb1062p.pdf

What the media have done is pick one possible scenario under the law, and convinced everyone that the bill was about refusing service to gays and lesbians.

Everyone cheering this veto needs to think about this long term. Yes, you've prevented a possible outcome you find undesirable. But, what happens in the future when the KKK sues because they were refused service at a business because the owner felt conscience-bound to not promote their lifestyle? If you think other laws will protect them, or "that could never happen here, everyone agrees the business shouldn't have to..." just wait. Times change, and tactics used to promote views you agree with can just as easily be used to promote others you abhor. The only safe path is to strongly guarantee each of us the right not just to believe, but to ACT on our sincere beliefs in both the personal and public spheres..

Failure to check the types of lawsuits that prompted this law is a two-edged sword.

The Utah Gay Marriage Ruling is Judicial Activism, But Not Because of the Decision....

Conservatives are quick to label Judge Shelby's decision a case of "judicial activism." But, what does that mean?

I'm not going to criticize the ruling in this post. I am going to argue that regardless of your opinion on gay marriage, this decision is not the way we want decisions to be made.

The Decision was Issued at the Wrong Point in the Case

Judge Shelby decided the case by ruling on a motion for summary judgment. He essentially ruled that there are no disagreements of fact. That is patently untrue and he made the ruling without hearing the facts in dispute.

Motions for summary judgment are made at the beginning of almost every case, by both sides, as they were here. In these motions, each side makes a BRIEF summary of their case focused on why there doesn't need to be a trial. The goal is to convince the judge that there is no real chance the other side can win.

There are no witnesses called, and only limited written and oral arguments are heard in support of a motion for summary judgment. Neither side presents all their evidence.

That's the key point - Neither side presents all their evidence.

This case will have a huge impact nationwide, not just in Utah. If judge Shelby's ruling is eventually upheld, ALL state laws and constitutional amendments will be invalidated, not just Utah's. His ruling really is unprecedented. No other Only one other gay marriage law has ever been found to violate the Federal Constitution. **

In this type of case I want all the evidence to be heard. I want to know that the judge has heard all the arguments for and against amendment 3, not just a summary focused on criticizing the other side's case.

Judge Shelby pointed out that the state didn't ask for a stay with their motion for summary judgment. The state didn't move for a stay at the time because no one expected the case to be decided at this point. The Plaintiffs did not move for a stay either, for the same reasons.

If judge Shelby had ruled for the state, proponents of gay marriage would want all the evidence heard. They would feel that the ruling "short circuited" the legal process - and they would be right. Summary judgment is not appropriate in a case of this magnitude.

Not Staying the Decision Pending Appeal Means the State Can Never Win

In addition to not hearing all the evidence, by not issuing a stay of his decision (allowing the status quo to remain) while the State appeals, Judge Shelby is ensuring that even if Utah wins in the Appeals court, or the Supreme Court, the couples suing the state still win.

He is harming Utah's position on appeal.

Let's imagine another case. In this case two parties dispute ownership of land. One side has been recognized as the undisputed owner, and has kept he land as undeveloped wilderness for over 100 years. The other party recently discovered that they may, in fact, be the true landowner, and they want to build a skyscraper on the lot.

The party wishing to build on the land sues the other party, and both sides submit motions for summary judgment. Both sides, and the court, know that the losing side will appeal the ruling.

Let's assume that the judge finds that the skyscraper team owns the land, and rules for them, and allows them to start building the skyscraper immediately. The losing side has substantial evidence to present, and asks the judge to stop construction until they can appeal the ruling.

The fair outcome in this case would be for the judge to halt construction until the case has a final decision. If she does not, and allows construction to begin, the skyscraper team wins anyway, no matter what happens on appeal. If the original owner wins in the supreme court 3 years later, it doesn't matter, the building has been built. It would be expensive and unjust to tear down the building and return the land to its original state - who would pay the costs to clear it, and who would compensate the developer for the time and resources spent to build the skyscraper?

That's the position Judge Shelby has put Utah in. By not staying his decision, the Plaintiffs get everything they want while the appeal is ongoing. If Utah wins on appeal, the "damage" is done. the definition of marriage in Utah has changed because hundreds of gay marriages have been performed, joint tax returns filed, death benefits collected and so on. It would be unjust and expensive to allow Utah to keep traditional marriage. The longer gay marriages are performed, the more parties would be harmed by a ruling in favor of the state. Appeals courts consider this kind of harm when ruling, as they should.

Leaving the law in place during appeal does not impact either the state or same-sex couples in Utah, and would not harm Utah's chances on appeal. That would have been the fair way to handle things.

In summary, judge Shelby did not have all the facts when he ruled. He alone invalidated the marriage laws of 33 states without hearing all the evidence from both sides in even one of those states. He seems convinced that no evidence could possibly convince him, the 10th circuit, or the U.S. Supreme Court to rule otherwise, and thus will not stay his decision. The fact that he chose not to leave the status quo in place while the state appeals means that Utah loses, and the plaintiffs get what they want, even if the state wins in the appeals court.

That's what we mean by judicial activism.

** (A reader pointed out to me that one other Federal District judge has ruled on 14th amendment grounds - Judge Vaughn in the California Prop 8 case. His is the ruling that still stands after the Supreme Court vacated the Ninth Circuit decision. However, this decision will not be appealed again, and can't be used to strike down marriage laws in other states -- It's complicated).