It was a tough week for net neutrality supporters as the Trump Federal Communication Commission's decision to remove the neutrality rules from the Internet was upheld by the Circuit Court of Appeals.
It was a pretty close victory for the FCC as the court stated that it was necessary to oppose the agency's verdict and was bound by the precedent set in a controversial 2005 case called NCTA against Brand X . (or brand X for short). And the court said the FCC could not prevent states like California from enacting their own net neutrality laws.
But what really and truly stands out in the decision of the DC Circuit in this case: net neutrality at The Federal level has become a legal swamp that has almost no relation to the real problems that normal people face in the market for Internet access.
The debate on Net Neutrality policy is incredibly simple and understandable to almost anyone: Do you think that ISPs should be able to block, throttle, or otherwise disrupt Internet traffic outside of normal network management? Most people do not believe that ̵
But because the fight continues so long and the rules have been imposed and canceled so many times According to various legal theories, the actual court case and legal issues are a million miles away from the very simple political question.
Instead, the legal side of net neutrality has become an exercise among lawyers, in which there are disagreements over whether washing machines can talk on the phone, whether consumers with a single broadband provider still take advantage of competition, and whether federal agencies do or do so regulations can not invalidate state law if federal regulations do not actually exist. "Is it good if AT & T can throttle Fox News while streaming CNN for free?" It's never mentioned, though that's the basic political issue. It is deeply frustrating.
But it is also enlightening, as it makes abundantly clear that net neutrality must be averted from lawyers and judges and written into the actual law. And since the court has decided that individual states can enact their own net neutrality laws, it seems that's what's going to happen.
But let's go through that – you can download a copy here to join.
Still fighting the ghost of Antonin Scalia
The last 40 years of net neutrality history have been primarily a struggle over the question of whether the Internet is an "information service" (like the "Walled Garden" AOL or Prodigy regulated in Title I) or a common carrier "telecommunications service" (such as landline telephones, regulated under Title II).
The most important precedent is the 2005 decision Trademark X : The Supreme Court ruled 6-3 that broadband Internet was an "information service." Trademark X is also noteworthy because it is a sharp contradiction to the late ultra-conservative judge Antonin Scalia, who considered that the Internet access was a telecommunications service. Brand X is the shadow of the net neutrality debate, and it seems clear that the DC Circuit is committed to this precedent, but believes that it should be revised.
Regardless of Legal History It is obvious to most people that broadband Internet access is a telecommunications service that should be neutral. In this case, Ajit Pai and the FCC argued that broadband is indeed an "information service" because access is coupled with … DNS and caching services. This is DNS, as with domain name lookup servers, which convert domain names to IP addresses, and caching services, which host copies of data closer to your location for faster access.
No email, no crazy AOL chatroom. DNS and caching. And because this argument came to fruition in the case of Brand X of 2005 in 2019 the court was required to say that the FCC could reuse the same argument.
We consider broadband Internet access to be an "information service" Based on the functions of DNS and caching, this is a reasonable political decision for the [Commission] …
This claim – that ISPs, DNS and caching – offer sufficient to transform a direct broadband Internet access into an information service "- immediately forces the court to lengthy excursions and metaphors. Here's how DNS looks like invisible signs in the Internet subway. I have no idea what that means.
While DNS is "invisible" in the sense that it is "under the hood", it remains "essential to provide Internet access to the normal consumer." For example, the configuration tool or protocol may speed up or slow down Internet traffic, so that the use of different railway technologies in a subway can influence the train speed. However, an absence of DNS would be something completely different and would hamper ordinary users navigating the Web, much like a complete absence of signage in a subway. Signage is, of course, quite obvious, unlike DNS, but its user-centered purposes are the same for all practical purposes.
Of course, you can always use only a different DNS service than the one provided by your ISP, which completely ruins this already stupid metaphor, but the court does not really think about it.
And here's the verdict Even though encrypted Internet traffic (you know how all HTTPS traffic flows) does not go through ISP caching servers, it does not matter, as the FCC says.
The Commission noted (without contradiction in the record) that caching "facilitates and improves the access and use of information to consumers online". In particular,
Although HTTPS encryption is widely used in the industry – 73 percent of all Internet traffic is now encrypted – this is the ease of Internet service provider presence. Caching servers means that broadband is an" information service. " This does not make much sense, as an ISP simply provides DNS servers (which you do not need to use) and caching (which is irrelevant to any HTTPS connection) are obviously not enough to turn your broadband connection into the equivalent of Prodigy in 1998.
The court goes into this argument, stating that DNS and caching in Brand X were considered information services and will not overturn this precedent. This is simply a metaphor about weaving sweaters with golden thread:
The idea seems to be that ISPs are now offering less "walled garden" services as consumers care about in the era of most 2002 Cable Modem Order and Brand X, so that the definition of an "information service" on DNS and caching alone is as dubious as if a pair of golden threads woven into a regular sweater turned the sweater into a golden garment … However, the Supreme Court has never set or suggested such a quantitative standard to determine whether inseparable functions can justify classification as an "information service".
This is not difficult to understand: has offering DNS and caching embarrassed your Comcast? Connection to an "information service" like Dial-Up-AOL in 1998? No reasonable person would believe that, but this is Ajit Pai's argument, and he has the decision Brand X in his back pocket, so he won. This too is a legal victory, not a logical one.
Landlines and Washing Machines
The court next addresses the question of whether mobile broadband is a "commercial mobile service", which is the wireless version of a telecommunications service "Private Mobile Service" Analogous to an information service. I will spare you the details of the lengthy, lengthy discussion, except that the state of telecommunications law in 2019 is such that the court ruling on the basis of the fact that smart washing machines can not make calls.
] You think I'm kidding.
The proliferation of "smart" devices with IP addresses such as "servers, thermostats, washing machines and many other devices on the Internet of Things" threatened such a definition with a new complication. If these devices were part of the public switched telephone network, this could lead to the dubious conclusion that mobile voice is no longer a commercial mobile service because its subscribers can not connect to "all" endpoints in the network, e.g. "IP-capable televisions," "washing machines, thermostats and other smart devices" that do not allow voice communication. The entire mobile broadband argument is about whether mobile devices can connect to phone numbers!
If you did not think so, just try to figure out what in the world this block of words means VoIP:
The proliferation and proliferation of VoIP is in an orthogonal relationship with the Commission's position on the relationship between mobile Broadband and VoIP. Whether VoIP applications are used by many or a few users and whether they are preinstalled or purchased on an ad hoc basis, the question is whether VoIP features are part of the service in question – mobile broadband service – or other services that allow mobile broadband service Users access.
I just want to repeat that the basic question here is, "Should mobile broadband providers be able to block and throttle Internet traffic?" Somehow the court was distracted into nonsensical arguments about the availability of VoIP services that connect to the phone. The system determines the answer.
Oh, but we are not done yet – let's go ahead and start a linguistic debate on the definitions of "applications" and "services."
Neither party identifies (and we have not found) either a set of regulatory definitions purporting to draw boundaries between "applications" and "services," or a set of generally accepted language practices that draw such a boundary , or generally determine when the ability of apps that can be used with a service to be considered, are among the "capabilities" of the service.
I'd like to see AT & T send this language to a customer who is confused that CNN transmits data at its data rate for free, but Fox News does not.
The court then tries to clarify this perverse nonsense by rectification A fake conversation that absolutely no human would ever lead in reality.
When someone tells a friend, "I have a great new tablet with mobile broadband," it would be hard for a friend to answer, "Great – does your service allow me to reach you from my landline? "Of course the new tablet owner might answer, 'Not now – but it could be when I set up a Google Voice number', but that only shows the linguistic ambiguity.
I have this rejected specification script for a Verizon commercial it is getting more and more fun and sad.
Monopolies: They are great that the US broadband market suffers from a lack of competition and concludes that there is really enough competition, even for people, Serious!
However, we are satisfied with the Commission's other reasons for believing that there is competition in the broadband market, and that the Commission relies on empirical research supporting the claim that there is a presence in the broadband market of two fixed-line providers is sufficient to ensure that there is significant competition. Consumers in areas with less than two vendors can also benefit from the competitive advantages. A provider in this area "treats non-competitive customers as if they are doing so" as competitive pressure elsewhere "often affects a particular business".
This is just blind, obviously not true. If that were the case, everyone would love the prices and services they receive from the competitive ISP industry in America. Instead, Americans pay more for slower speeds than most other countries. I would love that judge to tell the millions of people in rural areas that they are asking for better broadband, that they are actually "taking advantage of competition".
But do not worry about this lack of competition, the court said: When ISPs do bad things, they evolve because of damage to their reputation .
In addition, these providers could face high operating and reputational costs if they behave poorly in non-competitive areas. On the basis of these reasonable findings and our very different audit standards, it was not arbitrary for the Commission to conclude that fixed broadband providers were under competitive pressure.
Let me just clarify that the court says AT & T and Verizon, as well as Comcast and Spectrum are caring, smart companies that do the right thing because they care about their reputation. That's a nice idea, but here in the real world, everyone hates their ISPs more than ever. Verizon has throttled the Firefighters' Liaisons during a wildfire . This is perhaps the most obvious way to damage your reputation. And AT & T is busy relieving HBO of redundancies and talent cuts, even though activist investors point out that its executives are bad at their jobs.
These companies are giants with virtually no competition, and they routinely behave like that because we cling to them.
I will not get anyone to override the legally very technical arguments about whether the FCC can override the state laws, except that the court was not very impressed with the FCC's argument that they were the implicit ones Authority, and was pretty keen on it.
If Congress wanted Title I to put some sort of peace of mind to the Commission-Compromise-like power to negate the state's legal (and sovereign) authority just by getting their hands on their own regulator, Congress could have said that.
to write a law, which, frankly, should happen. (And, indeed, Parliament passed the popular law Save the Internet, but the Senate will not take it up, while states across the country have passed their own net neutrality laws.)
The regulation of the broadband Internet was that This issue has been affected by lengthy litigation in which broadband providers have been subject to joint operator regulation over the last decade and have subsequently been exempted. We refuse to reactivate the on / off switch of the Common Carrier Regulation under these circumstances.
So that's the most important, unsigned opinion. However, I would like to point out that the two complementary comments signed are equally crazy. For example, Judge Stephen Williams wrote an opinion that partly agrees and partially contradicts, but the only thing you really need to know about it is that it starts with a quote from Macbeth :
And be this Juggling fiends no longer believed that they were double-swaying with us, holding the word of promise to our ears and breaking it to our hope, Macbeth says, finding that the assurances of the witches were a trick and that his life was around him breaks down around. The initiators of the Order of 2018, although certainly not Macbeths, could still feel some kinship when told that they have lawfully rejected the strict hand of Title II for the Internet, but that each of the 50 states has freedom has to enforce exactly this.
And Judge Patricia Millet wrote an opinion that is listed as an Accord, as she agrees that the court is bound to the Fire X decision, but every other part of it is a stinging reproach of the terrible majority opinion , But it is also written as dramatically as possible.
The Commission's decision to use DNA and caching as a sample for their regulatory classification, "can not endure much today." The typical broadband offering has little resemblance to the Brand X version. The walled garden was demolished and the fields were sown with salt.
This quote in the first sentence is with T.S. Eliot, do not worry, this whole thing remains as special as ever. But I think Judge Millet has one thing right: Antonin Scalia did it in 2005, and we have since paid for the bad decision of Brand X .
The walled garden is not only in ruins, but the roles of DNS and caching have changed dramatically since the decision to choose Brand X. And in a way that strongly advocates classifying broadband as a telecommunications service, as Justice Scalia had originally advocated.
The more I read this decision, the more it becomes clear that the legal machinations and exaggerated decisions based on a single precedent are ever further removed from the reality of Internet access for ordinary people. This decision could be challenged and Brand X could be overturned, but it is no longer time for net neutrality to leave the world of endless legal challenges and legal trivia and simply become law.
And at least that ridiculous decision seems to open the door to states like California.