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competition Intelwars Legislative Analysis net neutrality

The U.S. Internet Is Being Starved of Its Potential: 2020 in Review

Over a year ago, EFF raised the desperate need for the United States to have a universal fiber infrastructure plan in order to ensure that all Americans can obtain access to 21st century communications technology. Since then, we’ve produced technical research showing why fiber is vastly superior to all the alternative last mile broadband options in terms of its future potential, published legal research on how the U.S. regulatory system started getting it wrong (as far back as 2005), and suggested a path forward at the federal and state level (including legislation) for transitioning the U.S. communications infrastructure toward a fiber-for-all future.

Since then, the pandemic changed our world, as remote work and education became a necessity for most people. At the very start of the stay-at-home orders, EFF expressed our concern that our failure to deliver ubiquitous, affordable, future-proofed infrastructure is going to hurt the most vulnerable. People that lack fiber infrastructure are stuck with second-class Internet access with limited potential as prices continue to rise, slow speeds become obsolete, and needs for better access grow. Most notably, in response to these problems, the House of Representatives passed a universal fiber plan as part of the COVID-19 recovery effort, and we continue to make the case to the U.S. Senate, which has passed no universal 21st-century broadband plan, as to why Majority Whip Clyburn’s Affordable, Accessible Internet Act is the federal answer.

But so long as our local, state, and federal governments do not prioritize delivering future-proofed infrastructure to all people, our ability to make full use of the 21st century Internet will be limited. New services and applications will be tested and created in Asia, not here, and the next Silicon Valley premised on high upload low latency applications and services will not be in California.

America Is Behind by Choices Made by a Handful of Political and Regulatory Leaders

A billion fiber optic connections to the Internet are coming online in just a few years. A large majority of them will be in Asia, primarily led by China. These connections have already proven to be future-proof, capable of reaching not just gigabit speeds, but multi-gigabit speeds. Fiber is not only faster; it’s also cheaper long-term.

On average, the United States has the slowest, most expensive Internet access market among advanced economies.

No other connection even comes close by comparison. The future of the Internet is going to be fiber. Just not in the United States. Yet. We could still change this.

But for now, the United States remains woefully behind dozens of advanced economies, with an overwhelming amount of the infrastructure dependent on slow legacy infrastructure primarily built in the late 20th century. Those legacy copper and coaxial cable connections have failed to deliver robust enough connectivity to handle the immediate remote work and remote education needs of COVID-19 pandemic. They will not handle the future. 

Moreover, their costs are increasing due to obsolescence and will be useless for future applications and services dependent on high-speed, low latency access. This lack of ubiquitous fiber is one of the reasons why the United States is so far behind 5G speeds available, even on downloads (see chart below).

 

On average, the United States has the slowest, most expensive Internet access market among advanced economies, which is choking off the Internet’s ability to be a force for improving American lives while the world marches forward. What the Internet becomes in the mid-to-late 21st century will not be an American story, unless we aggressively course-correct our infrastructure policies soon.

America Doesn’t Need a “Broadband Plan,” it Needs a Fiber Infrastructure Plan

A decade ago, the FCC issued a congressionally mandated “National Broadband Plan” establishing a goal of connecting 100 million U.S. homes to 100 mbps download and 50 mbps upload by 2020. While advancements in national download speeds have occurred due to some cable industry changes, hybrid fiber/coaxial cable systems are still failing to deliver robust upload speeds. In fact, during the pandemic when broadband access demand is extremely high, cable systems failed to deliver.

Essentially, the COVID-19 crisis increased our Internet usage by a year’s worth of growth in a few weeks.

Fiber was able to handle it, cable was not (and 5G just barely exists). Our technical analysis of broadband access options found overwhelmingly conclusive evidence that the inherent capacity in a fiber wire is orders of magnitude greater than all of the alternative wire and wireless options. And most recently we are now seeing wireless industry acknowledgement of the importance of widespread fiber to 5G’s future (but an absence of solutions other than “give us more money”).

While many in government will talk about how we need to get “broadband” to everyone, what they should really be talking about is how we get 21st-century-ready fiber infrastructure to everyone. This distinction is important because we have already spent billions upon billions of dollars building “broadband” with virtually nothing to show for it. That happened because we subsidized slow speeds on any old network with little expectation of future increases in capacity. For example, Frontier Communications received a large amount of federal subsidy but wasn’t forced to begin long term upgrades to cost-efficient fiber, resulting in the telecom carrier’s bankruptcy. They took all those federal dollars straight to the grave because all that was required was to deliver 10 mbps download/ 1 mbps upload Internet to as many people as possible. Those federal dollars were then squandered on propping up obsolete copper networks in rural markets, instead of long-term fiber, forcing us to have to spend the money again now on fiber.

This is why slow networks actually cost more than fiber; the number of years the investment remains useful is relevant to your total costs. The only state in the U.S. that appears to have escaped this fate was North Dakota, where nearly 67% of the state’s residents have gigabit fiber (the U.S. average sits around 30% of households). The reason broadband looks so different there is because local private and local public providers spent those dollars on fiber (and notably no national carriers sell broadband in North Dakota). Big legacy industry would love for the government to continue to spend large amounts of money on slow speed perpetual subsidies (which is still happening today from the FCC and in states like California) because it solves nothing and maintains their slow Internet monopoly.

Continued government spending on this approach though is akin to giving the Joker a pile of cash and watching him set it on fire.

 

The Absence of Regulation Is Part of the Problem 

The thing that holds back the large national broadband providers is the resistance to making long term investments in infrastructure as opposed to short term profits. As noted earlier, large publicly traded ISPs are ill-equipped to address the national need for fiber because of its high upfront costs and their standard three- to five-year return on investment formulas for determining where to build. This is why even densely populated cities like New York City (NYC) had to spend six years suing Verizon to expand fiber, despite the fact that it is completely profitable to serve all of New York City in the aggregate.

There are very few legitimate reasons densely populated cities like Los Angeles and Oakland aren’t near universal fiber at this point. Knowing this, EFF has called on the California Public Utilities Commission (CPUC) to simply require every broadband provider providing service throughout a major city with a population density in excess of 1,000 people per square mile to give everyone fiber as a condition of doing business in the state. It is already against state law to discriminate based on socio-economic status and the evidence is coming in that fiber is going to high-income and skipping low income neighborhoods. In fact, given that income can serve as a proxy for race, recent studies are showing that black neighborhoods are being skipped by fiber in Los Angeles County and high-speed access is being deployed along in a discriminatory fashion in Oakland that matches past redlining that occurred with housing.

California’s state law is already clear that you aren’t allowed to profit from unreasonable discrimination, but the regulator has to enforce those laws for it to matter. The FCC can also address this problem, but only after it reverses the federal deregulation that occurred in 2017 when it repealed net neutrality as part of the Restoring Internet Freedom Order. When broadband carriers are required to operate in a non-discriminatory manner (as required if we treat them as common carriers), it is much more than net neutrality, it is about how they deliver access infrastructure to the public as well. Until then, it will be on states and local governments to address this problem.

Localism in Broadband and Investments in Fiber Will Be How We Get 21st Century Access to All People 

If the large national carriers are ill-equipped to take on the societal challenge of connecting everyone to robust 21st-century ready access to the Internet, then we need to explore our alternatives and to rethink the government’s approach. The most promise appears to come from smaller, locally-held private and public entities who can take on long term patient investments without being subject to Wall Street fast profit expectations. Such entities are deploying fiber where national carriers have long ignored and are building the 21st century in areas previously left behind such as a Missouri cooperative United Fiber delivering fiber to the home at a density of only 2.5 people per square mile or the joint venture between Alabama Power (the state’s electric utility) and Mississippi’s C-Spire to deliver fiber to the home throughout the state of Alabama.

New models of delivering access are proving success such as Utah’s multi-city open access fiber, which has lowered the barrier of entry so much that more than a dozen small businesses can sell broadband services over the public network. When the pandemic hit, the network continued to expand within the state with new cities being announced on a regular basis as the need for high-speed access has exploded. And in places where fiber is already built, extraordinary opportunities are available to help low-income families such as Chattanooga’s free 10 year 100/100 mbps Internet offering with only $2.50 per student per month in charitable giving. 

If your community builds a highly efficient future proof network, things like free Internet access checked out at your local library with a little bit of government support become feasible, making it incumbent on every community to start figuring out how they’ll get it for themselves because by the year 2020 it should be clear the large nationals ISPs are not coming. To this extent, EFF will be supporting California legislation, SB 4, that would enable local communities to invest more than 1 billion dollars in public networks through bonds. And we will continue to support a national solution as proposed by Majority Whip James Clyburn’s Affordable, Accessible Internet for All, which establishes a universal fiber program that would completely eliminate the digital divide for this generation and the next. The federal legislation already passed the House of Representatives, but was not considered by the sitting United States Senate majority. We hope, given that broadband is as important as water and electricity today, that the Senate will move forward on a national broadband infrastructure package in 2021. The only reason the digital divide remains in 2020 is because too many in government willfully allowed it to continue.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2020.

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competition Intelwars Legislative Analysis net neutrality

The FCC’s Independence and Mission Are at Stake with Trump Nominee

When there are only five people in charge of a major federal agency, the personal agenda of even one of them can have a profound impact. That’s why EFF is closely watching the nomination of Nathan Simington to the Federal Communications Commission (FCC).

Simington’s nomination appears to be the culmination of a several-month project to transform the FCC and expand its purview in ways that threaten our civil liberties online. The Senate should not confirm him without asking some crucial questions about whether and how he will help ensure that the FCC does the public interest job Congress gave it, which is to expand broadband access, manage the public’s wireless spectrum to their benefit, and protect consumers when they use telecommunications services.

There’s good reason to worry: Simington was reportedly one of the legal architects behind the president’s recent executive order seeking to have the FCC issue “clarifying” regulations for social media platforms. The executive order purports to give the FCC authority to create rules to which social media platforms must adhere in order to enjoy liability protections under Section 230, the most important law protecting our free speech online. Section 230 protects online platforms from liability for the speech of their users, while protecting their flexibility to develop their own speech moderation policies. The Trump executive order would upend that flexibility. 

As we’ve explained at length, this executive order was based on a legal fiction. The FCC’s role is not to enforce or interpret Section 230; its job is to regulate the United States’ telecommunications infrastructure: broadband, telephone, cable television, satellite, and all the various infrastructural means of delivering information to and from homes and businesses in the U.S. Throughout the Trump administration, the FCC has often shirked that duty—most dramatically, by abandoning any meaningful defense of net neutrality. Simington’s nomination seems to be an at-the-buzzer shot by an administration that’s been focused on undermining our protections for free speech online, instead of upholding the FCC’s traditional role of ensuring affordable access to the Internet and other communications technologies, and ensuring that those technologies don’t unfairly discriminate against specific users or uses.

The FCC Is Not the Speech Police—And Shouldn’t Be

Let’s take a look at the events leading up to Simington’s nomination. Twitter first applied a fact-check label to a tweet of President Trump’s in May, in response to his claims that mail-in ballots were part of a campaign of systemic voter fraud. As a private company, Twitter has the First Amendment right to implement such fact-checks, or even to choose not to carry someone’s speech for any reason.

The White House responded with its executive order that, among other things, directed the FCC to draft regulations that would narrow the Section 230 liability shield. As a result, it perverted the FCC’s role: it’s supposed to be a telecom regulator, not the social media police.

The White House executive order reflects a long-running (and unproven) claim in conservative circles that social media platforms are biased against conservative users. Some lawmakers and commentators have even claimed that their biased moderation practices somehow strip social media platforms of their liability protections under Section 230. As early as 2018, Sen. Ted Cruz incorrectly told Facebook CEO Mark Zuckerberg that in order to be shielded by 230, a platform had to be a “neutral public forum.” In the years since then, members of Congress have introduced multiple bills purporting to condition platforms’ 230 immunity on “neutral” moderation policies. As we’ve explained to Congress, a law demanding that platforms moderate speech in a certain way would be unconstitutional. The misguided executive order has the same inherent flaw as the bills: the government cannot dictate online platforms’ speech policies.

It’s not the FCC’s job to police social media, and it’s also not the president’s job to tell it to. By design, the FCC is an independent agency and not subject to the president’s demands. But when Republican FCC commissioner Michael O’Rielly correctly pointed out that government efforts to control private actor speech were unconstitutional, he was quickly punished. O’Rielly wrote [pdf], “the First Amendment protects us from limits on speech imposed by the government – not private actors – and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way.” The White House responded by withdrawing O’Rielly’s nomination and nominating Simington, one of the drafters of the executive order.

During a transition of power, it’s customary for independent agencies like the FCC to pause on controversial actions. The current FCC has so far adhered to that tradition, only moving forward items that have unanimous support. Every item the FCC has voted on since the election had the support of the Chair, the other four commissioners, and industry and consumer groups. For example, the FCC has moved forward on freeing up of 5.9 Ghz spectrum for unlicensed uses, a move applauded by EFF and most experts. But we worry that in nominating Simington, the administration is attempting to pave the way for a future FCC to go far beyond its traditional mandate and move into policing social media platforms’ policies. We’re glad to see Fight for the Future, Demand Progress, and several other groups rightfully calling on the Senate to not move forward on Nate Simington’s nomination.

The FCC’s Real Job Is More Important Than Ever 

There’s no shortage of work to do within FCC’s traditional role and statutory mandate. The FCC must begin to address the pressure test that the COVID-19 pandemic has posed to the U.S. telecommunications infrastructure. Much of the U.S. population must now rely on home Internet subscriptions for work, education, and socializing. Millions of families either have no home Internet access at all or lack sufficient access to meet this new demand. The new FCC has a monumental task in front of itself. 

During his Senate confirmation hearing, Simington gave no real indication on how he plans to work on the real issues facing the agency: broadband access, remote school challenges, spectrum management, improving competition, and public safety rules, for example. The only things we learned from the hearing are that he plans to continue the Trump-era policy of refusing to regulate large ISPs and that he refuses to recuse himself from decisions on the misguided executive order that he helped write. Before the Simington confirmation hearing started, Trump again urged Republicans to quickly confirm his nominee on a partisan basis.

In response, Senator Richard Blumenthal called for a hold on Simington’s nomination, indicating real concern for the FCC’s independence from the White House. That means the Senate would need to bypass his filibuster if it truly wanted to confirm Trump’s nominee.

Sen. Blumenthal’s concerns are real and important. President Trump effectively fired his own commissioner (O’Rielly) for expressing basic First Amendment principles. Before it confirms Simington, the Senate ought to consider what the nomination means for the future of the FCC. As the pandemic continues to worsen, there are too many mission critical issues for the FCC to tackle for it to continue with Trump’s misguided war on Section 230.

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Intelwars net neutrality News Update

Broad Coalition Urges Court Not to Block California’s Net Neutrality Law

After the federal government rolled back net neutrality protections for consumers in 2017, California stepped up and passed a bill that does what FCC wouldn’t: bar telecoms from blocking and throttling Internet content and imposing paid prioritization schemes. The law, SB 822, ensures that that all Californians have full access to all Internet content and services—at lower prices.

Partnering with the ACLU of Northern California and numerous other public interest advocates, businesses and educators, EFF filed an amicus brief today urging a federal court to reject the telecom industry’s attempt to block enforcement of SB 822. The industry is claiming that California’s law is preempted by federal law—despite a court ruling that said the FCC can’t impose nationwide preemption of state laws protecting net neutrality.

Without legal protections, low-income Californians who rely on mobile devices for internet access and can’t pay for more expensive content are at a real disadvantage. Their ISPs could inhibit full access to the Internet, which is critical for distance learning, maintaining small businesses, and staying connected. Schools and libraries are justifiably concerned that without net neutrality protections, paid prioritization schemes will degrade access to material that students and public need in order to learn. SB 822 addresses that by ensuring that large ISPs do not take advantage of their stranglehold on Californians’ Internet access to slow or otherwise manipulate Internet traffic.

The large ISPs also have a vested interest in shaping Internet use to favor their own subsidiaries and business partners, at the expense of diverse voices and competition. Absent meaningful competition, ISPs have every incentive to leverage their last-mile monopolies to customers’ homes and bypass competition for a range of online services. That would mean less choice, lower quality, and higher prices for Internet users—and new barriers to entry for innovators. SB 822 aims to keep the playing field level for everyone.

These protections are important all of the time, but doubly so in crises like the ones California now faces: a pandemic, the resulting economic downturn, and a state wildfire emergency. And Internet providers have shown that they are not above using emergencies to exploit their gatekeeper power for financial gain. Just two years ago, when massive fires threatened the lives of rescuers, emergency workers, and residents, the Santa Clara fire department found that it’s “unlimited” data plan was being throttled by Verizon. Internet access on a vehicle the department was using to coordinate its fire response slowed to a crawl. When contacted, the company told firefighters that they needed to pay more for a better plan.

Without SB 822, Californians – and not just first responders – could find themselves in the same situation as the Santa Clara Fire Department: unable, thanks to throttling or other restrictions, to access information they need or connect with others. We hope the court recognizes how important SB 822 is and why the telecom lobby shouldn’t be allowed to block its enforcement.

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competition Intelwars Legislative Analysis net neutrality

California’s Assembly May Do Nothing to Help on Broadband—Thanks to Big ISPs

As the final hours of the California legislative session tick down, it appears that the California Assembly may decide to not move forward on S.B. 1130 or any other legislative deal to start addressing the digital divide this year.

There has been broad support for legislation to close the digital divide: from rural and urban representatives in the California Senate, from small businesses and consumer advocates, and from the governor’s office. But big Internet Service Providers (ISPs) oppose any and all such plans, from boosting local communities’ ability to bond finance fiber, to extending financing for infrastructure to areas that the major ISPs have ignored through a tiny fee that the ISPs already pay. In fact, they have opposed virtually every idea that would challenge their slow, non-broadband Internet monopoly profits just as strongly as every effort to connect the completely unserved. And that opposition from big ISPs appears to have been too much for the California Assembly to ignore.

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California: Call On Your AssemblyMember To Act on Broadband Now

This is despite all the suffering people are enduring from a lack of universal access to robust Internet connections during the pandemic. Our Assembly appears unwilling to stand up for all the parents who are trying to work through the pandemic, while also educating their kids remotely.  Instead, they’re bowing to the very companies that have actively caused that pain through systemically underinvesting in neighborhoods across the state while simultaneously reaping billions in profits from your monthly bills. By pressuring the California Assembly to literally do nothing during the crisis, large national ISP lobbyists are on the verge of winning arguably one of the biggest legislative victories in decades.

The people hurting most right now will pay the greatest price. We are regularly seeing photos of children having to do their school work in fast food restaurant parking lots because they can’t get a connection at home. Everyone knows this is a serious problem that warrants a serious response. As former State Senator Kevin De Leon remarked, this generation deserves better. California’s children deserve better.

Two students sit outside a Taco Bell fast food restaurant to gain access to the restaurant's Internet.

From https://twitter.com/kdeleon/status/1299386969873461248

There is no question that the major national ISPs have systemically avoided building modern connections to low-income neighborhoods in cities. Their fiber deployment decisions of high-speed access, dating back more than a decade, are now causing active harm to communities of color. These decisions force children from their homes to fast food restaurant parking lots to pursue their education—because, of course, those same ISPs happily built fiber infrastructure to those fast food mega-corporations. There is no defensible argument that supports this racially discriminatory digital redlining. Yet the California Assembly, facing this evidence, may opt to do nothing about it.

Doing nothing also means choosing to leave millions in rural communities behind. Slow Internet monopolies who make billions selling inferior, obsolete services to rural Californians have denied those communities adequate service for even longer.  More than 2 million Californians rely on the now-bankrupt Frontier Communications for access to the Internet. Frontier, which in its filings to the government, revealed that millions of its customers could have been profitably upgraded to fiber. But, with its slumlord mentality, Frontier opted to pocket those investments for greater profits for as long as possible, until the house of cards collapsed. And it’s not the business executives that profited handsomely from this exploitation that are trapped inside that house. It’s rural Californians.

Shame is the only word that can describe the collective inaction of the California Assembly. It is a shame the Assembly is choosing to leave their fellow Californians behind—despite support for forward-thinking broadband plans from the California Senate, and from the Governor of California. It is a shame that the pandemic has not prompted a deeper realization among the Assembly that people need help. And it is a shame they will not recognize that government policy and money are the means to provide that help.

We have tried the private-only model for decades now, and we are living with the result today. There is no question: it has not worked. If you are in California and you think our legislature shouldn’t close for the year before taking decisive action on broadband access, call them now. They have the solutions in hand, and both the California Senate and Governor are willing to act. The Assembly just has to be willing to say no to Big ISPs and vote yes on a better future.

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California: Call On Your AssemblyMember To Act on Broadband Now

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Content Blocking free speech Intelwars net neutrality Social Networks

The Executive Order Targeting Social Media Gets the FTC, Its Job, and the Law Wrong

This is one of a series of blog posts about President Trump’s May 28 Executive Order. Other posts are here, here, and here.

The inaptly named Executive Order on Preventing Online Censorship seeks to insert the federal government into private Internet speech in several ways. In particular, Sections 4 and 5 seek to address possible deceptive practices, but end up being unnecessary at best and legally untenable at worst.

These provisions are motivated in part by concerns, which we share, that the dominant platforms do not adequately inform users about their standards for moderating content, and that their own free speech rhetoric often doesn’t match their practices. But the EO’s provisions either don’t help, or introduce new and even more dangerous problems.

Section 4(c) says, “The FTC (Federal Trade Commission) shall consider taking action, as appropriate and consistent with applicable law, to prohibit unfair or deceptive acts or practices in or affecting commerce, pursuant to section 45 of title 15, United States Code. Such unfair or deceptive acts or practice may include practices by entities covered by Section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.”

Well, sure. Platforms should be honest about their restriction practices, and held accountable when they lie about them. The thing is, the FTC already has the ability to “consider taking action” about deceptive commercial practices.

But the real difficulty comes with the other parts of this section. Section 4(a) sets out the erroneous legal position that large online platforms are “public forums” that are legally barred from exercising viewpoint discrimination and have little ability to limit the categories of content that may be published on their sites. As we discuss in detail in our post dedicated to Section 230, every court that has considered this legal question has rejected it, including recent decisions by U.S. District Courts of Appeal for the Ninth and D.C. Circuits. And for good reason: treating social media companies like “public forums” gives users less ability to respond to misuse, not more.

Instead, those courts have correctly adopted the rule on editorial freedom from the Supreme Court’s 1974 decision in Miami Herald Co. v Tornillo. In that case, the court rejected strikingly similar arguments—that the newspapers of the day were misusing their editorial authority to favor one side over the other in public debates and that government intervention was necessary to “insure fairness and accuracy and to provide for some accountability.” Sound familiar?

The Supreme Court didn’t go for it: the “treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

The current Supreme Court agrees. Just last term, in Manhattan Community Access v Halleck, the Supreme Court affirmed that the act of serving as a platform for the speech of others did not eliminate that platform’s own First Amendment right to editorial freedom.

But the EO doesn’t just get the law wrong—it wants the FTC to punish platforms that don’t adhere to the erroneous position that online platforms are “public forums” legally barred from editorial freedom. Section 4(d) commands the FTC to consider whether the dominant platforms are inherently engaging in unfair practices by not operating as public forums as set forth in Section 4(a). This means that a platform could be completely honest, transparent, and open about its content moderation practices but still face penalties because it did not act like a public forum. So, platforms have a choice—take their guidance from the Supreme Court or from the Trump administration.

Additionally, Section 4(b) refers to the White House’s Tech Bias Reporting Tool launched last year to collect reports of political bias. The EO states that 16,000 reports were received and they will be forwarded to the FTC. We filed a Freedom of Information Act (FOIA) request with the White House’s Office of Science and Technology Policy for those complaints last year and wer told that that office had no records (https://www.eff.org/document/eff-fioa-request-tech-bias-story-sharing-tool).

Section 5 commands the Attorney General to convene a group to look at existing state laws and propose model state legislation to address unfair and deceptive practices by online platforms. This group will be empowered to collect publicly available information about: how platforms track user interactions with other users; the use of “algorithms to suppress political alignment or viewpoint”; differential policies when applied to the Chinese government; reliance on third-party entities with “indicia of bias,” and viewpoint discrimination with respect to user monetization. To the extent that this means that decisions will be made based on actual data rather than anecdote and supposition, that is a good thing. But given this pretty one-sided list, there does seem to be a predetermined political decision the EO wants to reach, and the resulting proposals that come out of this may create yet another set of problems.

All of this exacerbates a growing environment of legal confusion for technology and its users that bodes ill for online expression. Keep in mind that “entities covered by section 230” describes a huge population of online services that facilitate online user communication, from Wikimedia to the Internet Archive to the comments section of local newspapers. However you feel about Big Tech, rest assured that the EO’s effects will not be confined to the small group of companies that can afford to navigate these choppy waters.

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Content Blocking free speech Intelwars net neutrality Section 230 of the Communications Decency Act Social Networks

Trump’s Executive Order Seeks To Have FCC Regulate Platforms. Here’s Why It Won’t Happen

This is one of a series of blog posts about President Trump’s May 28 Executive Order. Other posts are here and here.

The inaptly named  Executive Order on Preventing Online Censorship seeks to insert the federal government into private Internet speech in several ways. Through Section 2 of the Executive Order (EO), the president has attempted to demand the start of a new administrative rulemaking. Despite the ham-fisted language, such a process can’t come into being. No matter how much someone might wish it.

The EO attempts to enlist the Secretary of Commerce and Attorney General to draft a rulemaking petition with the Federal Communications Commission (FCC) that asks it  that independent agency to interpret 47 U.S.C. § 230 (“Section 230”), a law that underlies much of the architecture for the modern Internet.

Quite simply, this isn’t allowed.

Specifically, the petition will ask the FCC to examine:

“(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;

“(ii)  the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:

“(A)  deceptive, pretextual, or inconsistent with a provider’s terms of service; or

“(B)  taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard; and

“(iii)  any other proposed regulations that the NTIA concludes may be appropriate to advance the policy described in subsection (a) of this section.”

There are several significant legal obstacles to this happening.

First, the Federal Communications Commission (FCC) has no regulatory authority over the platforms the President wishes the agency to regulate. The FCC is a telecommunications/spectrum regulator and only the communications infrastructure industry (companies such as AT&T, Comcast, Frontier as well as airwaves) are subject to the agency’s regulatory authority. This is the position of both the current, Trump-appointed FCC Chair as well as the  courts that have considered the question.

In fact, this is why the issue of net neutrality is legally premised on whether or not broadband companies are telecommunications carriers. While that question, whether broadband providers are telecommunications carriers under the law, is one where we disagree with current FCC leadership, neither this FCC nor any previous one has taken the position that social media companies are telecommunications carriers. So to implement regulations targeting social media companies, the FCC would have to explain how—under what legal authority—it is allowed to issue regulations aimed at social media companies. We don’t see it doing so.  

But say the FCC ignores this likely fatal flaw and proceeds anyway. The EO triggers a long and slow process which is unlikely to be completed, much less one that results in an enforcement action, this year. That process will involve a Notice of Proposed Rules (NPRM), with the FCC issuing a statement explaining its rationale for regulating these companies, what authorities it has to regulate them, and the possible regulations the FCC intends to produce. The commission must then solicit public comment in response to its statement.

The process also involves public comment periods and agreement by a majority of FCC Commissioners on the regulations they want to issue. Absent a majority, nothing can be issued and the proposed regulations effectively die from inaction. If a majority of FCC Commissioners do agree and move forward, a lawsuit will inevitably follow to test the legal merits of the FCC’s decision, both on whether the government followed the proper procedures in issuing the regulation and whether it has the legal authority to issue rules in the first place.

Needless to say, the EO has initiated a long and uncertain process. Certainly one that will not be completed before the November election, if ever.

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Intelwars net neutrality

New York State Legislator Introduces a Very Bad “Net Neutrality” Bill

In 2018, California established the gold standard of what states should be doing on net neutrality by passing a model law for other states to copy. So, naturally, that makes the job of any legislator truly interested in protecting net neutrality pretty easy: just copy and paste. But that did not happen in New York’s state legislature this week. State Senator Kevin Parker, the Senate Telecommunications Chairman, has instead introduced S. 8020; legislation that not only ignores critical net neutrality issues such as zero rating, but it would legalize paid prioritization by Internet Service Providers (ISPs).

Zero Rating Harms Low Income Users and Makes Everyone’s Broadband More Expensive

Wireless ISPs eager to shape user traffic and give an anti-competitive advantage to their own content offerings engage in zero rating—the practice of exempting content chosen by ISPs from counting toward an account’s data cap. The Federal Communications Commission in the final days before the repeal effort of net neutrality began taking extraordinary steps to shut down investigations into ISP practices and rescind government findings that the zero-rating practices of AT&T had, in fact, violated the 2015 Open Internet Order.

When the fight to restore net neutrality came to California, organizations that advocate for the interest of low-income people fought hard to protect low-income users with zero-rating protections in the law. In hopes of preserving their anti-competitive conduct, AT&T issued phony studies about how zero rating was good for people and then later resorted to robocalling senior citizens about rising phone bills if the state passed net neutrality. But legislators in Sacramento saw through the ruse and enacted these protections. But, here’s the thing: zero-rating protections don’t only help low income users, they actually lower everyone’s wireless broadband bills. A comprehensive study in the EU that compared wireless broadband bills before and after countries prohibited discriminatory zero-rating practices found that countries with protections like California’s had lower bills. Not only that, Internet competition also improved. Without these protections, only large tech companies could engage zero-rating negotiations with several ISPs, hurting smaller technology companies that lacked the resources to strike multiple deals.

Paid Prioritization is Inherently Anti-Competitive and Favors Large Internet Companies

Paying the ISP to speed up your traffic—and effectively slow down their rivals—was categorically illegal under the 2015 Open Internet Order, and for good reason. But S. 8020 would give ISPs the right to engage in paid prioritization as long as the company believes it is good for Internet users. But there is no scenario, ever, that would justify allowing an ISP that is already compensated from user subscription fees such as your monthly cable bill, to pad their profits by giving preferential treatment to whichever companies pay them the most. Paid prioritization not only yields no discernible benefit to Internet users, it also advantages large corporations over small businesses, non-profits, and educational institutions unable to engage in a pay-to-play scheme.

So why legalize it?

It’s possible that the senator has bought into the myths ISPs like to share in favor of paid prioritization, such as claims that it is necessary for remote surgery (it isn’t) or that Content Delivery Networks (CDNs) are the same thing as ISPs. (They aren’t.) What is true is that far too many Americans are stuck behind monopoly access for their high-speed broadband choices, and that the future is leading towards more monopolization, not less. Giving companies that sell you an essential service the legal license to distort your Internet experience so they can  extract rents from large Internet companies and disadvantage smaller Internet companies has no redeeming value. Arguably, the biggest lie the ISPs tell state legislatures is that they do not make enough money to pay for delivering broadband and therefore must charge Internet companies new fees. But it’s been nearly a decade since the cost of delivering one hour of HD video declined to less than a penny—a cost that’s continued to drop as network technologies improved. In other words, arguments in favor of additional fees are wholly unsupported by fact, and are merely the rent-seeking behavior of monopolists. 

We are disappointed to see these behaviors promoted by S. 8020, and call on the state of New York to back a real net neutrality bill—one that protects consumers and promotes innovation, rather than one that protects the interests of powerful incumbents looking to pad their pockets.

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Intelwars net neutrality open access

Coalition Asks California’s Governor Newsom to Support Fiber Broadband for All

The Electronic Frontier Foundation recently joined several California-based ISPs, tech companies, non-profits, and local governments to commend Governor Newsom for adopting a “Broadband for All” vision. But simply saying “broadband” without a clear eye towards the future risks having government policies adopt infrastructure plans that work in the short run, but fall woefully behind as the demand for data continues to increase. In order to ensure California’s Broadband for All plan is future-proofed, the coalition asked the Governor to focus on fiber infrastructure and adopt open access provisions that ensures state-funded infrastructure can be used to its maximum potential.

Focusing on Fiber Infrastructure Today Will Ensure State Policy Avoids the “Speed Chasm” and Addresses the Digital Divide

EFF has conducted extensive research into the future capabilities of various broadband access technologies that connect to our homes and businesses. These “last-mile” connections come in many forms such as copper line DSL, coaxial cable, fiber optics, and wireless options—including upcoming 5G networks. The evidence is conclusive that fiber is the superior medium for the transmission of data, thanks to its low latency, long lifespan, and its cost-efficient means to upgrade. These attributes mean it’s effectively future-proofed infrastructure. When it comes to speed, the divide amongst last-mile technologies is so great that it should be referred to as the “speed chasm.”

Yet California’s broadband program remains woefully out of date with the antiquated conclusion that DSL broadband can meet 21st century needs. It leaves virtually no capability for the program to support fiber infrastructure. And it has no plan to ensure that state-financed broadband is capable of being upgraded well into the future. Arguably, any broadband supported by the program today at such a low standard simply sets communities up to fail, as they race toward the speed chasm while other communities with fiber access march toward the multi-gigabit era of broadband access.

Open Access Policies are Flexible and Carry Great Promise

The concept of open access is straight forward. Fiber infrastructure has tremendous capacity to share infrastructure with many different kinds of users. These could be other broadband companies (including wireless ISPs), cloud computing, or even niche scientific endeavors such as earthquake detection. If the state is going to invest taxpayer funds into any type of infrastructure, it should ensure that it is accessible to multiple users. Such policies should also be flexible enough to reflect the financial needs on the ground. By building capacity, the state can use the infrastructure to support uses that may come in the future, and build on top of it to further the goal of connecting all residents. In essence, that is the Utopia fiber model that is expanding in Utah, where 11 local governments banded together to build fiber for all their residents, and allow private services to utilize the capacity.

Not every fiber infrastructure challenge can be solved with the same open access solution. In many cities, the broadband digital divide is felt most by low-income neighborhoods and communities of color who have been bypassed by incumbent carriers. To remedy this problem, New York City proposes simply deploying open access fiber into neglected communities to lower the barrier for affordable options to be launched to serve their needs. In rural parts of the state, an open access solution may be more limited to supporting wireless services, as it is likely that most of the provisioning of broadband service will come from local community efforts. For example, rural cooperatives have been proven as an instrumental means of bringing fiber to hard-to-serve rural markets. Historically, these entities were how rural people got their electricity and telephone service—fiber broadband is no different, as an infrastructure challenge. Even better, as long as those fiber lines are accessible, they can be leveraged by 5G providers who wish to deliver complementary wireless services.

With the right policies, Gov. Newsom can be a leader in closing the digital divide and ensuring fast, reliable connections for all Californians. We applaud the governor for making this a priority. The first step to a true “Broadband for All” plan would be to ensure the funding mechanisms that the state deploys are focused on fiber infrastructure, and not the technologies of the past.

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