Net Neutrality Oral Arguments and Responding to Terrorism

Submitted on December 11, 2015

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Robbie's Round-Up (December 7-11, 2015)

Network Neutrality Oral Arguments
The Federal Communications Commission’s latest attempt at network neutrality rules got a thorough review during three hours of oral arguments at the US Court of Appeals for the District of Columbia on December 4. (You can listen to a recording of the argument here.) The crux of this oral argument: Did Congress give deference to the FCC to choose how Internet service should be classified, and is the FCC’s decision to change course now justified?

Context
In February, the FCC approved net neutrality rules meant to ensure Internet service providers (ISPs), such as AT&T and Comcast, treat all Web traffic equally. To give itself authority to do that, the FCC reclassified Internet service as a “telecommunications service” under Title II of the Communications Act, rather than a less regulated “information service.” Twice before, the DC Circuit has thrown out attempts by the FCC to codify rules protecting an open Internet. If the agency loses again, it could be the death knell of the government’s effort to enshrine net neutrality protections in federal regulations.

As a packed courthouse and overflow room looked on, the three judges probed the following issues:

Statutory Authority for Reclassification
Lawyers representing ISPs argued the FCC could not reclassify Internet access as an information service, trying to distinguish this case from Brand X (a Supreme Court decision that found the definition of “telecommunications” is ambiguous and, therefore, the FCC has discretion as to whether to define broadband as Title II telecommunications service or a Title I information service). None of the Judges seemed sympathetic to the arguments from ISPs.

Extending Reclassification to Mobile Broadband
Industry lawyers argued the FCC violated the law when it extended its policy to cover wireless service because mobile Internet is not part of the “public switched network” that Congress originally instructed the FCC to regulate. Consumer advocates say the debate over mobile broadband led to "mixed results," but predicted a win overall in the end.

Paid Prioritization Ban
Judge Stephen Williams seemed clearly to have an issue with the FCC's ban on paid prioritization (when an ISP attempts to charge a Web site for faster service). He said that ban could wind up sweeping up harmless conduct, and seemed perturbed that the FCC had not responded to those who suggested there were less regulatory ways to achieve the same goal.

Including Interconnection Agreements
“Interconnection” in this case means the way by which different networks that comprise the Internet communicate with each other and “interconnect” to deliver e-mails and other data packets across the Web. The FCC was pushed fairly hard on its rationale for including interconnection issues under Title II while not reclassifying interconnection as a Title II service.

Providing Sufficient Notice of Changes
Critics argued that stakeholders were not in the loop about the definitional changes the FCC made ahead of time, in violation of the Administrative Procedures Act. Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation Andrew Schwartzman said, “The Court clearly had more problems with the application of Title II, but the point that seemed most interesting to the Court - notice - is one which wouldn't be fatal to the FCC. If the Court were to reverse on that, the FCC could conduct a new proceeding and do the same thing in the end."

First Amendment Rights of ISPs
The three-judge panel seemed unconvinced by ISPs’ arguments that net neutrality rules violate their First Amendment rights because the rules prevent carriers from editing users’ content.

Reaction and Next Steps
Most analysts felt the FCC looked likely to win on the question of statutory authority and the First Amendment challenges. Providing sufficient notice of changes, extending the rules to wireless, and the paid prioritization ban all were a little bit more mixed.

Gene Kimmelman, head of Public Knowledge, said the hearing was notable because while he has “heard many arguments of the commission before the court where they’ve been ripped apart,” this time “they were given sound support for using reclassification, which was the critical point.”

"Sometimes you walk out of an oral argument with a pretty good sense of which way the decision is going to go," said Randolph May, president of the Free State Foundation. "After witnessing the entire 3 hour argument, to my mind, this was not one of those cases."

Following Dec 4’s court hearing, the three-judge DC Circuit panel will likely deliberate for several weeks before issuing a ruling sometime early in 2016.

Response to Terrorism
The President
On December 6, four days after two gunmen killed 14 people in San Bernardino (CA), President Barack Obama addressed the nation on the subject of terrorism. In part, he asked Silicon Valley firms to work with US law enforcement authorities to prevent terrorists from using social media and encryption technologies. "I will urge high-tech and law enforcement leaders to make it harder for terrorists to use technology to escape from justice," he said. He also indicated that tech firms should help by restricting the use of social media for violent ends. “As the Internet erases the distance between countries,” President Obama said on Sunday, there are “growing efforts by terrorists to poison the minds of people like the Boston Marathon bombers and the San Bernardino killers.”

Congress
Senate Intelligence Committee Chairman Richard Burr (R-NC) and Vice Chairman Dianne Feinstein (D-CA) reintroduced the Requiring Reporting of Online Terrorist Activity Act, a bill to require technology companies to report online terrorist activity to law enforcement. This legislation was approved unanimously by the Senate Intelligence Committee in June as part of the annual intelligence authorization bill, but was later removed from the bill in order to allow the underlying legislation to move through the Senate.

House Homeland Security Committee Chairman Michael McCaul (R-TX) this week proposed a national commission on security and technology challenges in the digital age tasked with providing specific recommendations on how to deal with the proliferation of encrypted devices that critics say allow terrorists to communicate without detection. The effort would not force concessions on tech companies, he promised.

Leading Presidential Candidates
Hillary Clinton called for Silicon Valley to “disrupt” ISIS. Clinton said that ISIS is “using websites, social media, chat rooms and other platforms to celebrate beheadings, recruit future terrorists and call for attacks,” and asked Silicon Valley to crack down on the terror group. Some noted that Clinton is risking putting herself at odds with technology executives and entrepreneurs crucial to her campaign’s fundraising. And in Iowa and New Hampshire, states important early in the campaign, there is still considerable suspicion of the government and its demands for greater access to daily electronic communications.

Republican presidential candidate Donald Trump said the US should consider "closing up" the Internet to curb radical extremism. "We're losing a lot of people because of the Internet," Trump said. "We have to see Bill Gates and a lot of different people that really understand what's happening. We have to talk to them about, maybe in certain areas, closing that Internet up in some ways. Somebody will say, 'Oh freedom of speech, freedom of speech.' These are foolish people." It is not clear what Donald Trump actually meant when he conjured up the idea of getting Bill Gates to help “close up” the Internet. Perhaps, as John Markoff speculated for the New York Times, he should be for, “an anti-Islamic State wall -- a bit like China’s ‘Great Firewall’ that controls Internet traffic in and out of the country -- [it]would be the perfect companion to Trump’s proposal for a physical wall along the United States’ southern border.”

Silicon Valley
Technology companies face an increasingly difficult challenge in trying to shut down terrorist activity on social media sites. New accounts are created as earlier ones are shut down. Where and when to use discretion is increasingly complex. “Do you want Facebook looking at over 1.5 billion people’s posts?” said Zeynep Tufekci, an assistant professor in technology policy at the University of North Carolina at Chapel Hill. “And if so, then for what?” Facebook primarily relies on user reports to ferret out terrorist accounts, but, recently, it has gone further. If the company is informed of specific terrorist activity, Facebook will take down the account as well as others similar to the one reported.

When it comes to terrorists using encryption technologies to hide their communications -- a frequent complaint of law enforcement -- technology companies are quick to point out that of the top five encryption apps recommended by the Islamic State, none are American-made. As The San Jose Mercury News said in an editorial, “For Silicon Valley, it was especially frustrating to hear Obama's use of the terrorist attack by two people who never were on law enforcement's radar as an excuse to amp-up the call for government access to any and all Internet communications. “

Companies say that weakening the encryption in their products would only make regular users more vulnerable to cybertheft and set a bad precedent for other countries to follow.

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