Susan Crawford

[Commentary] Is our government bound by the rule of law or the rule of President Trump? The Department of Justice's Antitrust Division must consider this question. Here's why. There is a two-part, simple legal standard for deciding whether the proposed combination of Sprint and T-Mobile should be allowed. Would it harm competition in such a way that consumers would suffer?

[Commentary] One phrase that keeps being tossed around: "Facebook should be treated like a utility." The idea is that the use of Facebook has become effectively essential to modern life, and therefore it should be regulated just like water or electricity. Let's get this right: Facebook is not a utility. It is an app. It may be a dominant app. It may even be exercising monopoly power unfairly. But it is not a utility, and muddying the definitional waters this way will only help the real utilities—like Comcast, Spectrum, AT&T, Verizon, and CenturyLink—avoid genuine oversight.

[Commentary] The solution to the country’s digital divide isn’t going to come from private-market competition, but rather from massive government mobilization. Just don’t call it “nationalization.”

[Commentary] The internet, the mega-utility of the 21st century, officially has no regulator. In the meantime, fed up with federal apathy and sick of being held back by lousy internet access controlled by local cable monopolies, scrappy cities around the US are working hard to find ways to get cheap, world-class fiber-optic connectivity. But now there’s an additional obstacle: Powerful right-wing billionaires have joined the fight against municipal fiber efforts, using their deep pockets to fund efforts to block even the most commonsense of plans.

[Commentary] I’ve got bad news for everyone who is working overtime to protest Federal Communications Commission Chairman Ajit Pai’s campaign to eliminate net neutrality: You are being tricked. Pai is running a kind of shell game, overreaching (“go ahead and run all the paid prioritization services you want, Comcast!”) so that we will focus our energies on the hard-to-pin-down concept of net neutrality—the principle of internet access fairness that he has vowed to eliminate.

[Commentary] Despite what AT&T CEO Randall Stephenson thinks, the Department of Justice’s suit blocking AT&T from acquiring Time Warner’s assets in an $85 billion merger is a great moment for antitrust in America. It’s late, but it’s welcome.

[Commentary] The details of the network neutrality rules adopted by the Federal Communications Commission in February 2015 were not important to AT&T, Verizon, Comcast, Spectrum, or CenturyLink. What was important was the idea that any part of the government might have enforceable oversight over their data transmission services or charges. That’s what they can’t stand; that’s what they would do anything to avoid. And that’s what they are working to undo: the FCC’s classification of them as “common carriers” under “Title II” of the Telecommunications Act. That classification gave the FCC the legal authority to say something to the carriers about treating internet traffic fairly. No classification, no “net neutrality” rule. The trouble for the carriers is that the classification carries with it the risk that their businesses will be treated, someday, as the utility services they are. Net neutrality: not risky. Classification: risky. If people begin noticing that there’s no competition, that Americans are paying too much for too little, and that the entire country is suffering as a result, that’s a big problem for Big Cable.

[Commentary] Federal Communications Commission Chairman Ajit Pai wants to characterize this battle as one between “the people” (who love the internet) and “the government” (which, in his view, has been bossing “the people” around). But he’s missing a giant piece of the puzzle.

There are actually three players on the battlefield, not two: the people, the government, and particularly powerful private individuals. The whole idea behind the democratic enterprise is to keep the triangle balanced: not too strong a government, not too powerful a group of oligarchs, and plenty of opportunity for individuals. Chairman Pai is putting his thumb decidedly on the scale in favor of the oligarchs, and it’s a risky move.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School]

[Commentary] Here’s what we know about Federal Communications Commission Chairman Ajit Pai’s latest plans: He’s planning to erase the utility designation the Obama FCC re-applied to high-speed internet access carriers in February 2015 (following an unprecedented 10-year period of deregulation). In parallel, in an empty bid to pay lip service to the idea of an open internet, he wants to shift authority to the Federal Trade Commission...This move is not really about net neutrality: It’s about whether or not internet access is a utility rather than a luxury. If it’s a utility, it needs to be subject to rules, laid out in advance, about availability and quality. If it’s not, we’re saying we trust competition in the private market to protect consumers and ensure that everyone in the country gets world-class, open, nondiscriminatory internet access.

Chairman Pai is saying he trusts competition in the private marketplace. That’s nonsensical.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School]

[Commentary] Comcast, Charter (now Spectrum), Verizon, CenturyLink and AT&T account for over 80 percent of wired subscriptions and have almost total power in their territories. According to the Federal Communications Commission, nearly 75 percent of Americans have at most one choice for high-speed data. It’s about to get worse: President Trump’s Federal Communications Commission, under the leadership of its fiercely deregulatory chairman, Ajit Pai, wants to let these companies become even more powerful by letting them do whatever they want and allowing them to merge with one another.

Chairman Pai has already pushed Congress to erase rules that would have constrained these companies from using and selling our sensitive online information. And he is getting ready to wipe out the classification of high-speed data services as a utility — even though, without this legal label, the FCC’s authority to require these five companies to treat their customers fairly will be fatally undermined. Combining untrammeled power over distribution with must-have content gives a network operator both the incentive and the ability to use its network to benefit itself, whether or not its actions are good for the public. This has been true of communications networks from the telegraph forward, and we’re seeing this same pattern play out with high-speed internet access.

[Crawford is a professor at Harvard Law School]