Net neu­tral­ity: Back from the dead

Tampa Bay Times - - Opinion - APRIL GLASER April Glaser is a tech­nol­ogy writer and co-hosts the pod­cast If Then.

Thanks to the Fed­eral Com­mu­ni­ca­tions Com­mis­sion, net­work neu­tral­ity pro­tec­tions are about to be dead. But how dead is still an open ques­tion.

On Wed­nes­day, af­ter Democrats forced a vote, the Se­nate nar­rowly passed a res­o­lu­tion that would re­store the Oba­maera net neu­tral­ity rules, which pro­hib­ited in­ter­net providers like Com­cast, Fron­tier, Spec­trum and AT&T from block­ing or throt­tling ac­cess to web­sites, mak­ing web­sites pay a fee to ac­cess users at faster speeds, or par­ti­tion­ing off parts of the in­ter­net from some users. In De­cem­ber, the FCC voted to re­scind those rules, this de­spite mil­lions of com­ments from the pub­lic, the vast ma­jor­ity of which were in fa­vor of up­hold­ing the in­ter­net pro­tec­tions. And last week the FCC shared that the net neu­tral­ity re­peal will of­fi­cially be pub­lished on the fed­eral regis­ter, putting the new rules into effect, on June 11.

Once that hap­pens, all in­ter­net providers have to do to start block­ing web­sites or throt­tling the speed of some web­sites to be slower than oth­ers is to add a pro­vi­sion to their terms of ser­vice say­ing that they “re­serve the right” to do what­ever they want. That’s be­cause the new rules only re­quire in­ter­net providers to dis­close their net­work man­age­ment prac­tices. While it’s un­likely that any­thing will change overnight on June 11, keep an eye out for new terms of ser­vice from your in­ter­net provider.

On Wed­nes­day, ev­ery Se­nate Democrat, along with three Repub­li­cans, Sens. Su­san Collins of Maine, Lisa Murkowski of Alaska and John Kennedy of Louisiana, voted to pass a Con­gres­sional Re­view Act res­o­lu­tion, which is used to over­turn or elim­i­nate an agency’s ac­tion. “It was a fairly close call, but I’ll tell you what it comes down to: the ex­tent to which you trust your ca­ble com­pany,” Kennedy told the Washington Post mo­ments af­ter cast­ing his vote. This type of mea­sure is some­thing con­gres­sional Repub­li­cans are quite fa­mil­iar with. Since Don­ald Trump won the 2016 elec­tion, Congress has worked to re­verse more than a dozen reg­u­la­tory ac­tions — but those were rules passed un­der Pres­i­dent Barack Obama. To en­act one of these resolutions, a sim­ple ma­jor­ity is re­quired in both the Se­nate and the House, fol­lowed by the pres­i­dent’s sig­na­ture.

Now that this res­o­lu­tion has cleared the Se­nate it heads to the House, where Repub­li­cans out­num­ber Democrats 236- 193, mean­ing at least 20 Repub­li­cans would have to get on board if ev­ery Democrat voted in fa­vor. It’s a long­shot — but it’s not im­pos­si­ble.

While a con­gres­sional re­ver­sal would be a stretch, what’s more likely to hap­pen is that the de­cid­ing skir­mish in the ef­fort to re­store the pro­tec­tions will oc­cur in the courts. Mul­ti­ple groups — like the pro-net neu­tral­ity ad­vo­cates Free Press, the Na­tional His­panic Me­dia Coali­tion, and a group of 22 state at­tor­neys gen­eral — have vowed to file to law­suits against the FCC over what they claim was a cor­rupt rule­mak­ing process.

They may have a point — the process that led up to the re­peal of net neu­tral­ity was pretty shady. Although the FCC col­lected more than 23 mil­lion com­ments — the most pub­lic par­tic­i­pa­tion on any is­sue in the his­tory of the agency — many of those com­ments were faked, is­sued us­ing stolen iden­ti­ties, or filed by bots, not peo­ple. Some were even filed us­ing the names of dead peo­ple. Hundreds of thou­sands were filed us­ing Rus­sian email ad­dresses, and those ones were mostly in fa­vor of re­scind­ing the in­ter­net rules.

The FCC’s elec­tronic pub­lic in­put sys­tem was even hit last year by a mys­te­ri­ous cy­ber­at­tack, which is sub­ject to an on­go­ing fed­eral in­ves­ti­ga­tion. The FCC is le­gally re­quired to en­gage in a fair process for so­lic­it­ing com­ments from the pub­lic, which is sup­posed to be used to guide the agency’s non­elected com­mis­sion­ers to act in the in­ter­est of the pu­bic when mak­ing pol­icy. And with so many se­ri­ous blun­ders cloud­ing the com­ment pe­riod, there’s a strong case to be made that the FCC’s de­ci­sion to carry on with the re­peal wasn’t above board.

Be­tween now and June 11, ex­pect a flurry of cam­paigns from ad­vo­cacy groups and in­ter­net com­pa­nies to get mem­bers of the House on board with the res­o­lu­tion to over­turn the FCC’s de­ci­sion to undo net­work neu­tral­ity pro­tec­tions. Sites like Red­dit, Etsy, OKCupid, Porn­hub and oth­ers all recently par­tic­i­pated in a cam­paign to urge sen­a­tors to pass the res­o­lu­tion.

While it would be an im­pres­sive lift for House Democrats to gar­ner enough votes needed to pass the res­o­lu­tion, the Se­nate’s efforts will cer­tainly keep the is­sue in the pub­lic eye. And that’s im­por­tant with the midterms right around the cor­ner. We know mil­lions care about net neu­tral­ity. It may be yet an­other is­sue they keep in mind in Novem­ber when they head to the polls.

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