Category Archives: Uncategorized

First Amendment Scholars Amicus Brief in the Net Neutrality Litigation (and others)

Larry Lessig and Yochai Benkler of Harvard, Jack Balkin of Yale, Barbara van Schewick of Stanford, and other legal scholars filed a brief in the net neutrality litigation yesterday that explains how the First Amendment applies to net neutrality rules. In short, the cable and phone companies do not have a First Amendment right to block websites or create fast lanes–and similar rules throughout telecom history did not trigger First Amendment scrutiny.

You can read that brief in combination with the brief by, Reddit, Squarespace, Twitter, Yelp, and Medium about the free speech interests on online speech platforms and a brief by Fordham law professor Zephyr Teachout, Penn State professor Sascha Meinrath, and thousands of Internet users, about users’ speech interests in order to get a rounded view of the free speech interests at play.

Of course, telecom and administrative law questions are paramount in this case. Tim Wu of Columbia wrote an excellent brief on telecom legal aspects and Mike Burstein of New York Law School wrote a no less excellent brief on the administrative law aspects. Those are worth reading, as are many other briefs filed yesterday.

President Obama Takes a Backseat To No One in His Support of Net Neutrality

So much awesome. Everyone should read his statement.

President Obama personally wrote the tweet to his statement.

3.9 million people have commented, and President Obama’s is a first among equals.

I earlier wrote a piece in Slate about Obama’s lack of comment, and then wrote that Obama clearly seemed to be in favor of strong net neutrality on Title II. Turns out he has now made himself crystal clear.

Question asked: “Consumer broadband” means Obama opposed the latest FCC “hybrid.” It’s real Title II, not some wishy washy compromise with the cable and phone giants who’ve been blitzing the FCC.

A Long List Already Opposes the FCC Trial Balloon

I published an article today in Slate explaining why the FCC’s most recent apparent direction on net neutrality will fail in court and hurt the open Internet.

I’m not alone. So far, there has been a lot of public opposition to the FCC’s latest trial balloon. The proposals are based partly on an idea put forward earlier in the year, so there has been a lot of commentary on it.

Tech companies have already come out.

  • Vimeo: FCC trial balloon is just a new version of the “flawed” rules from May only “this time around the FCC has taken the additional step of overcomplicating the matter.”
  • Tumblr….and other online startups like Vimeo and Etsy are strongly opposed to the hybrid proposal.”
  • Kickstarter: “Since this rumored proposal doesn’t embrace full reclassification and allows paid prioritization deals, it’s a non-starter. We — along with millions of Americans — strongly believe that the Internet is a public utility and should be treated as one.”


A major city.

  • City of Los Angeles:  Such a proposal “may mean that smaller and start-up edge providers are subject to significant discrimination.”

Digital rights groups, consumer groups, activists are opposed.

  • AARP:“proposals to leave the commercial relationship between ISPs and their subscribers as information services is not reasonable” and such a proposal only “proves the need for blanket reclassification.”
  • Fight for the Future delivered more than 75,000 signatures to President Obama calling for him to publicly support Title II reclassification and replace Tom Wheeler if he won’t.”
  • Free Press: “Chairman Wheeler can’t wave a wand, change the law, and pretend to break the Internet in two. But these schemes suggest just that: dividing the Internet to protect corporations sending information, but not the people receiving it.”
  • EFF: “is deeply concerned, however, that this ‘compromise’ risks too much, for too little”
  • MoveOn: “Wheeler’s new plan would ‘undermine’ net neutrality and ‘betray’ President Obama’s plans to ban ‘fast lanes.’”
  • ACLU: “Going with pure Title II, Chairman Wheeler will be pleasing the millions of people who called for reclassification. This hybrid proposal will please no one.”
  • New America’s Open Technology Institute: “the Federal Communications Commission (FCC) may be on the brink of not only undermining hope for strong, enforceable and legally sound network neutrality rules, but may also be taking steps that would ultimately disrupt the very principles that have governed the way the Internet has always worked.”
  • Engine Advocacy: “The legal approach that the FCC is considering is novel, untested, and conceptually complicated. The plan carries significant legal risk and could end up getting thrown out in court.”

A well-known net neutrality legal expert.

The carriers and their vendors don’t like it either. So the FCC’s apparent plan of appeasing the carriers–with a rule that’ll get struck down in court instead of one resting on straight-forward Title II–doesn’t seem to be working.

  • Comcast:
    • such a proposal would have a “fatal flaw by asserting that the ‘fee’ for this hypothesized edge-provider-facing service is the one paid by the ISP’s ‘local subscribers.’”
    • that “with the exception of a handful of interconnection agreements…broadband providers do not ‘offer’ anything ‘directly’ to edge providers….Indeed, that is precisely what many proponents of reclassification seem to believe Title II would prevent.”
    • Such a “decision may have much broader effects than direct reclassification” and “could have sweeping and unpredictable consequences, as it may well lead to the imposition of…Title II regulation on large swaths of the Internet ecosystem.”
  • USTelecom called the approach “byzantine” and said it “defies legal precedent and common sense.” The proposal “would be an invitation to protracted litigation,” and “would only guarantee continued uncertainty and debate well into the next administration.”
  • Verizon states such a proposal:
    • would mandate that edge providers pay a fee to broadband providers”, “face significant legal challenge and would be unlikely to withstand appeal”
    • would “require a radical unbundling of Internet access service into its component parts—with disastrous consequences for consumers forced to navigate the resulting confusion”
    • is “an unqualified disaster for the Internet community” and “would create a dangerous slippery slope that could implicate players throughout the Internet ecosystem.”
  • CTIA states:
    • that “the FCC should not be drawing artificial lines within the Internet that neither engineers nor end users recognize.”
    • that “the arbitrary lines….draw[n] between service to an edge provider and service to the end user do not exist in the real world.”
  • NCTA says:
    • such proposals “conflict with technical realities, and their preferred policy outcome (a ban on payments by edge providers for paid prioritization) is at odds with the statutory requirement that a telecommunications service be offered for a fee.”
    • that “even if the Commission were able to overcome the legal and factual barriers and create a contrived partial reclassification scheme, it could not simultaneously advance the proponents’ goal of precluding the imposition of fees on edge providers. Not only does the law not allow for the prohibition of such fees with respect to telecommunications services, but that is a required definitional element.”
    • that sender side proposals are “based on a gross misreading of Verizon decision”, “any attempt to accord differential regulatory treatment to “request” and “delivery” transmissions would make little sense as a practical matter”, “The nature of packet-switched communications the mechanism on which Internet Protocol communications are based, would render such distinctions utterly unworkable”, and “are riddled with fundamental factual and legal misconceptions and should be rejected”
  • Akamai said a sender side proposal “will do far more harm than good to the goal of an Open Internet.”
  • Cox Communications found that “such classification would be contrary to the text of Title II.”

Mozilla and Tim Wu, which initially proposed very different variants of the idea, believe straight-forward Title II is better.

  • Mozilla: “choosing between the two, we prefer reclassification as the simplest, cleanest path forward”
  • Wu: “I tend to think Title II is the simplest way of doing this. There could be other ways to combine regulatory authority. The Commission has a way to get too clever sometimes and trying to find a magic bullet approach … and when it gets to the courts it gets struck down. It’s important to be wary of getting too clever in order to please every constituency in Washington. When it comes to the courts, Title I, or Section 706, has always been a weaker authority.”

Support for Title II–the Only Sound Basis for Open Internet Rules

The following, along with  millions of commenters, have supported reclassifying broadband services under Title II in order to preserve net neutrality:
US President
  1. Ed Markey (MA)
  2. Barbara Boxer (CA)
  3. Bernie Sanders (VT)
  4. Charles Schumer (NY)
  5. Ron Wyden (OR)
  6. Richard Blumenthal (CT)
  7. Jeff Merkley (OR)
  8. Elizabeth Warren (MA)
  9. Sheldon Whitehouse (RI)
  10. Ben Cardin (MD)
  11. Kristen Gillibrand (NY)
  12. Corey Booker (NJ)
  13. Al Franken (MN)
  14. Carl Levin (MI)
  15. Angus King (ME)
  16. Bill Nelson (urging consideration of Title II as a “sounder path”)
  17. Tom Udall
  18. Tammy Baldwin
  19. Jay Rockefeller

Members of the House

  1. Nancy Pelosi (CA)
  2. Keith Ellison (MN)
  3. Raúl M. Grijalva (AZ)
  4. Earl Blumenauer (OR)
  5. Michael E. Capuano (MA)
  6. André D. Carson (IN)
  7. John Conyers, Jr. (MI)
  8. David N. Cicilline (RI)
  9. Peter De Fazio (OR)
  10. Donna F. Edwards (MD)
  11. Sam Farr (CA)
  12. Alan Grayson (FL)
  13. Rush Holt (NJ)
  14. Mike Honda (CA)
  15. Jared Huffman (CA)
  16. Marcy Kaptur (OH)
  17. Barbara Lee (CA)
  18. John Lewis (GA)
  19. Zoe Lofgren (CA)
  20. Alan Lowenthal (CA)
  21. Betty McCollum (MD)
  22. Jim McDermott (WA)
  23. Jim McGovern (MA)
  24. Jerrold Nadler (NY)
  25. Eleanor Holmes Norton (DC)
  26. Beto O’Rourke (TX)
  27. Mark Pocan (WI)
  28. Charles B. Rangel (NY)
  29. Tim Ryan (OH)
  30. John Sarbanes (MD)
  31. Jan Schakowsky (IL)
  32. Bobby Scott (VA)
  33. José E. Serrano (NY)
  34. Carol Shea-Porter (NH)
  35. Mark Takano (CA)
  36. John F. Tierney (MA)
  37. Pete Visclosky (IN)
  38. Michel Michaud (ME)
  39. Anna Eshoo (CA)
  40. Carolyn Maloney (NY)
  41. Mike Doyle (PA)
  42. Adam Schiff (CA)
  43. Suzanne Bonamici (OR)
  44. Dave Loebsack (IA)
  45. Chellie Pingree (ME)
  46. Louise Slaughter (NY)
  47. Niki Tsongas (MA)
  48. Peter Welch (VT)

Mayors and States, etc.

  1. Mayor Bill De Blasio (NYC)
  2. Mayor Edwin Lee (SF)
  3. Mayor Charlie Hales (Portland)
  4. State Library of Kansas
  5. Massachusetts Department of Telecommunications and Cable

Tech Companies & Startups Across Economy

  1. Netflix
  2. Automattic/
  3. Reddit
  4. Dwolla
  5. Meetup
  6. Kickstarter
  7. Etsy
  8. General Assembly
  9. Foursquare
  10. Gilt
  11. Spotify
  12. Upworthy
  13. Vimeo
  14. Cogent
  15. Opera Software ASA
  16. Codecademy
  17. CodeCombat
  18. Contextly
  19. OpenCurriculum
  20. Touchcast
  21. Heyzap
  22. VHX
  23. Pocket
  24. Warby Parker
  25. Mozilla
  26. Floor64/
  27. Golden Frog
  28. Data Foundry
  29. ThoughtWorks
  30. MobileWorks
  31. LendUp
  33. Twilio
  34. Badger Maps
  35. Linear Air
  36. Poll Everywhere
  38. RebelMouse
  39. Shapeways
  40. TerrAvion
  41. Rewheel
  42. Gandi
  43. Fandor
  44. Embedly
  45. Apportable

Telco and Cable Companies

  1. NTCA (rural telco association)
  3. Sunset (fiber provider)
  4. (fiber provider)

Trade Associations

  1. Ad Hoc Telecommunications Users Committee
  2. National Association of Realtors
  3. AARP
  4. CCIA
  5. Engine
  6. Writers Guild of America, West
  7. i2Coalition
  8. Internet Association

Investment Firms

  1. Y Combinator
  2. Union Square Ventures
  3. Trillium Asset Management
  4. Calvert Investments
  5. Arjuna Capital/Baldwin Brothers Inc.
  6. Zevin Asset Management
  7. First Affirmative Financial Network
  8. Clean Yield Asset Management
  9. Colorado Sustainable Financial Planning
  10. Nathan Cummings Foundation
  11. Park Foundation
  12. As You Sow Foundation

Public Interest Organizations

  1. Free Press
  2. Electronic Frontier Foundation
  3. Public Knowledge
  4. Fight for the Future
  5. Demand Progress
  6. National Hispanic Media Coalition
  7. Open MIC
  8. New America Foundation Open Technology Institute
  9. MoveOn
  10. American Civil Liberties Union (ACLU)
  11. Access
  12. Consumers Union
  13. Common Cause
  14. CREDO
  15. ColorofChange
  16. Center for Media Justice
  17. Future of Music Coalition
  18. Benton Foundation
  19. Voices for Internet Freedom
  20. AimHigh LA
  21. Appalshop
  22. Art Is Change
  23. Chicago Media Action
  24. Clarisel Media
  25. Common Frequency
  26. Dignity and Power Now
  27. Easton Community Access Television
  28. Families For Freedom, Inc.
  29. Generation Justice
  30. Hispanic Association of Colleges and Universities (HACU)
  31. Iguana Films
  32. Institute for Intellectual Property and Social Justice
  33. Iraq Veterans Against the War
  34. Latino Rebels
  35. LatinoJustice PRLDEF
  36. Librotrificante Movement
  37. Line Break Media
  38. Main Street Project
  39. Martinez Street Women’s Center
  40. May First/People Link
  41. Media Action Grassroots Network (MAG-Net)
  42. Media Alliance
  43. Media Literacy Project
  44. Media Mobilizing Project
  45. Message Media Education
  46.  Mexican American Opportunity Foundation (MAOF)
  48. National Association of Hispanic Journalists (NAHJ)
  49. National Association of Latino Independent Producers (NALIP)
  50. National Consumer Law Center, on behalf of its low-income clients
  51. National Institute for Latino Policy (NiLP)
  52. National Latina Institute for Reproductive Health
  53. News Taco
  54. Organizing Apprenticeship Project
  55. Paper Tiger TV
  57. Radio Bilingüe 45. Ruth Livier
  58. St. Paul Neighborhood Network
  59. The Greenlining Institute
  60. The People’s Press Project
  61. TURN (The Utility Reform Network)
  62. Women In Media & News (WIMN)
  63. Women, Action & the Media
  64. Working Films
  65. Working Narratives
  66. Young Women United
  67. Center for Rural Strategies | Whitesburg, KY
  68. Access Humboldt, Eureka, California
  69. Access Sonoma Broadband, Cazadero, CaliforniaRURAL
  70. Akaku Maui Community Media, Kahului, Hawai’i
  71. Anne Braden: Southern Patriot Project, Whitesburg, KY
  72. Appalachian Citizens Law Center, Whitesburg, Kentucky
  73. Appalshop, Whitesburg, Kentucky
  74. A Prairie Populist, Minnesota
  75. Athens Area Council for the Arts, Athens, Tennessee
  76. Bluegrass Rural, Melber, Kentucky
  77. California Center for Rural Policy, Arcata, California
  78. The Canadian Record, Canadian, Texas
  79. Central Appalachia Regional Network
  80. The Central Collective, Knoxville, Tennessee
  81. Coal River Mountain Watch, Naoma, West Virginia
  82. Gourd & Associates, Park Hill, Oklahoma
  83. Grassroots Foundation, Joes, Colorado
  84. Greenville Museum of Art, Greenville, North Carolina
  85. Independent Living Resources, Richland Center, Wisconsin
  86. Institute for Agriculture Trade and Policy, Minneapolis, Minnesota
  87. Institute for Local Self Reliance, Minneapolis, Minnesota
  88. June Appal Recordings, Whitesburg, Kentucky
  89. K12 Handhelds, Inc., Portal, Arizona
  90. Living Independence Network Corporation, Boise, Idaho
  91. Media Literacy Project, Albuquerque, New Mexico
  92. Missouri Farmers Union, Langdon, Missouri
  93. National Network of Forest Practitioners, Athens, Ohio
  94. Ohio Valley Environmental Coalition, Huntington, West Virginia
  95. The People’s Press Project, Moorhead, Minnesota
  96. Progress Lakeshore, Manitowoc, Wisconsin
  97. Public Relations Association of Louisiana, Shreveport, Louisiana
  98. Public Relations Society of America, Shreveport, Louisiana
  99. REACH Healthcare Foundation, Merriam, Kansas
  100. Redwood Alliance, Arcata, California
  101. Rural Broadband Policy Group, Whitesburg, Kentucky
  102. Rural LISC, Washington, DC
  103. Root Deeper Marketing, Athens, Ohio
  104. Shawn Poynter Photography, Knoxville, Tennessee
  105. Southern Idaho Rural Development, Shoshone, Idaho
  106. Summit City Lounge, Whitesburg, Kentucky
  107. Terzetto Creative, LLC, Huntington, West Virginia
  108. Tribal Digital Village Network, Pala, California
  109. The Utility Reform Network, San Francisco, California
  110. Virginia Rural Health Association, Blacksburg, Virginia
  111. Washington County Council of Governments, Calais, Maine
  112. The Watershed Center, Hayfokd, California
  113. WV Community Development Hub, Fairmont, West Virginia


  1. Ro Khanna

The following would support the FCC if it pursued Title II.

  1. Senator Harry Reid (would “lead the fight” to defend “any” open Internet rules)
  2. Senator Jay Rockefeller (urging FCC to consider “all viable options”)
  3. Congressman Henry Waxman (proposing the “undisputed Title II” authority as a backstop); then coupled with 706 for substantive authority
  4. Yahoo (as a “last resort”)
  5. AOL  (as a “backstop”)

Leaked Nude Celebrity Photos Banned on Twitter #JenniferLawrence

The incident of celebrity photos being leaked on 4chan has everything to make it a fascinating law school exam question, a sociological novel, or a Supermarket tabloid–all wrapped in one. 

Let’s begin with the Supermarket tabloid

There are:

  1. Celebrities
  2. Naked celebrities
  3. Doing what normal people do (taking NSFW images with their iPhones), without their makeup etc.
  4. Hackers
  5. The underbelly of the Internet
  6. Bitcoin!! The new digital currency’s first celebrity scandal?
  7. Anticipation of new photos
  8. Law enforcement

And let’s turn to the sociological novel

  1.  Misogyny 
  2. Celebrity-obsession
  3. Insecurities about digital life
  4. Victorian sensibilities about sex (and women having it)
  5. The privacy standards we as a society should allow celebrities (or not)
  6. Blaming the victim (the women for taking photos)
  7. Hypocrisy (also blaming the women for taking photos)
  8. The role of companies like Apple in our lives (and their obligations)
  9. Cloud computing and privacy
  10. How being leaked without permission and forbidden to share make them either more or less appealing to people 

Then there’s the law school exam. We have interesting questions of:

  1. Speech versus privacy in the digital age (the right of some to share the photos and others not to have their photos shared).
  2. Speech versus privacy for public figures in the digital age.
  3. Speech versus civility/harassment online, particularly towards women (see Without My Consent).
  4. Speech versus degradation of women (remember the debates typified in the Hudnut case).
  5. Private speech power: what principles should private speech platforms like Twitter and reddit adopt regarding speech, privacy, and civility, and when should they be liable for making the wrong call.
  6. Whether these private speech platforms have too much or too little say regarding our speech and/or privacy today. 
  7. Whether the platforms should distinguish between sharing the photos for news value or prurient value. 

If you talk to lawyers at the web companies, they’ll be quick to say there are 10 other hard questions they have to answer every day; this is just the tip of the iceberg. I just published an article in the Harvard Law Review about free expression on Internet platforms like Twitter and I’m sometimes asked my thoughts when Twitter bans photos or videos (LA Times, Fox Business, etc.) Since Twitter is suspending accounts for sharing Jennifer Lawrence’s leaked stolen photos, I might get questions, but the questions (above) will be more interesting than the answers I’d give. 

And there are also security engineering and personal security-practices exams in here too, but I’m a lawyer and will leave that to technologists.

Senator Harry Reid Would Support Title II

Looks like Title II, the only authority capable of supporting real net neutrality rules after a court decision in January, is now politically feasible. For months, opponents of Title II suggested that Congress would destroy the FCC if it chose the Title II path. One skeptic of strong net neutrality rules wrote: “Republicans and pro-telco Democrats in Congress will grind the FCC to a standstill, starve its budget, and do everything in their power to inflict permanent harm on the agency.”  Even the FCC Chairman apparently mentioned politics as a reason against Title II.

Since then, over a dozen Senators and dozens of Congressmen (and dozens of companies, investors, and trade associations) have come out strongly for Title II.

And the Majority Leader, Senator Harry Reid, has sent a letter saying that if the FCC does the right thing and stands up a rule under Title II, the Majority Leader would lead the fight to defend the rule.

That’s a far cry from where we were months ago, when one could plausibly claim that the FCC would successfully be defunded and crippled for adopting real net neutrality. In fact, the political arguments were, effectively, that of course the House (controlled by Republicans) would make the FCC Chairman’s life difficult no matter what. Unless the Senate has the Chairman’s back, he couldn’t do anything. That means the Chairman needed to know if Senate Democrats would support him if he pursued Title II and this letter answers that question. Yes.

Kudos to Senator Reid. This is a game changer. It allows us to argue on the merits, rather than have the FCC hide behind their political fears.

From Bloomberg:

Senate Leader Harry Reid Pledges to Support Open-Internet Rules

2014-07-29 21:17:28.128 GMT

By Todd Shields
July 29 (Bloomberg) — Senate Majority Leader Harry Reid said in a letter he would support “any Open Internet rules” passed by U.S. regulators, language welcomed by supporters of strict rules opposed by telephone and cable companies.
The pledge gives the Federal Communications Commission political cover to regulate Web services like a utility, rather than relying on less robust rules that allow for so-called fast lanes on the Internet, said David Segal, executive director of Demand Progress, a Takoma Park, Maryland-based policy group that received the letter dated yesterday.
Reid’s support is “a reason for the FCC to move ahead with the strongest rule possible,” Segal said in an interview. Other groups that are urging the FCC to approve rules requiring Internet service providers to treat Web content equally also received the letter from Reid, Segal said.

From Vice:

Senate Majority Leader Harry Reid has given the Federal Communications Commission a much-needed political boost as the agency decides whether to move toward a more robust Open Internet policy favored by many net neutrality advocates.

“First, Reid’s letter undercuts the FCC’s argument that Senate Democrats won’t support a Title II order,” Segal said. “Second, it undercuts the FCC’s argument that there won’t be much of a political fight over a 706 order. Reid makes clear that he expects a political fight either way, and with his backing, now the FCC can decide this issue based on the merits, not on the politics.”

Segal makes a good point. The simple fact is that many Republican lawmakers oppose any kind of net neutrality rules whatsoever, whether issued under the authority of Section 706 or Title II. …

“Here’s why this letter matters,” Aaron told Motherboard. “There’s no longer any question that Tom Wheeler has the political support to do the right thing. And the right thing is reclassifying broadband access providers as common carriers under Title II of the Communications Act. Senator Reid makes clear that when Wheeler reclassifies that the Senate leadership will have his back.”

From National Journal:

Reid’s letter did not urge the FCC to use its authority under Title II. But he acknowledged that liberal groups are pressing the FCC on the issue and said he would support “any Open Internet rules” the FCC enacts.

David Segal, the executive director of the advocacy group Demand Progress, said the letter shows Senate Democrats will defend the FCC if it uses the Title II option and that Republicans would likely fight the rules no matter what authority the FCC uses.


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