Marvin Ammori

Keira Poellet and I published an article in the SAIS Review on the relationship between cybersecurity and network neutrality.

Major Poellet, my brilliant co-author, is a legal advisor to the U.S. Cyber Command. She is also a former student, my thesis advisee, and a graduate of the august program we have here at Nebraska Law, in Space & Telecom Law.

Stanford Law professor Barbara van Schewick has written a post detailing some of the improvements to the FCC Chairman’s/AT&T’s net neutrality proposal negotiated by FCC Commissioners Copps and Clyburn. Commissioners Copps and Clyburn negotiated for several weeks to improve the order so that it was not a collection of safe harbors and loop holes for the benefit of AT&T, but instead the strongest rule to which the Chairman would agree, one that could provide some protections to citizens, speakers, innovators, and everyone else using the Internet.

Prof. van Schewick’s post is called “The FCC’s Open Internet Rules – Stronger than You Think.” She explains that, “Commissioners Copps and Clyburn did not get the exact protections for users and innovators they had asked for,” but that “they managed to improve the chairman’s original proposal quite a bit.”

The debate over an open Internet will continue. But Commissioners Clyburn and Copps deserve considerable thanks in the important role they played in this latest chapter.

Here are some of the points detailed in Prof. van Schewick’s post:

In particular, the text of the [net neutrality] order

•  sets out important principles that will guide the commission’s interpretation of the non-discrimination rule and the reasonable network management exception;

•  explicitly bans network providers from charging application and content providers for access to the network providers’ Internet service customers;

•  stops just short of an explicit ban on charging application and content providers for prioritized or otherwise enhanced access to these customers (this second practice is often called “paid prioritization”); and

•  keeps alive the threat of regulation with respect to the mobile Internet.

I was on MSNBC’s Countdown, talking with Chris Hayes about the net neutrality order to be issued today.

The message: the FCC Chairman caved to the most powerful interests and is adopting a rule that may end the Internet’s historic openness to all software and content as a level playing field. This will undermine the Internet’s role in as an engine of economic innovation and democratic participation. The rule was written by and for the giants like AT&T, Verizon, and Comcast, who are cheering the rule. And the FCC Chairman is trying to fool the public into believing they should thank him.

I wish I had a happier message.

The FCC Chairman has repeatedly, and relentlessly, deployed his favorite talking point: that he is committed to helping “consumers, competition, and innovators.”

A week from tomorrow, the FCC may adopt a rule on Barack Obama’s signature technology campaign promise–network neutrality. From reports of the rule, it is “fake” or “pretend” net neutrality. The leading advocates of net neutrality have criticized the proposal, and opponents like AT&T and Comcast have praised it.

Yes, that’s like the Winter Queen offering a Christmas proposal and her only supporters being Ebenezer Scrooge and the Grinch. Who are you fooling?

Consumers, competitors, and innovators are coming out against the proposal in force.

Consumers: Free Press, a leading net neutrality advocacy group, is delivering 2 millions signed petitions today from Internet users. Consumers, citizens, speakers … call them what you want, they support an open Internet, not mere rhetoric.

Competitors: A start-up online TV company has filed a letter to the FCC explaining how its business model depends on an open Internet, and therefore depends on the specific details of the FCC rule. Stanford Law professor Barbara van Schewick posts the letter, and explains that Zediva is one of many companies who have expressed these concerns. The letter is worth reading in full.

Innovators: A venture capital investor in companies including Twitter, Meetup, Foursquare, Zynga, and Etsy has posted about the details of a net neutrality rule that could protect innovators. The investor, Brad Burnham, explains some of the problems with the current rule–which could make the Internet more controlled, like cable television in the 1990s. He endorses a framework proposed by van Schewick, which permits certain types of priority, when chosen directly by the user.

And let’s not forget the Open Internet Coalition, which includes Google, Facebook, Amazon, Expedia, and other companies. They opposed the proposal, based on reports.

On the other hand…

The carriers are vocally in favor. It’s like the Grinch cheering Christmas, like oil companies cheering energy reform and low oil prices, like turkeys marching to spread Thanksgiving Dinner to all six continents.

Time Warner Cable: “We would like to commend Chairman Genachowski, and everyone at the Commission, who have worked tirelessly to craft what we believe to be a fair resolution to these complex and controversial policy issues.”

Comcast: “We believe Chairman Genachowski’s proposal, as described this morning, strikes a workable balance between the needs of the marketplace and the certainty that carefully-crafted and limited rules can provide to ensure that Internet freedom and openness are preserved.”

AT&T: “Based on our understandings, this measure would avoid onerous Title II regulation; would be narrowly drawn along the lines of a compromise we have endorsed previously; would reject limits on our ability to properly manage our network and efficiently utilize our wireless spectrum.”

Verizon: “Verizon appreciates the efforts of Chairman Genachowski to seek a consensus on the contentious issue of net neutrality.”

Consumers, competitors, and innovators are speaking: they need more than a relentless focus on rhetoric and misdirection. They, and we, need real rules, real jurisdiction (called Title 2 or reclassification), and effective enforcement.

Here is my post on the FTC’s Do Not Track proposal, participating in a debate with friends like Jonathan Zittrain, Jonathan Askin, Fred Wilson, as well as Jim Harper, whom I don’t know but whose writings I find interesting.

Thanks to Ryan Calo at Stanford and Chris Soghoian for bouncing ideas with me and talking substance. Thanks to Luke Pelican and Noah Robinson as well, for discussing the issues this morning.

Yesterday, I posted what seems like a highly read post about the FCC Chairman’s proposed net neutrality rules (for more about him, see here), why they’re full of loopholes and likely unenforceable, and why they break Obama’s campaign promises.

I called it, FCC Proposes Garbage, Calls it Net Neutrality.

Turns out, I was being too kind.

A few people have let me know two things.

One, the wireless exemption is worse than I claimed. The rule against blocking would apply to voice telephony and video telephony only–not to all video. So AT&T Wireless could block Netflix.  It would have to, instead, degrade (but not block!) video Skype.

Two, on the jurisdiction side, I guessed (in that post) that the FCC was talking about section 706(b) and mentioned my skepticism. Other lawyers marveled at my understatement. And noted that there is probably a notice issue: the FCC is supposed to provide notice of some things before issuing a rule. (A basic requirement of administrative law for rules is notice of the rule and comment on it.) So, I haven’t looked at all the details, but I’ll note the notice problem, on top of the problem that the section might just not apply, resulting in the FCC building its rule on a house of sand.

I posted this the day before the Google-Verizon proposal. I discussed some of the factors for judging a solid network neutrality rule, rather one full of loopholes or built on mush.

A lot of people found it helpful and some suggested I repost this today. Here is a link to the post.

Commissioner Copps’ reputation is the opposite of the Chairman’s–a principled fighter for the public interest.

STATEMENT OF COMMISSIONER MICHAEL J. COPPS

ON PRESERVING INTERNET FREEDOM AND OPENNESS

“It’s no secret that I am looking for the strongest protections we can get to preserve an Open Internet, built on the most secure legal foundation so we don’t find ourselves in court every other month.  Over the next three weeks, I will work tirelessly with stake-holders—including, of course, consumers and Internet innovators—seeking to ensure real network neutrality that protects the online freedom of all Americans.  Today is the beginning of an important discussion, and not the end.  We have an historic opportunity to make sure this dynamic Internet technology reaches its full potential to create opportunity for every citizen.  I hope we will make the most of it.  At issue is who will control access to the online experiences of consumers—consumers themselves or Big Phone and Big Cable gatekeepers.”

–FCC–

The Chairman office’s phone number is 202-418-1000.

How candidate Obama, co-sponsor of net neutrality legislation, explained what he meant by Net Neutrality in his campaign promises: