Will Walden Wipe Out DMCA Just To Hack At Net Neutrality? Make My Day!

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Today, the House Energy and Commerce Subcommittee on Communications and Technology will begin mark up of the so-called “Internet Freedom Bill.” As explained in the Majority Briefing Memo, we’re still on about that whole “the ITU will take control of the Internet and black helicopters will come for out name servers” thing.”  Unfortunately, as keeps happening with this, it looks like some folks want to hijack what should be a show of unity to promote their own partisan domestic agenda. Specifically, does the bill as worded undercut the (by accident or design) the Federal Communications Commission’s (FCC) authority to do things like Network Neutrality?

How The Heck Did Net Neutrality Get Into This?

The concern arises from the very broad language of the proposed bill that “It is the policy of the United States to promote a global Internet free from government control.” The argument being that (a) unlike the almost identical non-binding almost identical to the [non-binding resolution] Congress passed last fall before the World Conference on International Telecommunications (WCIT) of the International Telecommunications Union (ITU), making this an actual law will apply to domestic policy and not just foreign policy; and (b) net neutrality constitutes “government control” of the Internet; (c) making this law transformed it from a non-binding ‘sense of Congress’ to not merely binding, but retroactively repealing any contrary statute or regulation by implication; so that, (d) the statute would affect an implied repeal of the FCC’s rules (and presumably any other regulation relating to the Internet).

I initially did not think much of the possibility that anyone would apply this bill to the FCC, since you can’t knee cap the FCC without knee capping the Copyright Office or other federal agencies beloved of those who hate the FCC. So when asked at the hearing last February whether I thought Congress ought to pass the bill, I said “sure, it will show our continuing resolve” or some such as part of our total unity fest. But folks at the FCC, the State Department, the Department of Justice, and a bunch of other agencies and raised concerns that this could impact domestic policy – not just on net neutrality but on privacy, cybersecurity, law enforcement, and copyright enforcement. So just to be sure, Subcommittee Ranking Member Rep. Anna Eshoo (D-CA) sent a letter to Subcommittee Chairman Greg Walden (R-OR) outlining concerns from various agencies and asked that the proposed bill be amended to say “international government control,” just to make it clear that Congress did not intend to impact domestic policy.

Astoundingly, Chairman Walden refused this request to clarify the language. That raises goddamn alarm bells. So while I was rather dismissive of the idea before, Walden’s refusal to make the change in the proposed language to make it clear that he and other House Commerce Committee Republicans are not trying again to hijack important foreign policy concerns and the future of the global Internet to score cheap domestic policy points. This is profoundly unfortunate. As I noted last summer when Rep. Lee Terry tried to hijack this for an anti-net neutrality crusade, nothing could more undermine our position globally (and provide ammunition to those who say our concern for global Internet freedom is just more imperialist hypocrisy) than to turn this from a show of unity into a showcase for partisanship on domestic issues.

Consequences of Screwing Around On This Are a Lot Broader Than Net Neutrality.

In addition to undercutting our future negotiating position and thus jeopardizing the whole global Internet freedom thing we are trying to protect, a claim that the wording extends to domestic policy (and thus to net neutrality) has pretty far reaching consequences in other areas – many of which the net neutrality haters like just fine. For example, if you went this interpretation, you would also be saying that the provisions of  the Digital Millennium Copyright Act (DMCA) that force Internet service providers (ISPs) and providers of “interactive services” (like YouTube) to respond to takedown notices. After all telling an ISP who they have to block for copyright purposes or telling a website what they have to take down is far more intrusive “government control” than net neutrality could aspire to be on a good day (just ask Kim Dotcom or the folks at Dajaz1.com). If the Internet Freedom bill is binding domestic law, then it becomes illegal for for the US Trade Representative to even ask for the crazy train copyright crap it put in ACTA and keeps demanding as part of the Trans-Pacific Partnership negotiations.

Similarly, any hope broadcasters might have that Congress will pass a “fix” to the Aereo decision would appear dead on arrival if the proposed Internet Freedom bill applies to domestic policy.

I find it difficult to believe that Chairman Walden hates net neutrality so much he would throw broadcasters under the bus on Aereo just to find a sneaky way to undermine net neutrality. And no matter how much Rep. Marsha Blackburn (R-TN) may believe net neutrality is “government control” of the Internet, I find it difficulty to believe she would willingly defy her constituents in Nashville by risking an implied repeal of the DMCA. When last I looked, both the FCC, the Copyright Office, and USTR are part of the “government” that this bill says must not “control” the Internet. You can’t kneecap the FCC without kneecapping the Copyright Office and the USTR.

Also, as I noted in my testimony when the House held a hearing on this last February, the U.S. has longstanding policies and statutes on precisely the issues we said at WCIT were inappropriate for the ITU. We have had the CAN-SPAM Act since 2003. We have had the Child Online Privacy and Protection Act (COPPA) for about 15 years. We have various laws and regulations about cybersecurity and law enforcement online – and Congress is actively consider more. Again, it seems rather difficult to believe that Chairman Walden plans to wander over to the top-secret closed door mark up of the Cyber Intelligence Sharing And Protection Act (CISPA) today and say “sorry folks, but my Subcommittee is about to mark up a bill that will make your bill illegal – sucks to be you!”

Again, some folks might be happy to see the Internet Freedom bill interpreted in a way that kneecaps the Federal Trade Commission (FTC), but will they be equally happy with kneecapping DOJ, Department of Homeland Security (DHS) and any other agency that handles consumer protection and law enforcement?

Finally, even if you could count on the merry judicial activists at the D.C. Circuit to know the fix is in and limit this to just FCC stuff you don’t like, I am pretty sure you don’t really want to go there. Remember that rural call completion stuff I was on about last week? If we can’t “regulate the Internet” because of the Internet Freedom bill, how do you expect to solve the rural call completion problem. That solution, you may recall, requires the FCC to dig deep into call routing and require voice providers to route calls in a way that will guarantee they reach rural exchanges. Are you really prepared to tell rural America they can forget about getting incoming calls just to take a pot shot at net neutrality?

Also, you might end up someplace like the Second Circuit, which demonstrated only last week in the Aereo decision that it actually understands what stare decisis means and all that rule of law stuff the D.C. Circuit likes to ignore. So I really, really wouldn’t count on this staying confined to the FCC. Heck, we refused to sign the ITRs because of cybersecurity and spam. No one even mentioned net neutrality at the WCIT as justification for ITU jurisdiction. A reviewing court actually serious about finding the “intent of congress would have to conclude that, at a minimum, the stuff Congress considered “government control” of the Internet included cybersecurity and efforts to stop spam – not net neutrality.

Go Ahead, Make My Day . . .

The obvious answer to all of this is to simply amend the language as requested by Rep. Eshoo. Even better, don’t make the thing a law at all. Just keep doing what you did last time and issue specific resolutions when necessary. That will provide context for what Congress actually intends.

But if Walden and other Commerce Committee Republicans decide to push the button on this, understand what it means. This isn’t just a jab at the net neutrality stuff you’ve worked yourselves into a frenzy over, or a favor to incumbents who view the [transition of the phone system to IP as a glide-path to deregulation. It’s a doomsday device that takes out everything. You want to swap elimination of net neutrality for elimination of the DMCA? You want to throw broadcasters under the bus on Aereo to deregulate the phone system? You want to repeal the FTC ability to protect consumer privacy, at the cost of eliminating DHS’s ability to protect national cybersecurity?

As a speaker at the 2012 Republican Convention in Orlando once famously said: “Go ahead, make my day.”

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