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

April 10, 2013 , , ,

Today, the House Energy and Commerce Subcommittee
on Communications and Technology
will begin mark
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

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
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
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

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

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

About Harold Feld

Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” a guide to what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”