In these comments, CDT argues that the FCC should re-impose the core net neutrality rules (no blocking, no throttling, no paid priority) on broadband providers, and the best way to do that under current law is through reclassification of broadband services as a “Title II” telecommunications service. Such classification would enable the FCC to monitor and take action as needed in areas such as zero rating, interconnection disputes, and 5G network slicing if they cause harm.

This classification would also have privacy benefits, as the new classification will allow the FCC to impose Section 222, the telecom privacy provision, on broadband providers. The FCC should begin a broadband privacy proceeding with haste.

Read the comments.

The post CDT Comments to FCC on Re-Imposing Net Neutrality appeared first on Center for Democracy and Technology.

In this submission we provide input to the consultation to specifically address aspects of Questions 10, 54, 58 and 60 only. Additionally we submit our report published earlier in 2023 on Network Slicing.

CDT does not accept the premise that internet operators’ network costs are insufficiently accounted for under the current internet interconnectivity architecture. Furthermore CDT opposes any policy interventions that would restrict the ability for the Internet to evolve, reduce the open nature of the Internet, and fragment core Internet architecture across jurisdiction.

Read the full submission here.

The post CDT response to the European Commission exploratory consultation on “The future of the electronic communications sector and its infrastructure” appeared first on Center for Democracy and Technology.

Since the 1990s, the Center for Democracy & Technology (CDT) has been concerned with the ways in which “service delivery models of the Internet risk diminishing or eliminating the rough ‘equality of voice’ between small and large speakers that is a key characteristic of the narrowband Internet.” [1] The principles of net neutrality have been essential for maintaining the diversity of services built on top of the internet and for maintaining some competition between small and large providers of those online services. That diversity and competition, in turn, provide users with a broader array of choices for seeking online content and disseminating their own speech. Furthermore, in order for the internet to be used to its full potential and to protect the human rights of internet users, we need privacy from surveillance and unwarranted data collection by governments, network providers, and edge providers.

What has changed since the 1990s? In addition to the explosive growth of the internet, its worldwide accessibility, and its vital importance to conducting activities of modern life, new networking technologies provide capabilities for novel internet services as well as opportunities for network operators to monetize networks further.

One such change, the transition to 5G mobile networks, enables network operators to engage in a technique called network slicing. The portion of a network that is sliced can be used to provide a suite of different service offerings, each tailored to specific purposes, instead of a single, general-purpose subscription for mobile voice and data. Moving from general-purpose access to a sliced network means treating network traffic differently, which, by definition, violates the strictest definition of net neutrality — that every data packet should be treated equally and identically. However net neutrality in practice does allow for differential treatment, “so long as it is not discriminatory in ways that affect the internet user’s Quality of Experience or competition among edge providers.” [2]

This requires a careful approach. Our report describes the technologies used for network slicing and outlines recommendations for an approach – for both operators and regulators – to enable network slicing while maintaining network neutrality, protecting privacy, and promoting competition.

Read the full report here.

[1] Morris Jr., J. B., & Berman, J. (2010). The Broadband Internet: The End of the Equal Voice? Center for Democracy & Technology. [perma.cc/44EF-BX33]

[2] Adams, S. (2019, September 24). Techsplanations: What’s the Deal With 5G? Center for Democracy & Technology. [perma.cc/X8J7-YMU8]

The post Slicing the Network: Maintaining Neutrality, Protecting Privacy, and Promoting Competition  appeared first on Center for Democracy and Technology.

Preserving Free Expression and the Democratic Process While Addressing Online Content Issues

Content Moderation. Policy leaders should examine issues such as disinformation, hate speech and discrimination online while preserving the essential legal protections that support free expression. Legislating on the basis of slogans regarding online content will do more harm than good, especially for historically marginalized groups, and it is crucial to start breaking down policy interventions into discrete, definable priorities. There are no easy legislative fixes to issues like disinformation and online hate, but leaders should focus on promoting transparency and due process in content moderation, enabling independent research to promote accountability of online services, and using their oversight authority to examine the measures platforms can take to respond to harmful content on their services. As part of this effort, Congress should consider how passage of federal privacy legislation could help address issues such as targeted disinformation.

Elections. Federal leadership should work to preserve the democratic process and combat election disinformation, fight voter suppression online and offline, secure voting infrastructure, and promote access to the ballot. The Administration and Congress can accomplish these goals through the passage of long-overdue electoral reform legislation and through engagement with stakeholders at the state, local, territorial, and tribal levels. Election officials should be provided with sufficient resources to combat disinformation, improve physical and cybersecurity, ensure that each vote has a paper trail, conduct risk-limiting audits, and permanently expand eligibility for mail-in voting.

Protecting Consumers and Civil Rights Through Privacy Legislation and Agency Enforcement 

Privacy Legislation. Congress is closer than ever to passing meaningful privacy legislation, and it should finish this effort as its first order of tech policy business in 2021. A few key issues need resolution, including how to limit the collection, sharing, and use of data and how to strengthen anti-discrimination laws. Leadership is also needed to build consensus around a private right of action and the preemption of state laws, if any. The Federal Trade Commission should aggressively pursue cases and remedies under its authority to combat unfair practices and deter discriminatory, exploitative, or egregious behavior. Such efforts would not only protect consumers but protect civil rights, advance racial justice, and promote economic growth.

Data-Driven Discrimination. Congress and the Administration must also commit to fighting algorithmic-driven discrimination, especially in areas such as employment, education, housing, credit, the receipt of government benefits, and goods and services markets. Civil rights and competition agencies should conduct investigations, issue clear guidance or regulations, and enforce against offenders. Congress should investigate and fill any gaps in public accommodation and civil rights laws to account for modern data practices, and it must undo recent efforts to undermine the “disparate impact” standard as a means for challenging discrimination. It is crucial that these efforts include laws and policies that prohibit discrimination against people with disabilities. 

Civic Technology and Data. Civic institutions increasingly rely on data and technology to carry out their responsibilities, such as designing educational programs, addressing food instability, and identifying effective responses to COVID-19. It is critical that governments use data in ways that affirm responsible data use, protect individual privacy, and advance just social structures. Congress and the Administration should provide guidance to governmental institutions on the privacy risks posed by data collection and use, address cybersecurity risks faced by schools and state and local governments, and identify ethical principles to guide governments’ responsible use of data.

Reforming Surveillance and Preserving Fundamental Rights 

Surveillance. The Administration and Congress should address the impact of surveillance on people in and outside the United States, including the rights of BIPOC communities, activists, journalists, immigrants, and refugees. Extreme vetting measures, warrantless electronic device searches at the border, and social media monitoring must be eliminated or restricted. Policy leaders should establish a right to redress disproportionate surveillance, limit the purposes of surveillance, and update surveillance laws to account for technological advances. They should eliminate or regulate the use of unreliable surveillance technologies for law enforcement purposes, such as facial recognition. Finally, Congress should hold hearings and consider legislation to ensure that surveillance focuses on evidence of crime and not on peaceful protesters, and to prevent the government’s circumvention of the Fourth Amendment through the purchase of constitutionally protected data from data brokers.

Encryption. Congress and the Administration must commit to protecting access to end-to-end encrypted services. Encryption plays a fundamental role in preserving the privacy and security of online communications and personal data, and is one of the few measures that companies exporting data to the United States can employ to meet GDPR requirements. Despite the importance of encryption to a secure internet, governments are calling for backdoors to encryption and advancing proposals that would expose encrypted communications services to legal liability. The Administration and Congress should oppose those efforts in the U.S. and internationally, defend users’ access to end-to-end encryption, and pursue more appropriate ways to combat harms such as child sexual abuse material and terrorist propaganda.

Advocating for a Competitive, Free, and Open Internet

Congress and the Administration must ensure that all Americans have affordable access to a free and open internet, and act to promote competition within technology services. The FCC and Congress should establish an action plan to close the digital divide by 2024, reaffirm the FCC’s authority over all telecommunications services, including broadband, and implement strong and enduring net neutrality protections. Congress, the FTC, and DOJ should commit to robust antitrust enforcement, through increased funding, hiring sufficient lawyers and technologists, and litigating important matters. Internationally, the United States must resume its role as a leader in promoting an open and secure internet driven by democratic values, including by restoring funding and open, fair decision-making for Internet freedom projects supported by the U.S. Agency for Global Media. In its foreign as well as domestic policy, the Administration can support technology’s potential to empower and connect people, while addressing the risks of invasive and discriminatory uses that undermine human rights and civil liberties.

PDF version of CDT’s recommendations here.

The post CDT Recommendations to the Biden Administration and 117th Congress to Advance Civil Rights & Civil Liberties in the Digital Age appeared first on Center for Democracy and Technology.

In Mozilla v FCC, the United States Court of Appeals for the District of Columbia Circuit reviewed the FCC’s 2018 “Restoring Internet Freedom” Order (“Order”), in which it reclassified broadband internet access service (“BIAS”) as an “information service” and attempted to preempt state laws addressing net neutrality. The court vacated the portion of the Order that claimed authority to preempt state laws, and remanded the Order to the FCC because the FCC had failed to consider the Order’s implications for public safety, pole attachments, and the Lifeline program. Section 706(2)(A) of the Administrative Procedure Act (“APA”), provides that the court “shall hold unlawful and set aside” agency actions found to be arbitrary or capricious. The court found that the failure to fully consider the implications of the Order made the FCC’s actions arbitrary and capricious.

Although courts have occasionally remanded agency actions without vacatur, they do not excuse an agency’s failures, nor does remand without vacatur allow an agency to repair its failings with additional insufficient procedure. Instead, the agency must fulfill its original duties under its authorizing statute and the APA. In this case, the FCC must consider with an open mind the implications of every aspect of its Order with respect to the three issues it originally neglected: public safety, pole attachments, and the Lifeline program. It cannot do so by merely “refreshing the record.”

To provide adequate notice of its intended actions and to demonstrate its openness to alternative conclusions, the FCC must conduct its procedure anew, including consideration of public comments addressing the Commission’s conclusions with respect to public safety, pole attachments, and Lifeline. Without agency conclusions and the reasoning to support them, the public cannot provide meaningful feedback, and the agency cannot meet its requirements under the APA. After refreshing the record, the FCC must conduct a formal rulemaking in which it provides notice to the public of its conclusions and proposed actions, considers and addresses comments, and explains the reasoning behind its final conclusions.

The post CDT’s Comments Refreshing the Record in Restoring Internet Freedom and Lifeline Proceedings in Light of the D.C. Circuit’s Mozilla Decision appeared first on Center for Democracy and Technology.

This practice, known as zero rating, is common, but it has also been controversial. Metered billing (selling network access based on data consumption) forces people to ration their use of the internet to avoid running out of data or incurring additional fees. Zero rating, in which some network traffic is not counted toward data limits, offers some relief from the constraint of data caps. However, many programs are structured so as to favor a few web offerings over all others, which undermines an open internet by leveraging the price of data to advantage the zero-rated sites.

Zero rating became a hot topic in 2015 as a different Facebook product, Free Basics, received intense scrutiny from policymakers and regulators. Mobile carriers around the world partner with Facebook to offer zero rated access to Free Basics, which functions as a portal to a selection of websites. One of the biggest critiques of Free Basics was the limited content available through the portal; it did not allow users to connect to the full internet, only a walled garden of sites that met the technical criteria and passed the approval process.

Discover represents a significant improvement over Free Basics in several aspects. First, it does not limit the websites that users can access. Instead, it removes any high bandwidth content, such as video and audio files, from whatever site the user chooses, delivering a text-only version of any website. This is a big step closer toward an approach to zero rating that preserves the openness of the internet. Although a text-only web cannot provide the same experiences, services, and informational density as the complete offerings of most sites, it does offer access to much of the web’s available information. While the full internet, with video and audio, would be preferred, Discover offers a way for people to fill temporary gaps in connectivity, like running out of data a few days before your plan renews.

This system largely preserves users’ ability to choose where they go and what they do on the internet, with the obvious exception of streaming video and audio sites. It also eliminates the need for websites to negotiate terms or restructure themselves to meet technical criteria as part of a zero rated offering. This eliminates ISPs’ role in choosing which websites will benefit from being zero rated—one of the bigger concerns from a net neutrality perspective—and precludes the possibility for exclusive arrangements.

CDT appreciates the improvements Discover offers, many of which align with the preferred attributes we identified in our paper on zero rating. We look forward to learning more as the service rolls out, especially about how much data carriers will offer for Discover users and how people use it. We are also eager to see how Discover evolves, for example to accommodate those with print disabilities. As long as metered data plans are the status quo, zero rating will be an appealing option for data-conscious browsing. And while zero rating offers imperfect relief to the problems created by artificial scarcity, Facebook’s Discover should be applauded for helping  to preserve user choice and facilitate more continuous access to the internet.

The post Facebook’s New Zero-Rating App, Discover, launches in Peru appeared first on Center for Democracy and Technology.

In place of any substantive consumer protections, the Commission enacted a limited disclosure rule that, it said, was sufficient – but also necessary – to enable competitive forces in the internet ecosystem to prevent open internet abuses by BIAS providers. But having disavowed nearly every source of authority to regulate in this area, the Commission was left scrambling to support its lynchpin disclosure rule. It ultimately founded the rule on Section 257 of the Act, a provision it never mentioned in its Notice of Proposed Rulemaking (NPRM) and which, in fact, the NPRM conveyed was not under consideration. See In re Restoring Internet Freedom, 32 FCC Rcd. 4434 (proposed May 23, 2017).

The panel in this case upheld the Commission’s decision in relevant part, declaring its hands bound by National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). The panel acknowledged the dramatic changes in technology, markets, and internet usage in the nearly fifteen years since that decision. And it recognized that in light of those changes, the FCC’s justification for its classification had changed from the one approved in Brand X. The panel’s conclusion that Brand X nonetheless required it to uphold the FCC’s revised rationale in a dramatically altered factual context conflicts with Brand X itself and merits en banc review. The panel’s rejection of petitioners’ notice challenge to the Commission’s disclosure rule likewise warrants review because it conflicts with this Court’s precedent in National Tour Brokers Ass’n v. United States, 591 F.2d 896 (1978), and fails to address the parties’ principal arguments on the issue.

The post CDT’s Appeal Petition for Rehearing FCC Net Neutrality Repeal appeared first on Center for Democracy and Technology.

Little Progress in Negotiations on the Terrorist Content Online Regulation  

Trilogue negotiations on the proposed Regulation on Terrorist Content Online were expected to finish in mid-December, but have not made significant progress so far. Negotiations are difficult because the European Parliament’s position (which CDT supports) differs significantly from the Commission’s draft text and the Council (Member States) Common Position. Among the key issues in these negotiations will be upload filters and proactive measures, how Member States appoint ‘competent authorities’ and how many, whether ‘referrals’ will be part of the Regulation, and how the definition of ‘terrorist content’ will be shaped. Considering the difficulties, it is unlikely that an agreement will be reached in the expected timeframe. CDT is following the negotiations closely.

Parliament Rapporteur Proposes Solutions to Shortcomings in Draft EU E-Evidence Legislation

On 11 November 2019, MEP Birgit Sippel (S&D), Rapporteur for the Committee on Civil Liberties, Justice and Home Affairs (LIBE), presented her draft report on the European Commission’s E-Evidence proposals. The report takes on board several recommendations CDT put forward and is a significant improvement on the Commission’s proposal. The E-Evidence process is meant to result in clear new rules for government authorities to access electronic evidence, and Ms. Sippel proposed significant improvements in the form of privacy and procedural safeguards. The original proposal limits review of evidence production orders by any authority besides the issuing authority, and provides little scope for review by the service provider. The risk is that production orders are issued for too broad a range of data, infringe disproportionately on privacy rights, and may involve privileged and confidential information. Among other things, Ms. Sippel proposes providing simultaneous notification to executing state authorities when orders are issued, and where necessary, the authorities of the state of residence of the person whose data is sought. Other MEPs will propose further amendments to be debated by the Committee.

CDT Submits Comments on the Council of Europe Budapest Convention Draft Protocol on Subscriber Information

CDT provided comments ahead of the Council of Europe’s OCTOPUS Conference consultations on the drafting of a Second Additional Protocol on subscriber information to the Budapest Convention on Cybercrime. Among other things, we called for the text of the draft Protocol to be improved on a number of points: to provide for judicial oversight; to include a dual criminality condition; to ensure a strong factual basis for orders for subscriber information; to provide for notification of state authorities and persons whose data is sought; and to include reimbursement of providers for executing orders for data.

European Parliament Approves New European Commission

The new College of Commissioners took office on 1 December, following a vote of approval by the Parliament on 27 November. The Commission’s entry into force was delayed when MEPs refused to approve nominees from France, Bulgaria, and Hungary. The approval went ahead with a majority of 461 votes to 157 against, with 89 abstentions. The vote followed a presentation by the new President of the College of Commissioners and their programme for the next five years. The presentation – reflecting the President’s existing strategy document – included several digital and technology policy issues. These included the review of EU legislation on intermediary liability, a regulatory framework for artificial intelligence, a data strategy for the EU, measures to combat disinformation and election interference, and the concept of technological sovereignty.  

Implementation of the Copyright Directive: 51 Academics Co-Sign Recommendations on Safeguarding User Freedoms in Implementing Art. 17

In context of the ongoing Art. 17 Stakeholder Dialogue, 51 copyright academics co-signed a set of recommendations on safeguarding user freedoms in implementing Article 17 of the Directive on copyright in the Digital Single Market. This Article is the most controversial in the Directive because it effectively mandates the use of upload filtering by content hosts. This raises concerns that filtering technology is not sophisticated enough to enable users to benefit from exceptions and limitations to copyright and results in overblocking of legitimate content. The recommendations should be followed by Member States to ensure that hosting service providers covered by the Article “optimise preventive measures for user rights and freedoms, and design user-friendly complaints and redress mechanisms”. CDT continues to participate actively in the Stakeholder Dialogues.

CDT and Public Knowledge Respond to BEREC Consultation on Draft Guidelines on the Implementation of the Open Internet Regulation

CDT and Public Knowledge (PK) responded to the Body of European Regulators of Electronic Communications’ (BEREC) consultation on their draft guidelines for implementing the EU’s Open Internet Regulation. We appreciate that BEREC provided additional guidance for assessing commercial agreements like zero-rating, which can vary widely. Their impacts on consumers and relevant markets also depend on many interdependent factors. Therefore, a case-by-case approach is the best way to ensure that potentially anti-competitive, content-discriminatory, or otherwise harmful arrangements are prohibited, while still allowing arrangements that provide more choice and benefits to consumers without impacting users’ rights. We also appreciate that BEREC’s guidelines anticipated some of the new network use cases and capabilities that may emerge in conjunction with 5G networks, such as Quality of Service guarantees. Although predicting the practical realities of these developing technologies is difficult, BEREC’s proposed guidance would help national regulatory authorities address some of the biggest concerns associated with new capabilities like “network slicing.”

The post EU Tech Policy Brief: November 2019 Recap appeared first on Center for Democracy and Technology.

Earlier this month, the D.C. Circuit published its opinion in Mozilla v. FCC. This was the case challenging the Commission’s reclassification of broadband internet access service (BIAS) from a “telecommunications service” to an “information service” and the accompanying repeal of the net neutrality protections the FCC put in place in 2015. CDT and others filed this lawsuit in 2018 because we believe the internet should remain as open (where your ability to access any and all lawful content is the same) and flat (with equally low barriers to entry for everyone) as possible. But preserving an open internet against an uncompetitive landscape in which a few major companies control access requires regulatory oversight. For this reason, we also challenged the FCC’s legal argument for the reclassification, which attempted to permanently abolish the FCC’s own ability to regulate internet access providers.

On reclassification, the court upheld the FCC’s decision, but directed the Commission to rethink the potential impacts its policy reversal might have on public safety, the Lifeline program, and providers’ access to utility poles. Although the Commission downplayed these issues, both in the rulemaking and in its reaction to the court’s opinion, they are substantial. Agencies must consider how their policy changes might impact public safety, and that consideration should amount to more than handwaving. The same goes for the Lifeline program, which helps ensure that not only the wealthy are able to use a phone and get online. Finally, the FCC’s rules that guarantee equal access to utility poles and pipes only apply to Title II services. This means that the major broadband providers (who also have Title II services like landline telephone) can still get access to shared infrastructure, but broadband-only competitors cannot, making it even more difficult to introduce real competition into the market.

The court’s remand means that the FCC must go back and formally re-think these issues. Time will tell how quickly the FCC is able to go back and do it’s homework, but this is not the only issue standing between this administration and total de-regulation. 

The FCC’s gambit to rid itself of authority to regulate backfired in a critical way: Because the FCC claimed it had no authority to regulate broadband, the court said that it also lacked the authority to prevent the states from enacting net neutrality laws. So while the Commission won a battle, it may now lose the war. The loss on the issue of state preemption is a major setback for ISPs who would prefer to remain unregulated. (The court did leave open the possibility that the FCC might be able to preempt states on a case-by-case basis, but it is unclear how this might play out.) 

The FCC ending federal net neutrality rules, before and after.

Bottom line: State actions will pressure ISPs and Congress toward federal legislation.

The court handed a big win to the 30+ states with net neutrality rules currently in place or in progress. The prospect of a looming patchwork of state regulation should be a strong incentive for ISPs to seek a federal legislative solution. Passing the Save the Internet Act, which has already passed the House (and the Senate in a previous congress) would be the quickest way to achieve this, effectively reinstating the 2015 Open Internet Rules. Other options will certainly take longer, even though the vast majority of Americans across the political spectrum support the 2015 rules. Regardless, while the litigation will continue, the policy focus likely will shift towards the legislative branch.

Between the lines: Court’s hands are tied by SCOTUS (and its own) precedent. It is time for SCOTUS and/or Congress to step in.

A few things stand out in this latest decision. First, the DC Circuit determined its hands were tied by the relevant Supreme Court precedent (NCTA v. Brand X) and by the statutory language of the Communications Act. Second, the court’s understanding of the technologies in question, although improved, still fails to account for the rapid technological advances that are imminent in the U.S. Finally, the fate of the regulatory approach for broadband seems to depend less on statutory interpretation than it does on a couple of relatively obscure technological features.

In both the unanimous opinion of the court and Judge Millett’s concurrence, the court found that it must defer to the agency’s judgments about how to map dense technological and policy considerations onto an equally complex set of statutory provisions. This is nothing new― the Chevron Doctrine has always been at the heart of the net neutrality litigation― but the court’s deference in this case stands out because of the court’s skepticism toward the agency’s reasoning. 

The unanimous opinion barely even acknowledges the FCC’s primary argument for reclassification: that because ISPs offer a pathway to the internet, they offer the capabilities of retrieving, storing, processing, etc information. Instead, it focuses on the Commission’s back-up argument: that because ISPs operate DNS resolvers and also cache data locally on their networks, their broadband “offering” is a mix of telecommunications services and information services, potentially subject to classification as either one. We will discuss these in more detail below, but of note here is that DNS and caching were the same “services” considered by the Supreme Court in the Brand X case. Judge Millett’s concurrence expresses frustration with the limiting effects of this precedent: 

“[Brand X] compels us to affirm as a reasonable option the agency’s reclassification of broadband as an information service based on its provision of Domain Name System (“DNS”) and caching. But I am deeply concerned that the result is unhinged from the realities of modern broadband service.” 

She continues,

“The Supreme Court, however, is not so constrained. It is freer than we are to conclude that the “factual particulars of how Internet technology works,” Brand X, 545 U.S. at 991, have changed so materially as to undermine the reasonableness of the agency’s judgments and in particular its “determinative” reliance on DNS and caching, 2018 Order ¶ 33 n.99. Or Congress could bring its own judgment to bear by updating the statute’s governance of telecommunications and information services to match the rapid and sweeping developments in those areas. Either intervention would avoid trapping Internet regulation in technological anachronism.” 

The per curiam opinion fails to reflect an understanding of the technological underpinnings of internet access. For example, when the court discusses the FCC’s determination that mobile broadband is not an “interconnected service,” it buys the argument “that—even though users need to acquire equipment and software separately for mobile voice—the function of interconnection is provided by the purchased mobile service itself.”  The court continues, “With VoIP, by contrast, the add-on application—and not the broadband service—supplies the interconnection functionality.” 

In addition to the double standard here (for carriers’ voice service, it isn’t about the software, but for non-carrier VoIP it is about the software?), the court overlooks the fact that mobile voice is VoIP (or the equivalent, VoLTE) and that both are a subset of the functions supported by a broadband connection. The only difference for consumers is that your carrier’s mobile voice application (the one with the phone icon) is pre-loaded on your device, while third-party VoIP applications may require you to download them first. 

The court then goes on to an even more flawed analysis: “The gap in Petitioners’ theory is shown most clearly in the obvious inability of a would-be caller from a NANP (North American Numbering Plan) number who seeks to reach a person with mobile broadband but no form of VoIP (or mobile voice service).” Sure, I cannot necessarily make a call from my landline phone to an (unknown?) person who managed to acquire a data-only mobile plan, but I also cannot call someone with a landline phone number who has not purchased and connected a physical telephone. Nor can I (as a person) communicate with a fax number. 

What the Commission and the court get wrong here is seeing mobile apps as fundamentally different than physical devices (or customer premises equipment- CPE) like landline telephones and fax machines that enable different services. While older networks require us to use specialized, single-purpose equipment to connect and communicate across networks, modern mobile networks allow us to use a variety of specialty apps on a single multi-purpose computing device. So the VoIP apps, whether pre-loaded or downloaded after a device purchase, are the equivalent of landline handsets—one only needs to “plug them in” to a broadband network. 

Despite disagreeing with the FCC’s interpretation (this time), CDT still believes that agencies need to be able to interpret statutory language, and that their expertise should get deference from courts. However, while the Chevron doctrine of deference (to an expert agency’s reasonable interpretations of ambiguous statutory language) is an important aspect of how our legislative, administrative, and judicial branches interact, it is also important to make policy based on an accurate understanding and characterization of the technology at issue. This system relies on expert agencies being expert, but when experts misrepresent a technology for regulatory or deregulatory purposes, they undermine the trust that deference is built on. Although it is perhaps unreasonable to expect judges to have sufficient expertise to question the validity of an agency’s technical analysis, their willingness and ability to do so seems critical to ensuring that deference is not abused. 

Which brings us to the two aspects of network operation on which the FCC and the Supreme Court have focused on in the classification of broadband: DNS and caching. In its secondary argument, the Commission portrayed these “services” as an inextricable part of the “offering” made by ISPs. This reasoning tracks the Supreme Court’s opinion in Brand X (decided in 2005, based on facts from 2002), which said that it was acceptable for the FCC to classify cable modem service (early broadband) as an information service because cable companies also performed DNS lookups and caching. And that the average consumer perceived DNS and caching as part of the “offering.”

The overwhelming majority of Americans, Democrats and Republicans alike, support the protections laid down in the 2015 Open Internet Order; let’s get it done!

This was a weak argument, even back in 2005. Now, in the words of Judge Millett, this argument “blinks reality” for at least two reasons. One is the rise in popularity of alternative DNS providers―DNS is no longer an invisible ingredient in the broadband offering but a separate service available from multiple providers with varying degrees of security and privacy. Yes, ISPs still operate their own DNS resolvers, but more and more people are turning elsewhere for this task. There are even encrypted DNS options being built into web browsers and turned into apps (to the dismay of ISPs). And because of encrypted web content, the caching argument has gotten weaker as well. Yes, ISPs still cache some content, locally, but their ability to do so has steadily declined as more and more of the web converts to HTTPS. So why did the court let the FCC get by with this weak, outdated reasoning? 

According to the D.C. Circuit, Brand X dictates that the FCC’s determination that DNS and caching turn broadband into an information service (even though this amounts to a tiny tail wagging a huge dog) is a reasonable one. The court goes on to point out that Brand X says nothing about the relative predominance of telecommunications or information services, so if ISPs interweave two golden threads into an ordinary sweater, it is still reasonable to call it a “golden garment.” It’s hard to say how far the court would let this go; could the FCC still call broadband an information service even if no one ever uses the ISP’s DNS? Is it enough to simply “offer” a service like caching that no one asks for or has the choice of using or not using? As long as Brand X is the controlling case, the answer may be yes. 

The surest way to fix this unfortunate loophole is by making new law. Whether through the Save the Internet Act or another legislative measure to cement strong net neutrality protections and preserve FCC authority, it is time for Congress to represent the will of the people in law. The overwhelming majority of Americans, Democrats and Republicans alike, support the protections laid down in the 2015 Open Internet Order; let’s get it done!

The post The D.C. Circuit’s opinion in Mozilla v. FCC: What does it mean? appeared first on Center for Democracy and Technology.

The post CDT’s Comments on the Bermuda Regulatory Authority’s Open Internet Consultation appeared first on Center for Democracy and Technology.