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Net Neutrality

U.S. Technology Could Thwart Chinese Internet Censorship

June 18 – Technologies exist that allow Chinese internet users to evade government censorship, but their deployment is being thwarted by American companies based in China, panelists said Wednesday at a hearing of the United States-China Economic and Security Review Commission.

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By William G. Korver, Reporter, BroadbandCensus.com

WASHINGTON, June18 – Technologies exist that allow Chinese internet users to evade government censorship, but their deployment is being thwarted by American companies based in China, panelists said Wednesday at a hearing of the United States-China Economic and Security Review Commission.

A technology called Psiphon allows internet users to bypass China’s requirement that all foreign Web sites go through one of three gatekeeping firewalls, said Ron Deibert, speaking on behalf of the Open Net Initiative, which developed Psiphon.

The Open Net Initiative is a partnership of the Berkman Center for Internet and Society at Harvard Law School, and Cambridge University, Oxford University and the University of Toronto. Deibert is director of the Citizen Lab at the Munk Centre for International Studies at the University of Toronto.

Deibert said that Psiphon may be an answer to allow people in China to circumvent Beijing’s purposeful and repeated attempts to hinder free speech. Without the technology, an internet user attempting to access a Web site restricted by the Chinese government is confronted with an “error” screen on his or her computer.

Xiao Qiang, director of China Internet Project at the University of California, Berkeley, agreed with Deibert that China would not be able to conduct internet censorship without the cooperation of U.S. companies like Cisco Systems, which manufacturers internet routers.

Qiang said that more and more evidence is now surfacing about how the Chinese are blocking websites, enabling better means of circumventing such censorship.

Both were testifying on a panel about access to the Internet and Chinese filtering as a part of a two-day hearing before the U.S.-China Economic and Security Review Commission, which was held in a Senate office building. Several members of the commission were worried about Beijing’s interpretation of Psiphon – particularly if it there were a concerted effort to promote its use by the United States – as an act of information warfare.

Established by Congress in 2000, the commission’s purpose is to monitor, investigate and submit an annual report on the economic relations between the U.S. and China. Of its twelve members, three each were selected by the Republican and Democratic leaders of the House and the Senate.

All panelists on the internet filtering panel agreed that China’s efforts to control the Internet were rampant in the rural areas. But Randoph Kluver, director of the Institute for Pacific Asia at Texas A&M University, who initially spoke on an earlier panel about information control and the media, said that there are a number of holes in what has been dubbed the “Great Firewall of China.” As a result, China’s cities are relatively free from censorship, he said.

Still, as a result of widespread internet filtering, the majority of the population knows little or nothing of the protests and uprisings in Myanmar, said Lucie Morillon, the Washington representative for Reporters Without Borders, who also spoke on the panel with Kluver.

Qiang said that a free and open internet is more pressing than ever because China has now surpassed the U.S. as the country with the most internet users. The enormous rise in the number of internet users is partially due to the increase of cell phones with internet acces, he said.

Responding to questions posed by commission member Patrick Mulluy, the panelists said that Article 19 of the U.N. Declaration of Human Rights, which has been signed by the People’s Republic of China, obligates the nation to permit freedom of the press.

In China, Kluver said, economic benefits almost always trump rights perceived as political. Agreeing, Morillon said that in global rankings of a free and independent press, China is fifth from the bottom.

Unlike the West’s traditional embrace of freedom of the press, some 80 percent of Chinese internet users believe the Internet should be controlled, said Kluver. Most of these Chinese consider the government of China to be the most appropriate internet censor.

Disagreeing, Dan Southerland, executive editor of Radio Free Asia, said that the number of nomadic and rural Chinese listening to RFA broadcasters – or bribing rural officials to capture RFA’s satellite signal – demonstrated support for a free press. Southerland, speaking on a panel about China’s grappling with ethnic unrest and outbreaks of infectious diseases, questioned Kluver’s findings.

Morillon echoed Southerland’s perspective by noting that Beijing has routinely engaged in random repression aimed to remind journalists that government officials are watching. Morillon was heartened by Beijing’s decision to lessen restrictions on foreign journalists, at least until the end of October, as a positive but far-from-adequate development.

Beijing’s tendency to suppress knowledge of emerging infectious diseases backfired during the 2002-2003 SARS epidemic, said retired Col. Susan Puska. It resulted in a further spreading of the disease, potentially endangering the U.S. Speaking on the infectious diseases panel, she said Beijing only responds after leaks to the outside world occur.

Southerland stated his opinion that the Chinese media “initially [did a] pretty good job” at openly and honestly reporting on the March earthquake. The Chinese media has often made unflattering comparisons to the U.S. government’s widely-criticized response to Hurricane Katrina with the generally-praised response of the Chinese military to the recent March earthquake, Morillon said.

Beijing repeatedly blames the foreign press for various internal failures, the panelists said. A government insinuation that foreigners might be responsible for a particular problem often results in full-scale demonstrations against the West, such as a recent anti-CNN movement. This allows the government to circumvent potentially damaging issues with little backlash, the panelists agreed.

To help encourage a more robust domestic Chinese press, Southerland suggested that the U.S. fund schools of investigative journalism for members of the Chinese media.

Net Neutrality

FCC’s Simington Welcomes Congressional Action on Net Neutrality

The commissioner prefers going the route of legislation over Democratic FCC commissioners leading the charge for neutrality protections.

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Photo of Federal Communications Commissioner Nathan Simington, left

WASHINGTON, June 1, 2022 – Federal Communications Commissioner Nathan Simington said last week he would welcome congressional legislation to address debates over policy on net neutrality that continue to rage as the commission considers provisions that would protect the principle.

In a keynote address at an event Thursday on net neutrality hosted by think tank The R Street Institute, the Republican commissioner — who has opposed the net neutrality provisions imposed in 2015 by the commission under the former President Barack Obama – indicated he would prefer legislative action on net neutrality policy to proposals of Democratic FCC commissioners to regulate it through policy of the commission.

“Personally I would welcome congressional action to put this issue to rest,” said Simington, “I think a good law would focus on preventing blocking.”

Under the administration of former President Donald Trump, the FCC had in 2017 reversed the Obama-era net neutrality provisions, which prevented internet service providers from having a hand manipulating the data traffic over their networks to do things like provide faster or free access to certain applications.

Simington’s comment is significant for two reasons: because it comes after FCC Chairwoman Jessica Rosenworcel told lawmakers earlier this year that she is committed to the idea of the restoration of net neutrality principles; and because the commission is on the cusp of a Senate-approved fifth commissioner in Democrat and net neutrality advocate Gigi Sohn, which would break the 2-2 party split and would signal less friction when approving the Democratic agenda.

Thursday’s event also featured a panel that discussed issues such as whether a new agency must be created to deal with issues of net neutrality or whether an existing body such as the Federal Trade Commission can fulfill that role.

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Net Neutrality

Ninth Circuit Court of Appeals Denies Efforts to Eliminate California Net Neutrality Law

A coalition of telecommunication trade associations were unable to sway the court.

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Photo of FCC Chairwoman Jessica Rosenworcel

April 20, 2022 – The U.S. Court of Appeals for the Ninth Circuit on Wednesday denied the efforts of telecommunications trade groups to to rehear its prior decision upholding California’s 2018 net neutrality law.

In January, the court turned back industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, who had sought to overturn California’s SB 822 on the grounds that the Federal Communications Commission federal rules on net neutrality conflict with California’s state level rules.

Then, the appeals court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

On Wednesday, the appeals court refused to reconsider whether the California law had been preempted by the FCC’s decision.

In January 2018, the FCC – administered by then-Commissioner Ajit Pai – rescinded rules put in place in 2015 by the Obama administration that had reclassified broadband services from “information services” to “telecommunication services.” The latter category is subject to far more regulations.

Later that year, California passed SB 822, putting net neutrality requirements in place for California consumers, even after the rules had been gutted at the federal level by the FCC.

On the federal level, the D.C. Circuit Court of Appeals upheld the Trump administration’s removal of net neutrality requirements in October 2019. Although the Pai FCC’s reclassification was largely upheld by the D.C. circuit court, the victory was tempered by the court’s decision, by a two-to-one margin, to vacate the FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

In a tweet about Wednesday’s ruling, FCC Chairman Jessica Rosenworcel said:

  • The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law. This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land.

“As expected, the 9th U.S. Circuit Court of Appeals has rejected yet another attempt by internet service providers to overturn California’s strong net neutrality law,” said John Bergmayer, Legal Director at Public Knowledge.

“The California net neutrality law is now undefeated in court after four attempts to eliminate it,” he said. Net neutrality protections nationally continue to be common sense and popular with the public among all ideologies. It’s good news that Californians will continue to enjoy this important consumer protection, and we look forward to a full Federal Communications Commission restoring net neutrality nationwide.”

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Net Neutrality

Federal Appeals Court Upholds California’s Net Neutrality Rules

The ruling prevents internet providers in the state from abandoning net neutrality for broadband customers.

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Photo of Mary Schroeder, Chief Judge of the Ninth Circuit Court, from the May 2006 Swarthmore commencement address

January 28, 2022 – The Ninth Circuit Court of Appeals on Friday ruled against broadband companies seeking to block a state net neutrality law, and internet policy advocates are calling it a win for consumers in California.

The ruling comes after industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, sought to overturn California’s law on the grounds that the Federal Communications Commission’s now-abandoned federal rules on net neutrality conflict with California’s state level rules.

The court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

SB 822, or the California Internet Consumer Protection and Net Neutrality Act of 2018, restricts internet service providers from some activities. For example, the state law prevents paid prioritization, or agreements that would optimize data transfer rates large companies including Facebook, Google and Netflix.

The law also prohibits so-called “zero-rating” practices that some believe exploit consumers by allowing free access to some services but not others.

John Bergmayer, legal director at Public Knowledge, called the ruling a “great decision and a major victory for internet users in California and nationwide.”

“When the FCC has its full complement of commissioners, it should put into place rules at least as strong as California’s nationwide, making some state measures unnecessary. But even after that happens, this decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”

But Randy May, president of the Free State Foundation, said “like a lot of Ninth Circuit decisions, it is arguable that the court got the law wrong regarding whether California’s net neutrality law is preempted. Given the inherently interstate nature of today’s tightly integrated broadband internet networks, there’s a good chance that other circuits might reach a different conclusion regarding preemption.

May said that the risks of a patchwork of state regulations “should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem.”

The opinion was authored by Ninth Circuit Chief Judge Mary Schroeder and joined by Judge Danielle Forrest with a concurrence by Judge J. Clifford Wallace.

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