WASHINGTON, April 23, 2009 – Congressional scrutiny of consumer privacy on broadband networks, especially uses of so-called “deep packet inspection” technology, ramped up Thursday as industry representatives and consumer advocates testified before the House Energy and Commerce Subcommittee on Communications, Technology and the Internet.
“Broadband networks are a primary driver of the national economy,” said subcommittee chairman Rick Boucher, D-Va. It is “fundamentally in the nation’s interest to promote their expanded use,” he said.
Boucher acknowledged that technologies like DPI have beneficial uses for network management and law enforcement. But DPI’s potential for invading consumer privacy is “nothing short of frightening,” he said.
Boucher, who has previously stated his commitment to passing comprehensive privacy legislation during the 111th Congress, announced that his subcommittee would hold a joint hearing with the Commerce, Trade and Consumer Protection subcommittee early this summer which would focus privacy and Internet-based companies like Google.
Boucher hinted that the privacy bill, which he wants to develop on a bipartisan basis, would be based largely on the Consumer Privacy Protection Act introduced in the 109th Congress by then-Chairman Cliff Stearns, R-Fla.
Stearns, now the ranking member of the subcommittee, cautioned against acting too swiftly against new technologies before their effects on consumers could be documented. “It’s imperative that there be some evidence of harm if we are going to regulate [DPI],” he said. “Overreaching privacy regulation – particularly in the absence of consumer harm – could have a significant negative economic impact.”
Privacy legislation should go beyond broadband and apply to all Internet-based companies equally, said Stearns, now the subcommittee’s ranking member. “Consumers don’t care if you are a search engine or a broadband provider,” he said. “They just want to ensure that their privacy is protected.”
Rep. Mary Bono Mack, R-Calif., agreed with Stearns call for a unitary regulatory structure. “I don’t think we should be out to get one particular industry,” she said.
Rep. Anna Eshoo, D-Calif., said the “growing tide of critics” supporting a single regime “do not understand the purpose of our privacy laws.”
Holding web-based services and telecommunications carriers to the same set of regulations is “neither practical, nor prudent,” Eshoo said. Different industries should be governed fairly, she said – but not under the same regulatory structure.
“It’s time to modernize our telecommunications policies,” said Rep. Bart Stupak, D-Mich. Consumers often have no idea what information is being collected about them, he said, much less the opportunity to give consent.
Stupak said current law does not give a clear definition of when affirmative consent is required to collect information.”Without clear direction from Congress…information will continue to go unprotected,” he said.
Center for Democracy and Technology President Leslie Harris said the use of DPI on broadband networks “raises profound questions about the future of privacy, openness and innovation online.” Even legitimate uses of the technology could fall victim to “mission creep” and be misused by government or broadband providers, Harris said. Network Neutrality legislation would be a good complement to privacy legislation, she suggested.
Free Press Policy Director Ben Scott noted that scenarios that were only hypothetical during past network neutrality debates were now becoming proposed business models thanks to DPI technologies being marketed by several vendors. And DPI technology “has evolved from innocuous…to potentially insidious,” he said, calling for a “bright line rule” on consumer protection.
NCTA CEO Kyle McSlarrow said that no cable internet service provider is currently using DPI for behavioral targeting. “Good privacy protection is also good business,” he said. DPI has been used legitimately by cable ISPs “for many years now — and for many good reasons,” including spam deterrence, McSlarrow said.
Cable ISPs are not doing any tracking, he said, objecting to the term “Deep Packet Inspection” and the alarm that often accompanies it. “The only tracking I want to do is to track down the engineer who came up with the term ‘deep packet inspection’…and shoot him.”
As the FCC develops a national broadband strategy, how its four principles of network neutrality are incorporated into any regulatory will come down to behavior, Scott said in an interview.
The FCC’s principles are a good starting point, but they aren’t enough when companies violate consumer privacy for commercial purposes, he said. Applying common carrier principles to broadband providers through privacy law would provide a critical fifth point, he said.
But in a separate interview, Boucher disagreed with Scott’s analogy. Boucher said as he moves forward with privacy legislation and oversight of telecommunications regulation – including the $7.25 billion broadband stimulus, network openness and consumer privacy will be treated as “separate and distinct issues.”
GOP Congresswoman Says FCC Puts Politics Over the Law
‘Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats.’
WASHINGTON, October 28, 2022 – Rep. Cathy McMorris Rodgers, R–Wash., accused the Federal Communications Commission of politicized actions in excess of its statutory authority, in a letter sent in September and apparently released by the agency last week.
To prevent possible FCC overreach, McMorris Rodgers, the ranking member of the House Energy and Commerce Committee, asked FCC Chairwoman Jessica Rosenworcel to provide a list of pending and expected rulemakings, and the congressional authorizations therefor. Rosenworcel responded earlier this month in a letter released with the congresswoman’s original correspondence.
The Washington Republican wrote that the Biden administration has been overly reliant on executive orders and cited recent Supreme Court precedent as evidence. McMorris Rodgers highlighted the Environmental Protection Agency’s loss in West Virginia v. EPA, in which the Court invoked the “major questions doctrine,” a legal doctrine limiting of the executive branch’s ability to permissively interpret Congress’s statutory language. She also referenced the Court’s rejection of the Center for Disease Control’s eviction moratorium and the Occupational Health and Safety Administration’s vaccine or testing mandate.
“Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats,” McMorris Rodgers wrote.
“I assure you the Committee and its members will exercise our robust investigative and legislative powers to not only forcefully reassert our Article I responsibilities, but to ensure the FCC under Democrat leadership does not continue to exceed Congressional authorizations,” she added.
Is net neutrality coming back?
In April 2021, McMorris Rodgers co-signed a letter with numerous congresspeople urging Rosenworcel to reject net neutrality, a policy supported by the chairwoman.
Today’s FCC is evenly split between Republicans and Democrats, one commissioner short of the standard five. President Joe Biden nominated Gigi Sohn for the fifth spot, but her nomination is stalled due to Republican opposition in the Senate. Since Sohn supports net neutrality, some experts believe the FCC may once again pursue the policy should Sohn be confirmed.
Johnny Kampis: Democrats Needlessly Push Another Round of Net Neutrality Legislation
The Net Neutrality and Broadband Justice Act may harm the ability of broadband infrastructure to grow.
It ain’t broke, but Democrats keep trying to “fix” it.
July 28 saw the introduction of a bill to reimplement Title II regulations on broadband providers, paving the way for a second attempt at “net neutrality” rules for the internet.
Led by Sen. Ed Markey, D-Mass., along with co-sponsors Sen. Ron Wyden, D-Ore., and Rep. Doris Matsui, D-Calif., the comically named Net Neutrality and Broadband Justice Act would classify ISPs as common carriers and give the Federal Communications Commission significant power to regulate internet issues such as pricing, competition, and consumer privacy.
Markey claims that the deregulation of the internet under former FCC Chairman Ajit Pai left broadband consumers unprotected. But as data has shown, and Taxpayers Protection Alliance’s own investigation highlighted, no widespread throttling, blocking or other consumer harm occurred after the Title II rules were repealed.
Randolph May, president of the Free State Foundation, noted after Markey’s bill was released that nearly all service providers’ terms of service contain legally enforceable commitments to not block or throttle the access of their subscribers to lawful content.
Markey said his legislation, which would codify broadband access as an essential service, will equip the FCC with the tools it needs to increase broadband accessibility.
The country already has the tools it needs to close the digital divide, with billions in taxpayer dollars flowing to every state to boost broadband access. For example, less than $10 billion in federal funding was dedicated to broadband in 2019, but an incredible $127 billion-plus in taxpayer dollars will be dedicated to closing the digital divide in the coming years. That doesn’t even count the nearly $800 billion in COVID-19 relief and stimulus funding that could be used for multiple issues, including broadband growth.
The bill’s proponents say that the FCC can foster a more competitive market with the passage of the legislation. FCC’s data already indicate the market is extremely competitive, with 99 percent of the U.S. population able to choose between at least two broadband providers. That doesn’t even account for wireless carriers and their rapid development of 5G.
The Net Neutrality and Broadband Justice Act may instead harm the ability of broadband infrastructure to grow without funneling even more taxpayer money toward the cause. Studies have shown that private provider investment increased after the regulatory uncertainty of Title II rules were removed. Prior to the reversal of the 2015 Open Internet Order, broadband network investment dropped more than 5.6 percent, the first decline outside of a recession, the FCC reported.
US Telecom reported that capital expenditures by ISPs totalled $79.4 billion in 2020 and grew to $86.1 billion in 2021.
Michael Powell, president and CEO of NCTA – The Internet & Television Association, called the issue of net neutrality “an increasingly stale debate” with justifications for it that “seem increasingly limp.”
“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said. “Building broadband to unserved parts of this country is a massive, complex, and expensive undertaking. Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected.”
Again, the specter of Title II regulations rears its ugly head for no discernible reason other than the government’s insatiable need for control. The broadband market has proven itself as a market that functions better with a light-touch approach, so we hope that Congress says not to this misguided bill.
Johnny Kampis is director of telecom policy for the Taxpayers Protection Alliance. This piece is exclusive to Broadband Breakfast.
Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to firstname.lastname@example.org. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.
Democrats Seek to Codify Net Neutrality as Fifth FCC Commissioner Hangs
Some say the bill would add heavy regulation that will harm investments and consumers.
WASHINGTON, August 1, 2022 – Democratic Senators introduced Thursday a bill that would enshrine into law the concept of net neutrality, which would prevent internet service providers from tinkering with internet traffic, in a move that comes ahead of midterm elections that could alter whether the Federal Communications Commission gets its Democratic fifth commissioner to take unilateral action on the matter.
The Net Neutrality and Broadband Justice Act would give the FCC regulatory authority over broadband by classifying those services as Title II as defined in the 1934 Communications Act. Under Title II, the FCC would have greater regulatory muscle to make providers respect the principle of common carriage – that is, the traffic on their networks will not be throttled, sped up or given preference. Under the current light touch Title I – which was reinstituted by the 2017 commission under chairman Ajit Pai – the FCC does not have that authority, and the commission has previously been blocked by courts to bring net neutrality under Title I.
“My legislation would reverse the damaging approach adopted by the Trump FCC, which left broadband access unregulated, and consumers unprotected. It would give the FCC the tools it needs to protect the free and open internet, creating a just broadband future for everyone in our country,” Senator Edward Markey, D-Mass., said during a virtual press conference hosted by Public Knowledge on Thursday.
Markey noted that the majority of Americans and Republicans favor restoring net neutrality rules in the country.
Public Knowledge, an advocacy group for an open internet, was co-founded by Gigi Sohn, who was nominated by President Joe Biden to be the fifth FCC commissioner. The vote to confirm in the Senate has not happened yet, as some Republicans have complained about Sohn’s ability to be impartial on the commission.
“We’ve gone 544 days into the Biden administration without a fully functional agency. It’s time for Senate leadership to end this senseless delay and get the agency back to full capacity,” said Matt Wood, vice president of policy and general counsel at Free Press Action, in a press release welcoming the bill.
Reintroduction of bill comes as Sohn’s nomination to FCC appears to falter
Sohn, who would be the party tiebreaker on the commission, would have bolstered the FCC’s chance to press for a reclassification of broadband services under Title II. But the longer a vote is not held, the less optimistic some say they are getting that a vote will be held before a midterm election in November that could flip the Senate red.
“Confirmation is still possible, but with the extended August recess and looming midterm election, there aren’t a lot of legislative days to get the job done,” said former FCC Chairman Richard Wiley at an event late last month.
Republican Commissioner Nathan Simington previously said that he would welcome congressional action on net neutrality – instead of an FCC vote on it.
“I have previously stated that the FCC’s 2015 Net Neutrality rules were the right approach,” said FCC Commissioner Geoffrey Starks in a press release. “That approach is undergirded by a voluminous record and overwhelming public support, and it has been tested in court. The Net Neutrality and Broadband Justice Act would codify just that,”
The bill comes after FCC Chairwoman Jessica Rosenworcel has repeatedly said that she believes net neutrality should be the guiding principle for the internet economy. Rosenworcel was defiant in her support of the principle in response to a letter from Republican representatives who encouraged her not to change her mind on it.
She added in a statement after the bill’s introduction that despite the FCC having the authority it needs to implement net neutrality, “legislation that helps ensure it is the law of the land is welcome.”
“For anyone who wants more innovation, more voices and less corporate control of the internet, net neutrality is an absolute no-brainer,” said Ron Wyden, D-OR, who co-introduced the bill. In 2018, Verizon admitted to throttling the wireless speeds used by California firefighters who were working on a large fire – one of the examples used to illustrate the imposition of such rules.
As such, California has gone its own way in lieu of inaction from Washington. The state won a court battle this year from broadband industry that challenged its own net neutrality law. The law made AT&T pull free sponsored applications to residents.
Critics of the net neutrality measure from the broadband industry
But broadband service providers and the commission that reversed net neutrality rules don’t see it that way. They say that regulations imposed by a net neutrality framework hinders innovation and competition in the market – including being able to provide free access to certain applications.
Michael Powell, CEO of trade association NCTA, said this bill will have a negative effect on closing the digital divide.
“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said.
“Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected,” said Powell.
The Wireless Internet Service Providers Association also came out against the bill, saying heavy regulation would hamper their ability to serve underserved areas of the country. “The bill’s Title II requirements would create real threats to their ongoing viability,” the release said.
“Net neutrality may be a mixed bag, but common carrier regulation would inhibit competition, private investment and innovation, and further confound the complex task of eradicating the digital divide,” it added.
Another trade group USTelecom said it is concerned such regulation would hamper investments in broadband networks. “There is bipartisan support for net neutrality, but legislative proposals that would put any of this progress at risk are not the right answer,” said CEO Jonathan Spalter in a release. “Let’s keep our focus on moving consumers’ internet experiences forward, not backward.”
Non-profit research institution the Free State Foundation added that this type of bill will impose heavy-handed regulation that will harm consumers.
“[T]here is no present evidence, and there hasn’t been any for years, that ISPs have engaged in any deliberate discriminatory conduct,” said the FSF in a press release. “Almost all ISPs’ terms of service contain legally enforceable commitments not to block or throttle subscribers’ access to lawful content.
“To the extent that a couple of old incidents are cited that conceivably would run afoul of stringent anti-discrimination prohibitions, they have been isolated and quickly remedied,” the FSF added. “That’s why the net neutrality advocates are left to conjecture about what ‘might,’ ‘could,’ or ‘possibly’ happen absent new regulation, rather than identifying any existing problem warranting costly new regulatory mandates.”
With reporting by Riley Haight.
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