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Net Neutrality

Congress to Reexamine Consumer Privacy on Broadband Networks

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.

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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.”

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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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