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They seem to really tying themselves in knots about 'Internet
freedom' and 'government control'... almost fun to watch, having
seem US establishment for many years now trying to fool the world <br>
by glib use of these slogans. <br>
<br>
<a class="moz-txt-link-freetext" href="http://tales-of-the-sausage-factory.wetmachine.com/will-walden-wipe-out-dmca-and-cispa-to-take-out-net-neutrality-in-the-name-of-internet-freedom/">http://tales-of-the-sausage-factory.wetmachine.com/will-walden-wipe-out-dmca-and-cispa-to-take-out-net-neutrality-in-the-name-of-internet-freedom/</a>
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<br>
<h1 class="entry-title">Will Walden Wipe Out DMCA and CISPA To Take
Out Net Neutrality In The Name of “Internet Freedom?”</h1>
<div class="entry-meta"><span class="author vcard">By <a class="url
fn n" href="http://www.wetmachine.com/author/harold/"
title="View all posts by Harold">Harold</a></span><span
class="meta-sep"> | </span><span class="entry-date"><abbr
class="published" title="2013-04-10T09:19:15-0400">April 10,
2013</abbr></span></div>
<p>Today, the House Energy and Commerce <a
href="http://energycommerce.house.gov/subcommittees/communications-and-technology">Subcommittee
on Communications and Technology</a> will begin <a
href="http://docs.house.gov/meetings/IF/IF16/20130410/100632/HMKP-113-IF16-20130410-SD001.pdf">mark
up</a> of the so-called “<a
href="http://docs.house.gov/meetings/IF/IF16/20130410/100632/BILLS-113pih-InternetGovernance.pdf">Internet
Freedom Bill</a>.” As explained in the <a
href="http://docs.house.gov/meetings/IF/IF16/20130410/100632/HMKP-113-IF16-20130410-SD003.pdf">Majority
Briefing Memo</a>, we’re still on about that whole “<a
href="http://www.publicknowledge.org/blog/itu-wcit-and-internet-freedom">the
ITU will take control of the Internet and black helicopters will
come for out name servers” thing</a>.” Unfortunately, as <a
href="http://www.publicknowledge.org/blog/not-so-hidden-agendas-threaten-itu-kumbaya-mo">keeps
happening with this</a>, 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 Neutrality?
<br>
</p>
<p>As I elaborate below, however, this is not so much a stab at net
neutrality and the FCC generally as it is a murder/suicide. You
can’t claim that this clips the wings of the FCC to do net
neutrality by making a law that the U.S. is opposed to “government
control” of the Internet without also eliminating laws that deal
with cybersecurity, copyright enforcement online, privacy, and a
range of other stuff that are just as much “government control” of
the Internet — but that most Republicans opposed to net neutrality
actually like. Plus, as I noted last week when discussing the <a
href="http://tales-of-the-sausage-factory.wetmachine.com/rural-call-completion-and-the-problem-of-network-neuropathy/">rural
call completion problem</a>, taking the FCC out of the equation
may have some unforseen nasty consequences that even Republicans
might not like. <br>
</p>
<p>More below . . . . <br>
<b> </b></p>
<p><b>How The Heck Did Net Neutrality Get Into This?</b> <br>
</p>
<p>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 <a
href="http://en.wikipedia.org/wiki/ITU#World_Conference_on_International_Telecommunications_2012_.28WCIT-12.29">World
Conference on International Telecommunications</a> (WCIT) of the
<a href="http://en.wikipedia.org/wiki/ITU">International
Telecommunications Union</a> (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). <br>
</p>
<p>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 <a
href="http://www.youtube.com/watch?v=yPmvW9FE7Uc">hearing last
February</a> 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) <a
href="http://www.publicknowledge.org/files/Letter%20to%20Chairman%20Walden%20from%20Ranking%20Member%20Eshoo%2002-25-13.pdf">sent
a letter</a> to Subcommittee Chairman Greg Walden (R-OR)
outlining concerns from various agencies and asked that the
proposed bill be amended to say “<i>international</i> government
control,” just to make it clear that Congress did not intend to
impact domestic policy. <br>
</p>
<p>Astoundingly, Chairman Walden refused this request to clarify the
language. <b><i>That</i></b> 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 <i>again</i>
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 <a
href="http://www.publicknowledge.org/blog/why-does-rep-terry-love-itu-and-hate-freedom">when
Rep. Lee Terry tried to hijack this for an anti-net neutrality
crusade</a>, 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. <br>
</p>
<p><b>Consequences of Screwing Around On This Are a Lot Broader Than
Net Neutrality.</b> <br>
</p>
<p>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 <a
href="http://en.wikipedia.org/wiki/Kim_Dotcom">Kim Dotcom</a> or
the folks at <a
href="http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml">Dajaz1.com</a>).
If the Internet Freedom bill is binding domestic law, then it
becomes illegal for for the US Trade Representative to even <b><i>ask</i></b>
for the <a
href="http://publicknowledge.org/blog/acta-if-you-write-trade-agreement-no-one-will">crazy
train copyright crap it put in ACTA</a> and keeps <a
href="http://publicknowledge.org/issues/tppa">demanding as part
of the Trans-Pacific Partnership negotiations</a>. <br>
</p>
<p>Similarly, any hope broadcasters might have that Congress will
pass a “fix” to the <a
href="http://publicknowledge.org/blog/unsolicited-advice-broadcasters-wake-aereo-de">Aereo
decision</a> would appear dead on arrival if the proposed
Internet Freedom bill applies to domestic policy. <br>
</p>
<p>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. <br>
</p>
<p>Also, as I noted in my <a
href="http://www.publicknowledge.org/harold-felds-wcit-hearing-testimony-feb-5-2013">testimony</a>
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 <a
href="http://www.techdirt.com/articles/20130409/14053622647/law-should-never-be-secret-so-why-will-cispa-debate-be-secret.shtml">top-secret
closed door mark up</a> of the <a
href="http://en.wikipedia.org/wiki/Cyber_Intelligence_Sharing_and_Protection_Act">Cyber
Intelligence Sharing And Protection Act</a> (CISPA) today and
say “sorry folks, but <b><i>my</i></b> Subcommittee is about to
mark up a bill that will make your bill illegal – sucks to be
you!”</p>
<p> 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 enforcement?</p>
<p> 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 <a
href="http://publicknowledge.org/blog/rural-phone-calls-and-network-neuropathy">rural
call completion stuff</a> 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?</p>
<p> Also, you might end up someplace like the Second Circuit, which
demonstrated only last week in the Aereo decision that it actually
understands what <i><a
href="http://en.wikipedia.org/wiki/Stare_decisis">stare
decisis</a></i> 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 <i>mentioned</i>
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, <i>at a minimum</i>, the
stuff Congress considered “government control” of the Internet
included cybersecurity and efforts to stop spam – not net
neutrality. <br>
</p>
<p><b>Go Ahead, Make My Day . . .</b></p>
<p> 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.</p>
<p>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 <a
href="http://www.publicknowledge.org/blog/comcasts-very-scary-pstn-filing">as
a glide-path to deregulation</a>. 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 cybersecurity?</p>
<p> As a speaker at the 2012 Republican Convention in Orlando once
famously said: “<a
href="http://www.youtube.com/watch?v=mevxenJ6Mtc">Go ahead, make
my day</a>.”</p>
<p> </p>
<p>Stay tuned . . . .</p>
<br>
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