[governance] US House Bill to Affirm the Policy of the United States Regarding Internet Governance

[parminder]

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
by glib use of these slogans.

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/ 



  Will Walden Wipe Out DMCA and CISPA To Take Out Net Neutrality In The
  Name of “Internet Freedom?”

By Harold <http://www.wetmachine.com/author/harold/>| April 10, 2013

Today, the House Energy and Commerce Subcommittee on Communications and 
Technology 
<http://energycommerce.house.gov/subcommittees/communications-and-technology> 
will begin mark up 
<http://docs.house.gov/meetings/IF/IF16/20130410/100632/HMKP-113-IF16-20130410-SD001.pdf> 
of the so-called “Internet Freedom Bill 
<http://docs.house.gov/meetings/IF/IF16/20130410/100632/BILLS-113pih-InternetGovernance.pdf>.” 
As explained in the Majority Briefing Memo 
<http://docs.house.gov/meetings/IF/IF16/20130410/100632/HMKP-113-IF16-20130410-SD003.pdf>, 
we’re still on about that whole “the ITU will take control of the 
Internet and black helicopters will come for out name servers” thing 
<http://www.publicknowledge.org/blog/itu-wcit-and-internet-freedom>.”  
Unfortunately, as keeps happening with this 
<http://www.publicknowledge.org/blog/not-so-hidden-agendas-threaten-itu-kumbaya-mo>, 
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?

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 rural call completion problem 
<http://tales-of-the-sausage-factory.wetmachine.com/rural-call-completion-and-the-problem-of-network-neuropathy/>, 
taking the FCC out of the equation may have some unforseen nasty 
consequences that even Republicans might not like.

More below . . . .
**

*How The Heck Did Net Neutrality Get Into This?*

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 World Conference on 
International Telecommunications 
<http://en.wikipedia.org/wiki/ITU#World_Conference_on_International_Telecommunications_2012_.28WCIT-12.29> 
(WCIT) of the International Telecommunications Union 
<http://en.wikipedia.org/wiki/ITU> (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).

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 hearing last February 
<http://www.youtube.com/watch?v=yPmvW9FE7Uc> 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) sent a letter 
<http://www.publicknowledge.org/files/Letter%20to%20Chairman%20Walden%20from%20Ranking%20Member%20Eshoo%2002-25-13.pdf> 
to Subcommittee Chairman Greg Walden (R-OR) outlining concerns from 
various agencies and asked that the proposed bill be amended to say 
“/international/ government control,” just to make it clear that 
Congress did not intend to impact domestic policy.

Astoundingly, Chairman Walden refused this request to clarify the 
language. */That/* 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 /again/ 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 when Rep. Lee Terry tried to hijack this for an anti-net 
neutrality crusade 
<http://www.publicknowledge.org/blog/why-does-rep-terry-love-itu-and-hate-freedom>, 
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.

*Consequences of Screwing Around On This Are a Lot Broader Than Net 
Neutrality.*

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 
Kim Dotcom <http://en.wikipedia.org/wiki/Kim_Dotcom> or the folks at 
Dajaz1.com 
<http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml>). 
If the Internet Freedom bill is binding domestic law, then it becomes 
illegal for for the US Trade Representative to even */ask/* for the 
crazy train copyright crap it put in ACTA 
<http://publicknowledge.org/blog/acta-if-you-write-trade-agreement-no-one-will> 
and keeps demanding as part of the Trans-Pacific Partnership 
negotiations <http://publicknowledge.org/issues/tppa>.

Similarly, any hope broadcasters might have that Congress will pass a 
“fix” to the Aereo decision 
<http://publicknowledge.org/blog/unsolicited-advice-broadcasters-wake-aereo-de> 
would appear dead on arrival if the proposed Internet Freedom bill 
applies to domestic policy.

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.

Also, as I noted in my testimony 
<http://www.publicknowledge.org/harold-felds-wcit-hearing-testimony-feb-5-2013> 
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 top-secret closed door mark up 
<http://www.techdirt.com/articles/20130409/14053622647/law-should-never-be-secret-so-why-will-cispa-debate-be-secret.shtml> 
of the Cyber Intelligence Sharing And Protection Act 
<http://en.wikipedia.org/wiki/Cyber_Intelligence_Sharing_and_Protection_Act> 
(CISPA) today and say “sorry folks, but */my/* Subcommittee is about to 
mark up a bill that will make your bill illegal – sucks to be you!”

  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?

  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 rural call completion stuff 
<http://publicknowledge.org/blog/rural-phone-calls-and-network-neuropathy> 
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?

  Also, you might end up someplace like the Second Circuit, which 
demonstrated only last week in the Aereo decision that it actually 
understands what /stare decisis 
<http://en.wikipedia.org/wiki/Stare_decisis>/ 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 /mentioned/ 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, /at a minimum/, the stuff Congress 
considered “government control” of the Internet included cybersecurity 
and efforts to stop spam – not net neutrality.

*Go Ahead, Make My Day . . .*

  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.

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 
as a glide-path to deregulation 
<http://www.publicknowledge.org/blog/comcasts-very-scary-pstn-filing>. 
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?

  As a speaker at the 2012 Republican Convention in Orlando once 
famously said: “Go ahead, make my day 
<http://www.youtube.com/watch?v=mevxenJ6Mtc>.”

Stay tuned . . . .


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