Will Walden Wipe Out DMCA Just To Hack At Net Neutrality? Make My Day!
Will Walden Wipe Out DMCA Just To Hack At Net Neutrality? Make My Day!
Will Walden Wipe Out DMCA Just To Hack At Net Neutrality? Make My Day!

    Get Involved Today

    Today, the House Energy and Commerce Subcommittee
    on Communications and Technology
    will begin mark
    of the so-called “Internet
    Freedom Bill
    .” As explained in the Majority
    Briefing Memo
    , 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
    .”  Unfortunately,
    as keeps
    happening with this
    , 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

    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
    (WCIT) of the International Telecommunications Union
    (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
    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
    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
    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 or the folks at Dajaz1.com).
    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
    and keeps demanding as part of the
    Trans-Pacific Partnership negotiations

    Similarly, any hope broadcasters might have that Congress
    will pass a “fix” to the Aereo
    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
    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
    of the 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

    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
    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 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
    . 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

    As a speaker at the 2012 Republican Convention in Orlando
    once famously said: “Go
    ahead, make my day