Web

States are waging guerrilla warfare to save net neutrality. Here’s how

net neutrality protest
NurPhoto/Getty Images
NurPhoto/Getty Images

In late 2017, the FCC voted to reverse net neutrality rules — but those in favor of an open internet aren’t going down without a fight. Opposition has already begun its move against the FCC’s decision, and it’s played out in many different ways.

In mid-January, attorney generals from 21 states and the District of Columbia moved to sue the FCC in an attempt to overturn the December vote. Meanwhile, Senator Ed Markey is pursuing rules in the Congressional Review Act, which allow Congress to undo certain agency decisions, like those of the FCC. Republicans successfully used the act last year to reverse a number of Obama administration rulings, most notably, the broadband privacy rules on sharing customer data.

It’s giving net neutrality proponents reason for hope.

While both techniques could end up influencing at a federal scale, it’s individual state lawmakers and governors that’ve picked up the mantle of regulating ISP activity — and it’s giving net neutrality proponents reason for hope.

California’s Net Neutrality Gambit

It probably won’t come as a surprise that Silicon Valley has come out swinging in this fight. In late January, the first of two net neutrality laws in California passed the Senate and moved on to the state Assembly. (Confused by net neutrality? Here’s what you need to know.)

The bill (SB460), which passed 21-12, would require ISPs operating in the state to follow the kinds of net neutrality rules that were in place at a federal level before they were repealed by the FCC in December. It is a direct rule against all ISPs to operate neutrally.

The bill is being championed by President pro tempore of the California State Senate, Kevin de León. If passed, it would allow California to enforce net neutrality via its consumer protection laws, which are some of the most stringent in the country, and add regulations overseeing unfair business practices, which would prevent ISPs from misrepresenting themselves to customers – as with claimed connection speeds, for example. The laws are already used to protect consumers against fraudulent purchases, like selling an overpriced used car with undeclared damages or faults.

Should it pass, the bill would enshrine net neutrality into Californian law and twist the arms of ISPs into complying with the principles.

According to the Electronic Frontier Foundation, the efforts of California are headed in the right direction but face serious legal hurdles. Many state laws can be overturned or invalidated by federal policy.

EFF’s Ernesto Falcon suggests that California, which spends millions of dollars on broadband subsidy programs with ISPs like AT&T, should mandate that these ISPs follow net neutrality rules to receive funding. California has more than four million utility poles across the state, and this infrastructure is key for ISPs to deliver their services. Falcon said that California, not the FCC, has the power to regulate who has access to the poles, and can impose net neutrality as a condition for this access.

“California’s economy is so large that policy changes in the state may push industry to respond.”

According to the EFF, the subsidies and poles are small but very significant aspects of the state’s broadband system that cannot be overlooked. If these aspects go unheeded in regulation, it could create a gap in the fence for ISPs and federal authorities to challenge it. EFF is hoping Wiener’s bill picks up this slack. Nevertheless, the efforts of California, the nation’s most populous state, will set a tone.

“The size of California’s economy is so large that policy changes in the state may push industry to respond. For instance, years ago, the automobile industry responded to air regulations passed by California that were stricter than national-level regulations,” said William Hatcher, PhD, associate professor from the Department of Social Sciences at Augusta University.

Hands off our state contracts

Other states have taken a different approach that may be more effective.

Montana governor Steve Bullock, a Democrat, signed an executive order in January that prohibits state agencies from granting contracts to ISPs that do not observe net neutrality. As a result, ISPs that do not treat internet traffic equally will be ineligible to apply for contracts and supply their services to the state. This a roundabout way of enforcing net neutrality without enacting entirely new legislation like in California. The Montana order goes into effect on July 1 and will impact AT&T and Verizon.

In late January, Andrew Cuomo, the governor of New York, signed a similar executive order.

net neutrality state andrew cuomo
Drew Angerer/Getty Images
Governor of New York, Andrew Cuomo (Drew Angerer/Getty Images)

“The FCC’s dangerous ruling goes against the core values of our democracy, and New York will do everything in our power to protect net neutrality and the free exchange of ideas,” said Cuomo upon signing the order.

The executive orders in New York and Montana are a wily attempt to avoid federal policy. They place new obligations on state agencies, rather than attempting to regulate the ISPs themselves. The New York order bars doing business with any ISPs that “block, throttle, or prioritize Internet content” or require users to “pay different or higher rates to access specific types of content or applications.”

By restricting what ISPs these agencies can do business with it will, in theory, force the ISPs to comply with net neutrality, or risk losing out on lucrative state contracts.

“…we’re going to end up in court all over the country.”

“That’s a novel approach, and I think it’s got a decent chance of working,” explained Kevin Grierson, partner at law firm Culhane Meadows, which has offices around the country. The idea is catching on, and proves that the battle ground isn’t limited to the populous states like California and New York.

On February 5, New Jersey governor Phil Murphy signed his own executive order that places similar requirements on state agencies’ dealings with ISPs, stating that companies and individuals don’t have the “right to pay their way to the front of the line” on the internet.

Rhode Island is considering similar bills that would restrict what ISPs could obtain state contracts. Two separate bills introduced by two Democrats stipulate that any internet service purchased or funded by Rhode Island must adhere to net neutrality.

Challenges and backlash

These are all strong efforts, but they will face a host of challenges and counter-efforts to invalidate them.

“In my opinion, I think these efforts are not going to work out because internet service is considered an interstate service. This is regulated by the FCC,” said Nick Economides of the NYU Stern Business School, who specializes in electronic commerce and public policy and is pro-net neutrality. “I don’t think the states have jurisdiction. They can try, and then some court is going to say they don’t have jurisdiction.”

net neutrality state contracts
Chip Somodevilla
Chip Somodevilla

Economides believes that challenges to the FCC directly – much like what the attorneys general are doing – is a more effective method. If that is successful, the state laws would be unnecessary.

“The action is likely going to be pre-empted unless the states are able to truly show that these are purely one-off contracts and they’re not regulation,” explained Graham Owens, a legal fellow at DC think tank TechFreedom. “A lot of the rhetoric and statements made by governors and legislators is very clearly making the point that we’re doing this because the FCC is not. Somebody’s got to protect net neutrality, if they’re not going to do it, we’re going to do it —so unfortunately that is going to look like regulation.”

The ACLU’s Chad Marlow believes states should go ahead with their legislation and put the law to the test.

That’s a problem. The case for restricting state contracts centers on whether the state is acting as a regulator or a market participant. If a court finds a state is acting as the former, the FCC would be able to invalidate the law.

Even so, the ACLU’s Chad Marlow believes that states should go ahead with their legislation and executive orders, and truly put the law to the test.

“I think what’s going to happen is we’re going to end up in court all over the country. We’re going to have litigation and get different decisions all over the country. We’re going to end up having a mish mash of laws all over the country that I don’t think is going to be satisfactory to any stakeholders,” he said.

“If 25 or 30 states pass these laws or executive orders, we’re going to be tied up in litigation in 30 states for five years, maybe more, just trying to figure out what the state of the law is. That’s a unacceptable business environment, so maybe they’ll [ISPs] come around and say maybe net neutrality is a better state of affairs.”

At this point, all we say with any amount of certainty is that the fight for net neutrality is far from over — it’s only just begun.

Mobile

Google honors Veterans Day by highlighting military service stories

For Veterans Day, Google is honoring the heroes that served the country with a new Google Doodle that highlights the stories of five veterans from the five different branches of the military.
Computing

Should you buy the affordable MacBook Air, or is the MacBook Pro worth the price?

Though they both share Retina Displays and similar keyboards, there are still some specs differences and other changes which distinguish the new 2018 MacBook Air and MacBook Pro. In this guide, we stack the two up against each other.
Gaming

Struggling to survive 'Battlefield 5?' Our boot camp will keep you in the fight

Battlefield V's multiplayer component can be overwhelming, but you can succeed against the enemy with a little help. These are the tips and tricks you need to know to win in Battlefield V.
Computing

Will Chrome remain our favorite web browser with the arrival of newest version?

Choosing a web browser for surfing the web can be tough with all the great options available. Here we pit the latest versions of Chrome, Opera, Firefox, Edge, and Vivaldi against one another to find the best browsers for most users.
Computing

The Mac mini's price has crept into iMac territory. So how do they compare?

Apple announced a long-awaited update to the Mac mini. Thanks to the updated specs and increase in price, it's begun to creep up to the base model iMac. In this guide, we now put up the specs on the newest refreshed Mac mini against the…
Emerging Tech

Alibaba’s Singles’ Day sale smashes online shopping records

The annual online shopping frenzy that is Singles' Day this year raked in $30.8 billion, up from $25 billion last time around. The Alibaba-organized event generates more in sales than Black Friday and Cyber Monday combined.
Mobile

Apple to boost its Amazon presence with listings for iPhones, iPads, and more

Apple is about to start offering more of its kit on Amazon. The tech giant currently only has very limited listings on the shopping site, but the deal will see the arrival of the latest iPhones, iPads, MacBooks, and more.
Computing

If you've lost a software key, these handy tools can find it for you

Missing product keys getting you down? We've chosen some of the best software license and product key finders in existence, so you can locate and document your precious keys on your Windows or MacOS machine.
News

Zoom in on famous works through the Art Institute of Chicago’s new website

Art lovers, listen up. The Art Institute of Chicago has given its website a serious makeover with new features that let you get up close and personal with more than 50,000 artworks by famous (and not so famous) artists.
Computing

Over a million veterans now eligible for Comcast’s Internet Essentials program

Comcast's low-cost Internet Essentials program, which provides internet access for just $10 per month, has expanded to include U.S. veterans. One million veterans now qualify for the service.
Computing

Google’s Squoosh will get an image web-ready with in-browser compression

Google's latest web app development is an image editing and compression tool, Squoosh. In just a few clicks, it can take a huge image and make it much lighter and web-friendly, all in your browser.
Computing

Want to save a webpage as a PDF? Just follow these steps

Need to quickly save and share a webpage? The best way is to learn how to save a webpage as a PDF file, as they're fully featured and can handle images and text with ease. Here's how.
Social Media

‘Superwoman’ YouTuber Lilly Singh taking a break for her mental health

Claiming to be "mentally, physically, emotionally, and spiritually exhausted," popular YouTuber Lilly Singh has told her millions of fans she's taking a break from making videos in order to recuperate.
Smart Home

Amazon has a huge team dedicated to enhancing Alexa and Echo

An Amazon executive on Tuesday, November 13 revealed the huge size of the team that's tasked with developing the Echo, the company's smart speaker, and Alexa, the digital assistant that powers it.