80 votes

US appeals court rejects net neutrality: The internet cannot be treated as a utility

35 comments

  1. [2]
    post_below
    Link
    From the article: This is bad in obvious ways: From ISPs forcing some services to pay more, the costs being passed on to consumers, to large companies being able to pay for prioritization of their...

    From the article:

    In their decision, the judges noted that different administrations have gone back and forth on the issue.

    But they said the court no longer had to give "deference" to the FCC's reading of the law, pointing to a recent Supreme Court decision that limits the authority of federal agencies to interpret laws, a decision that critics expect will be used to weaken regulation in the years ahead.

    This is bad in obvious ways: From ISPs forcing some services to pay more, the costs being passed on to consumers, to large companies being able to pay for prioritization of their services over others.

    And in less obvious ways: Backroom deals between giant companies that entrench their positions in the marketplace. Even worse activity specific bandwidth throttling and related deep packet inspection by ISPs.

    And in all sorts of unexpected creative ways as they explore the profit potential. No doubt they've been holding off on their more egregious plans for both this ruling and the upcoming friendly administration.

    For anyone not familiar, the principle of net neutrality boils down to: all internet traffic must be treated the same. Adjacent to that, internet service is a required part of modern life and should therefore be treated more like a utility with equal access to all.

    This ruling likely means that we won't see the return of net neutrality without new federal laws, which we almost definitely won't see in the next 4+ years. ISPs and related companies will be working hard during that time to make sure such laws are hard to introduce and impossible to pass.

    65 votes
    1. raze2012
      Link Parent
      Yup, just the start of many aftershocks of Chevron; not even years, months. It's amazing how fast the law can blitz through when it comes to benefitting the powerful. All I can say is that I'm...

      Yup, just the start of many aftershocks of Chevron;

      they said the court no longer had to give "deference" to the FCC's reading of the law...will be used to weaken regulation in the years ahead.

      not even years, months. It's amazing how fast the law can blitz through when it comes to benefitting the powerful.

      All I can say is that I'm glad California has gotten ahead of this and already has Net Neutrality in its laws.

      16 votes
  2. [11]
    krellor
    Link
    The real legal determination here is that the FCC didn't have the proper authority from Congress to promulgate rules classifying the Internet as a utility under existing laws. The court isn't...

    The real legal determination here is that the FCC didn't have the proper authority from Congress to promulgate rules classifying the Internet as a utility under existing laws. The court isn't ruling that the Internet can't be classified as a utility, just that the FCC lacked that authority. Congress can grant such authority explicitly if it wishes.

    A silver lining to the otherwise gloomy prospects from overturning Chevron is that it might put a stop to some of the legal whiplash created when administrations turn over. In general, it is always better to have clear legal authorities for federal agencies. I just wish Congress was functional enough to create that clarity.

    44 votes
    1. [2]
      Jakobeha
      (edited )
      Link Parent
      A more optimistic silver lining is that courts have ruled in the past that states can enforce their own version of Net Neutrality, and the justifications are very similar (the FCC lacks authority...

      A more optimistic silver lining is that courts have ruled in the past that states can enforce their own version of Net Neutrality, and the justifications are very similar (the FCC lacks authority over state governments, and ISPs are information services).

      California has SB-822 that seemingly enforces Net Neutrality within its borders, and many other states have weaker laws.

      AFAIK the federal government can still pass laws banning state-level net neutrality, but likewise they could have passed a law banning net neutrality even if this decision was upheld. The courts at least have precedent that without a federal law, states can do what they want.

      42 votes
      1. krellor
        Link Parent
        Also a great point. The states have all rights not enumerated as granted to the federal, so state legislature can create their own version of the law.

        Also a great point. The states have all rights not enumerated as granted to the federal, so state legislature can create their own version of the law.

        14 votes
    2. [4]
      vord
      Link Parent
      Like I said in previous discussion, utter madness. According to the law: Phone services are a utility. The Internet, the backbone that now underpines almost all communication services, including...

      Like I said in previous discussion, utter madness.

      According to the law:
      Phone services are a utility.
      The Internet, the backbone that now underpines almost all communication services, including most phone service, is not a utility.

      Thanks Congress from 30 years ago for getting into this ugly mess because your corporate overlords wanted to shed all the baggage associated with providing a utility, like universal access.

      I might be misremembering, but this whole problem kicked off because cable companies insisted that they weren't utilities the way phone companies are. Because prior to mass deployment of cable internet, the Internet was mostly just a service sitting on top of a telecom network, thus access was insured by simply being a layer on top of the primary utility.

      23 votes
      1. krellor
        Link Parent
        I don't disagree that the Internet should be regulated as a utility. For that to happen, it appears that either states will need to piecemeal it in that direction, or Congress will need to act.

        I don't disagree that the Internet should be regulated as a utility. For that to happen, it appears that either states will need to piecemeal it in that direction, or Congress will need to act.

        13 votes
      2. [2]
        raze2012
        Link Parent
        pretty crazy take given that televised news was one of the quickets ways to provide news to the populace. And utilized for presidential addresses for decades by the 90's. But I guess that "basic...

        I might be misremembering, but this whole problem kicked off because cable companies insisted that they weren't utilities the way phone companies are.

        pretty crazy take given that televised news was one of the quickets ways to provide news to the populace. And utilized for presidential addresses for decades by the 90's.

        But I guess that "basic package" deal was a loophole to get around that. One that mostle provided news channels .

        4 votes
    3. [2]
      HeroesJourneyMadness
      Link Parent
      I can’t tell if that take is another one of those “Well, Aktshully… “ invented silver linings the right likes to toss out to try and obfuscate and excuse their actions or if there’s actual merit...

      I can’t tell if that take is another one of those “Well, Aktshully… “ invented silver linings the right likes to toss out to try and obfuscate and excuse their actions or if there’s actual merit to it and there’s a systemic improvement because of it. I suspect it’s just another ouroboros.

      12 votes
      1. krellor
        (edited )
        Link Parent
        Well, I think my description of the overturning of Chevron as gloomy should convey where I sit on the ruling. To the merits of less legal whiplash and the challenge of ambiguous authorities, yes...

        Well, I think my description of the overturning of Chevron as gloomy should convey where I sit on the ruling.

        To the merits of less legal whiplash and the challenge of ambiguous authorities, yes those are real things. There are many activities the government performs that are done on the determination of that agencies general counsel. General counsel may disagree on the decision space granted by an authority, giving conflicting determinations across the government. Much of the cost and time of legal reviews of government actions could be avoided with laws that are more clear. Every agreement, MOA, grant, and cooperative requires citing an authority because of the way federal authorities are enumerated.

        A good example of this in action is the harm done to veterans by the VA when they reinterpreted their authorities when using VA backed home loans when foreclosures were spiking. They reinterpreted their decision space to preclude the graceful on ramp from forbearance that veterans had been promised when they sought a temporary pause in their loans.

        It created a situation that congress certainly didn't want and voiced outrage over, but could have been avoided by better laws enumerating authorities shaped by clear intent.

        12 votes
    4. [2]
      raze2012
      Link Parent
      you're making the bold assumption that this ruling will somehow get congress out of this deadlock its had for decades at this point. Administrations took this to themselves precisely because...

      A silver lining to the otherwise gloomy prospects from overturning Chevron is that it might put a stop to some of the legal whiplash created when administrations turn over

      you're making the bold assumption that this ruling will somehow get congress out of this deadlock its had for decades at this point. Administrations took this to themselves precisely because Congress couldn't or didn't get to it. Especially in regards to something moving as fast as the tech industry.

      "State's rights" seems to be the theme of the next administration, but I don't think that's for the overall betterment of society. There's a very good reason the U.S. historically held federal control of aspects like telecommunications, things that cease to be effective if there's 3 private middlemen and a mess of landlines to manage as opposed to one unified resource divied out by the government. The Internet is much closer to that ideaology than being some sort of good to produce.

      6 votes
      1. krellor
        Link Parent
        The legal whiplash between administrations diminishing doesn't require Congress to act. If the executive has narrower decision space, then the magnitude of policy changes is more narrowly bounded....

        The legal whiplash between administrations diminishing doesn't require Congress to act. If the executive has narrower decision space, then the magnitude of policy changes is more narrowly bounded.

        That said, you also completely butchered what I said. Let's widen that quote slightly, emphasis mine.

        A silver lining to the otherwise gloomy prospects from overturning Chevron is that it might put a stop to some of the legal whiplash created when administrations turn over. In general, it is always better to have clear legal authorities for federal agencies. I just wish Congress was functional enough to create that clarity.

        So I said it might reduce some of the whiplash, emphasis on being a probabilistic statement. And I concluded by despairing that Congress would rise to the occasion of creating updated laws that would bring statutory clarity.

        So no, no bold assumptions here. Recognizing a possible silver lining doesn't make someone a fan of storms.

        7 votes
  3. [6]
    HeroesJourneyMadness
    Link
    Unfortunately with recent court rulings I can’t say I’m terribly surprised. This is an area I have a bit of knowledge in, having traveled and worked in the open internet, digital divide, Creative...

    Unfortunately with recent court rulings I can’t say I’m terribly surprised. This is an area I have a bit of knowledge in, having traveled and worked in the open internet, digital divide, Creative Commons and FOSS/OSS circles at one point. (And just being “of a certain age” in tech”.)

    IMO access to information (the internet) is THE existential threat to most, if not all, entrenched power structures. In the long term information freedom cannot be allowed to continue uncontrolled and what we are witnessing with most of our current US political turmoil, social and traditional media publishing turmoil, and kind of pretty much all the issues on this side of the hemisphere (Americas) is related to this in one way or another.

    I’ve watched a book about this by a friend get astroturfed and buried by Amazon, nonprofits get funding pulled, indie ISPs get sabotaged by backbone providers, activists get murdered, secret spy empires built quietly in the wilds of Utah, and municipal ISPs get outlawed… almost every kind of corrupt power play you can imagine in this space over the last 25 years. And those are only the ones I have had direct experience with or that can be looked into with a quick google search.

    Obviously, my personal Overton window on this topic is way over on the left. My question is if it’s just me and my experience in this space, or is the naked corruption and power grabbing this obvious to everyone?

    It’s really hard to continue to believe in certain fundamental freedoms and watch them be stripped away within an onslaught of frightening chaos year after year.

    18 votes
    1. post_below
      Link Parent
      I think you're above the curve. But I think a lot of us have witnessed decades of corruption (private and public sector) related to ISPs and now cell providers. They're well entrenched with...

      this obvious to everyone?

      I think you're above the curve. But I think a lot of us have witnessed decades of corruption (private and public sector) related to ISPs and now cell providers. They're well entrenched with government.

      Just using one thing you mentioned as an example, the frighteningly successful national city level campaign to stop municipal broadband... this is an industry with deep connections that can out organize and spend almost anyone.

      One problem so far is that it's not easy to communicate the risks associated with losing net neutrality to the average person. In part because the some of the worst outcomes are more medium term. So no one has managed to get it in front of the public at large in a memorable way. When there's Trump and food prices and wars and genuine threats to western democracy, the meme value of your Netflix streaming speeds via cell signal being selectively slowed down is weak.

      13 votes
    2. [4]
      hobbes64
      Link Parent
      I think the most obvious intentional destruction of a (de facto) public common space is the purchase of twitter by musk. Yes, twitter was a private company but it was being used as a public common...

      I think the most obvious intentional destruction of a (de facto) public common space is the purchase of twitter by musk. Yes, twitter was a private company but it was being used as a public common to organize protest and other communications that powerful people don't like. Musk bought it and ruined it as soon as he could, and also used it to influence/buy the presidential election. When he bought it people made fun of him for losing money, but he was clearly never in it to make profit of the service himself, and was funded by foreign and domestic oligarchs.

      Facebook also had a destructive arc that happened a little more slowly. It seemed innocuous for a while, then useful, then it became clear it was damaging global society for money and power.

      12 votes
      1. [3]
        updawg
        Link Parent
        Not sure if this isn't what you mean, but Twitter was a public company.

        Yes, twitter was a private company

        Not sure if this isn't what you mean, but Twitter was a public company.

        3 votes
        1. PuddleOfKittens
          Link Parent
          Publicly traded company. It was privately owned. "Public company" can mean different things depending on the context.

          Publicly traded company. It was privately owned. "Public company" can mean different things depending on the context.

          5 votes
        2. hobbes64
          Link Parent
          Yeah I meant more like “it isn’t a town square” or something

          Yeah I meant more like “it isn’t a town square” or something

          3 votes
  4. [10]
    cableclasper
    Link
    What a total cop out! How is the shared commons of our information highway not a public utility? What would have to happen for it to be one?

    What a total cop out!
    How is the shared commons of our information highway not a public utility?

    What would have to happen for it to be one?

    10 votes
    1. stu2b50
      Link Parent
      A bill passed by Congress and signed by the president

      A bill passed by Congress and signed by the president

      19 votes
    2. HeroesJourneyMadness
      Link Parent
      A fundamental shift in the American psyche away from that of an Oklahoma Sooner out to grab as much as they can to a populace that gives a shit about their fellow citizen. That’s what. Sorry. I’m...

      A fundamental shift in the American psyche away from that of an Oklahoma Sooner out to grab as much as they can to a populace that gives a shit about their fellow citizen. That’s what.

      Sorry. I’m in a mood this morning. Acknowledging that’s not a helpful statement. Just saying that the cult of what’s considered “success” in this country is anathema to building a person with the moral fiber to pursue any kind of public good.

      15 votes
    3. [6]
      AuthenticAccount
      Link Parent
      It's perhaps a little reductive to simply say "because capitalism," but that's what always comes to mind. Since that's the prevailing system of the world and what I exist within in the US, I want...

      It's perhaps a little reductive to simply say "because capitalism," but that's what always comes to mind. Since that's the prevailing system of the world and what I exist within in the US, I want to believe we can fix it, but all evidence suggests otherwise. We have a political ruling class that does not serve the best interests of society. Continuous efforts are underway to maintain or extend the privatization of anything and everything possible. That includes not recognizing the internet as a utility so wealth can be extracted from it.

      While both major parties serve capital interests, their approaches differ significantly. Democrats occasionally attempt reforms like net neutrality and throw some breadcrumbs to the public, but our system has been engineered to make even these modest efforts ineffective. Meanwhile, Republicans have become dramatically more overt and accelerated in their opposition to public interests. I'm not optimistic about how things will unfold in the years ahead.

      The reality is stark: our government exists largely to serve capital. I do not glorify or take lightly the idea of a revolt or how bad conditions must get to precipitate one, but I would not be surprised if that's what it will take to nationalize utilities and services for public good - from housing and healthcare to education, internet access, and basic necessities - and recreate the government to actually be of, by, and for the people. I do not believe we will be able to vote ourselves out of this mess, but I shall keep trying as long as it is an option.

      12 votes
      1. [5]
        HeroesJourneyMadness
        (edited )
        Link Parent
        Edit: okay, sorry, I agree with much of what you said, but I maintain what’s written below. I just leapt to a conclusion without reading the whole thing. The conclusion being that you were headed...

        Edit: okay, sorry, I agree with much of what you said, but I maintain what’s written below. I just leapt to a conclusion without reading the whole thing. The conclusion being that you were headed toward an argument of “there’s nothing can we do!” But you stopped short of that.

        No. Capitalism is one way of powering a system using money. It’s the unmitigated disrespect for anything NOT money that’s the issue. Capitalism is just fine. It works. It can even work great within greater systems. The bottle deposit that started in the 1970’s has a capitalistic component and literally kickstarted the recycling industry.

        The issue is greed and corruption. It’s a refusal to acknowledge the immorality of sabotaging things for money. It’s injuring your mental health trying to rationalize what has to be done for a paycheck. It’s not speaking up.

        Capitalism is the scapegoat for a diseased culture of amoral greed.

        2 votes
        1. [4]
          Rocket_Man
          Link Parent
          I think this misses some of the higher order mechanisms of capitalism. It's all about growth, optimization and exploitation. It encourages regulatory capture to gain an advantage and is also the...

          I think this misses some of the higher order mechanisms of capitalism. It's all about growth, optimization and exploitation. It encourages regulatory capture to gain an advantage and is also the thing that ended that recycling program as plastic was able to be exploited to shift waste disposal onto the customer.

          Capitalism is the system that encourages and promotes the problematic greed and corruption. It influences the culture not the other way around. Some countries have been able to regulate it better than the US. But I believe these problems are inevitable in a capitalist setup.

          14 votes
          1. [3]
            HeroesJourneyMadness
            Link Parent
            …and I guard against that line of reasoning for a couple of reasons: Because culture is a choice (to what extent is debatable). I’m sure there are are lots of long thinky pieces better versed in...

            …and I guard against that line of reasoning for a couple of reasons:

            1. Because culture is a choice (to what extent is debatable). I’m sure there are are lots of long thinky pieces better versed in this with citations and whatnot, but IMO culture seems like in some part influenced by morals and values. What is okay and not okay CAN be more influenced by peers and individual choice than by “noise”. We can and should and do build your own belief systems. Culture is an extension of that. We are only victims of circumstance to some vague limited extent.

            I’m not denying what a friend described as “the water we swim in” but rather saying we think and read and can learn what water is. (I think that might be an Infinite Jest or David Foster Wallace reference? I dunno, never read him, but said friend was a fan.)

            1. And more importantly, fascists use the “cultural ship has sailed” argument to keep people passive. So long as the bulk of the culture stays quiet, their power grab can continue. History has shown this.

            …and while it might seem hyperbolic to allude to Nazi Germany in talking about current events in this country, IMO the parallels and historical context is so definitively there that it’s mind boggling to me that this isn’t a daily topic of discussion and analysis on mainstream media. There is a (I think hugely) popular podcast called “It Could Happen Here” with (I think) DAILY news and analysis of how it’s happening currently in real time. I can’t really listen to it very often or my mental health takes a nosedive.

            4 votes
            1. [2]
              post_below
              Link Parent
              I agree with what you're saying, though the degree to which we're in danger of full on facism is debatable. I think what the GP poster was trying to say though is that the underlying issue in this...

              I agree with what you're saying, though the degree to which we're in danger of full on facism is debatable.

              I think what the GP poster was trying to say though is that the underlying issue in this problem, in fact most of our problems, is unchecked capitalism. That being the case, it should be a part of every related conversation until everyone gets it.

              Then maybe someday we can solve it.

              I don't think the US version of capitalism is the inevitable destination of every free market based economy though. I think capitalism can be kept in check (kept healthy) indefinitely by a strong democratic socialist state as we see in some countries.

              I could be wrong though, maybe capital always wins in the end. Capital being shorthand for the uber wealthy, giant companies, systems and regulatory capture that are a natural part of late stage capitalism.

              Going back to fascism... the political parties leaning the most facist in many countries are enabled by capital because they're the ones most willing to take payola. The money will go to whoever will deliver, or promise to, and a lot of politicians on the right are extra eager to take the money and favors.

              So there again the underlying problem is capital.

              4 votes
              1. boxer_dogs_dance
                Link Parent
                This is one of the reasons why antitrust enforcement is so important.

                This is one of the reasons why antitrust enforcement is so important.

                1 vote
    4. post_below
      (edited )
      Link Parent
      Federal legislation. This decision essentially leaves that as the only option. Thus my note above that it's not likely to happen for at least 4 years. Although (looks at California) you never know...

      Federal legislation. This decision essentially leaves that as the only option. Thus my note above that it's not likely to happen for at least 4 years.

      Although (looks at California) you never know what states might do.

      Edit: I see someone else already answered this

      3 votes
  5. [2]
    SteeeveTheSteve
    Link
    We really need to stop electing technologically illiterate people who don't take the internet and new tech seriously. It's just sad that so much tech comes from this country but we fail time and...

    We really need to stop electing technologically illiterate people who don't take the internet and new tech seriously. It's just sad that so much tech comes from this country but we fail time and again to make full use of it.

    10 votes
    1. post_below
      Link Parent
      Haha, I remember seeing most of those clips. Funny and sad... there were good reasons to have those guys before congress, but it was mostly pre Biden admin when everyone in the room knew that...

      Haha, I remember seeing most of those clips. Funny and sad... there were good reasons to have those guys before congress, but it was mostly pre Biden admin when everyone in the room knew that nobody was going to actually do anything about it.

      We have no excuse for these congresspeople, other countries are managing to elect people who can address technology without making memes of themselves. Meanwhile we're just waiting for our 'congress for life' generation to retire.

      3 votes
  6. [4]
    mycketforvirrad
    Link
    Previous discussions can be found here.

    Previous discussions can be found here.

    5 votes
    1. [3]
      post_below
      Link Parent
      Sorry, missed the previous post. The BBC article I linked doesn't really add anything that wasn't covered in the NYT piece.

      Sorry, missed the previous post. The BBC article I linked doesn't really add anything that wasn't covered in the NYT piece.

      3 votes
      1. [2]
        mycketforvirrad
        Link Parent
        No worries. The one benefit being that this BBC article isn't behind a paywall.

        No worries. The one benefit being that this BBC article isn't behind a paywall.

        5 votes
        1. post_below
          Link Parent
          That was why I picked it over NYT :)

          That was why I picked it over NYT :)

          3 votes