Net neutrality is back
Time to re-open that conversation. Plus, our thoughts on the antitrust legislation making its way through the Senate, Web3, and so much more.
This week is a solemn one, as we mourn the loss of life and liberty brought on by the Russian invasion of Ukraine. The courage of those Ukrainians risking everything to defend their democracy — and the ordinary but brave Russians taking to the streets in protest — should inspire all who love freedom. These are the people who most need an Internet free of government meddling, especially secure communications tools that ensure their privacy and anonymity. We've fought for years against efforts to compromise encryption and device security, and we won’t stop now.
Competition. In an op-ed for National Review about the FTC and the American Innovation and Choice Online Act, Andy argues that Congress should not order the FTC to police self-preferencing when the agency barely has the resources to fulfill its more salient responsibilities — namely, protecting consumers. Andy promoted the article in an interview with the Moving Forward With Young Voices radio program (he starts at the 11:05 mark). His piece was also publicized by Dominic Pino in National Review Institute’s Capital Matters publication.
Andy also live-tweeted a panel from the Global Antitrust Institute’s (GAI) 25th Annual Antitrust Symposium on Potential Competition and Nascent Competitors, the topic of one of our forthcoming papers. During the symposium, multiple panelists expressed their view that the FTC already possesses the requisite legal authority to challenge acquisitions of nascent or potential competitors, echoing our position that new laws or regulations targeted at nascent competition are redundant and unnecessary.
This week, in a blog post on the content-moderation problems that the American Innovation and Choice Online Act and the Open App Markets Act would create, Techdirt discussed two TechFreedom letters — one of them a coalition letter — that we sent to the Senate Judiciary Committee last month. Techdirt’s Mike Masnick gave us a hat tip for taking the lead in “call[ing] out th[e] problematic language in [the] two antitrust bills.” Thank you, Mike!
Last week’s webinar with Bilal, Daphne Keller, Anupam Chander, Jane Bambauer, and David Korzenik, titled “The Unintended (?) Consequences of the Big Tech Antitrust Bills,” was uploaded to YouTube by the UCLA Institute for Technology, Law & Policy. Click here to check out the full video.
Net Neutrality. It’s been a while since the words “net neutrality” have made many headlines. That’s likely to change soon. One of these days, the FCC will regain a full slate of commissioners. This will likely occur when Gigi Sohn is finally confirmed — though that’s not guaranteed. Check out our commentary on the drama. Regardless, once FCC Democrats regain a 3-2 majority, they will likely look to roll back the Commission’s 2018 repeal of its (short-lived) 2015 net neutrality order.
In the meantime, the net neutrality battle has (quite improperly) moved to the states. Last April, we filed an amicus brief in the Ninth Circuit arguing that the FCC’s 2018 order preempts a California law that tries, in effect, to re-impose the FCC’s 2015 net neutrality order at the state level. Allowing this would be really dumb, we explained, since, even if states enacted identical statutory language, their net neutrality rules would be interpreted by different courts in different ways, leading to an incoherent mish-mash of regulations of the Internet. Unfortunately, the Ninth Circuit panel didn’t listen to us. Last month, it upheld a trial-court order declining to block California’s law.
Undaunted, this week we joined an amicus brief, produced by Washington Legal Foundation, that urges an eleven-judge “en banc” panel of the Ninth Circuit to review, and overturn, the three-judge panel’s decision. Our press release is here, and you can share it on Twitter. Coverage of the brief in Law360 can be found here (paywall).
Broadband. Stay tuned: next week we’ll have a Tech Policy Podcast on broadband. We’ll also be filing a brief of our own, in the Second Circuit, urging that court to uphold an order blocking a state law that’s even more aggressive than California’s. Indeed, by trying to impose price caps on broadband service, the challenged law, enacted by New York, goes further than the FCC’s 2015 net neutrality order!
Web3. On the latest Tech Policy Podcast, Corbin discusses all things Web3 with Hillary Brill, a senior fellow at Georgetown Law’s Institute for Technology Law and Policy, and Gabrielle Hibbert, co-founder of Bloom, a Web3 development education program for women and genderqueer individuals. Is Web3 in fact the “next big thing” for the Internet? What technology makes it possible? It’s more than just crypto and NFTs, right? Tune in and find out.
Political Thought. Corbin’s recent essay in American Purpose, on the rise of Jacobinism on the Right, was the subject, along with two other pieces, of an article in RealClearPolitics by Peter Berkowitz, a senior fellow at the Hoover Institution. In the article, “‘Natcons,’ Progressive Elites, and Illiberal Overreach,” Berkowitz comments that Corbin and the other authors are “serious students of American politics” — before critiquing their work as insufficiently hard on the Left. Corbin apparently “comes closest” to striking what Berkowitz thinks is the proper balance. We’ll take it!