The FCC’s Net Neutrality Hypocrisy: Wiretaps, Yes. Citizens’ Rights, Meh.
There’s been 3.7 million comments filed to the FCC over the issue of net neutrality — making it the most commented-on proposal in the commission’s history.
Nearly all the comments were rebelling against the FCC’s weak oversight proposal that would allow last-mile ISPs and mobile carriers to set up fast and slow lanes on the internet, among other chicanery.
The vast majority of commenters, like many public interest groups, are calling for the FCC to treat ISPs such as Comcast, Verizon and AT&T as “telecommunication services” or common carriers.
I’d also bet that nearly every one of those comments were filed online using an ISP that conforms to detailed wiretap rules created by the FCC at the behest of the FBI.
The FCC is able to force ISPs to build in instant wiretaps that conform to the FBI’s API specifications for one simple reason: it considers ISPs like Comcast, Verizon and AT&T to be “telecommunications services” or common carriers —but ONLY for the purpose of wiretaps.
See when it comes to consumer rights, the FCC has chosen to give itself almost no power; but when it comes to building plug-n-play wiretapping into the net, the FCC has asserted its full power.
The dichotomy dates to the Bush administration.
A common carrier is something that operates like an airline or a phone company. It’s considered vital to the nation; it often gets federal/state/local benefits; and therefore, it’s subject to some basic fairness rules. For instance, airlines have to sell tickets to everyone. Phone companies have to let you call whomever you like.
The sentiment of the millions petitioning the FCC is pretty clear: 1) these ISPs have local or last-mile monopoly power over the most important communications technology ever invented, and 2) they are set on abusing it to make more money, despite being paid by everyday Americans to simply let them use the internet as they wish.
At heart, the battle is about undoing the corporatist gobbedly-gook unleashed when President George Bush appointed Michael Powell to run the FCC.
In the early oughts, the FCC decided to free broadband ISPs from having to rent their monopoly infrastructure out to competitors and freed them generally from any meaningful oversight, e.g. the rules that governed the phone system..
Simultaneously the FCC, at the behest of the FBI, decided that broadband companies and universities were such essential communication infrastructure that they had to be as easily wiretappable as the phone networks. So the FCC extended the phone company rules, called CALEA, to broadband companies.
Those rules force broadband networks to install equipment that would allow the FBI, state and local police to wiretap a particular user in real time.
Challenged by a group representing universities, the FCC fought that determination to the appeals court level.
The federal judge heading the panel hearing the case laughed at the FCC for designating ISPs “information services” to free them from pesky consumer rights obligations, and then simultaneously calling them “telecommunication services” in order to make them obey complicated wiretapping standards.
By comparison, Facebook , Craigslist, Gmail, Words with Friends and Tinder are actually “information services” that don’t have to build in this wiretapping capability — they simply have to respond to warrants with the tech and logs they have.
Appeals court judge Harry Edwards called the FCC’s double standard “such gobbedlygook, it’s really funny…. It’s utter nonsense.”
And yet the FCC won, 2–1.
So when AT&T decides that it’s going to offer cheap fiber plans in Austin, Texas by opting users into having their online life monitored and sold to ad companies, the FCC has no power to intervene.
But it can and does force AT&T to make that network easy for law enforcement to wiretap.
The same goes for Comcast. Public interest groups figured out in 2008 that Comcast was using Chinese Firewall techniques to squelch peer-to-peer services. The FCC moved to make Comcast stop blocking bittorrent based on some loose consumer protection “freedoms” the Bush FCC reluctantly agreed to adopt when it freed the ISPs from any regulation..
Comcast sued the FCC and in 2010, won in court, successfully arguing the FCC was powerless since it had abdicated its power.
The FCC’s been searching through the rubble of that decision for 4 years trying to find some tiny crystal that will give it magic power to constrain AT&T and Comcast and Verizon.
Which is funny, since it’s got a gun in a holster that it’s too scared to pull out.
It’s a long established tenet that there are civic responsibilities that come when providing essential communication infrastructure — e.g. not mucking with the traffic that comes across their lines, not rent-seeking and not playing favorites.
But the FCC has signaled it has no taste to fight to get back real power to enforce that behavior. The commission thinks that’s too hard politically.
I sat in a room with FCC Chairman Tom Wheeler and about 15 Silicon Valley lawyers and founders this summer as part of Wheeler’s tour to impress on the Valley the realities of D.C.
It was pretty clear the Chairman had no desire to fight for Title II.
But that was before John Oliver’s epic rant about Cable Company Fuckery and before Congressional telephone lines were lit up by angry netizens.
Wheeler said he thought Title II was politically too tough — suggesting that Republicans would then try to defund the FCC, perhaps by sticking an anti-net neutrality rider to a must-pass financing bill, making it impossible for Obama to veto.
Wheeler even argued he’d have to fight a Title II reclassification to the Supreme Court.
Which is quite frankly bullshit of the most Beltway order.
The Supreme Court would have to take the case in order to overrule itself.
That’s because back when the Bush FCC decided to un-regulate broadband, that case, known as Brand X, went to the Supreme Court.
The Court ruled, that even if the FCC was making a decision that wasn’t the best one (e.g. treating broadband as an “information service” and neutering its own authority), the FCC had wide authority to make it up as it went along.
Justice Antonin Scalia thought this was stupid. In an epic dissent, Scalia said it was perfectly clear that broadband service was a telecom service and that someday the FCC would just reverse itself.
[I]t might be more accurate to say the Commission has attempted to establish a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed. The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the authority given it by Congress. […]
After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is “offering” telecommunications.
As Scalia points out, the FCC’s position that broadband isn’t “telecommunications” makes no sense at all intellectually.
The subsequent wiretapping rule makes it even clearer.
(Please note that just because it’s clear that broadband is a “telecommunications service” does not mean I think the CALEA rules are smart policy. They are not, if only for the simple reason that any backdoor is, by definition, a security threat.)
For their part, the ISPs are fighting as hard as they can to prevent any new citizen protection rules from going into place and getting in the way of their plans for what John Oliver called “Cable Company Fuckery”.
What does that look like, beyond just trying to extend as much profit as possible and protect ?
Well, just last month, Ars Technica disclosed that Comcast was inserting ads into webpages it doesn’t own, using the WiFi network it cobble together from its own customers’ internet routers.
Surf on “CableWifi” and Comcast will use a hacker technique known as a Man in the Middle (MitM) attack to insert ads into whatever page you are on.
It’s a security nightmare, and it’s a plain violation of net neutrality.
Comcast achieves this miraculous feat (which it calls a “security” mechanism) by routing a copy of every hotspot users’ internet traffic to a router run by Front Porch, which helps Chinese ISPs like Great Wall Broadband insert ads into the Chinese portion of the net.
That’s just one small example of what ISPs would like to do with telecommunication networks that aren’t regulated.
Perhaps the 3.7 million comments will embolden the FCC to take on the telecoms, their army of lobbyists and the legislators they’ve bought with generous campaign contributions.
In a blog post in late September, FCC talked much more about Title II than they ever have in this proceeding — perhaps an indication that the FCC will come out with tough rules.
Over the last few months, it’s become clear Wheeler’s got a — I don’t what you should call it— a Minecraft, a TweetStorm, a raid or an attachment of the net generation that will help him fight for real power to keep the internet open.
Now, it’s just a question of whether he wants to lead that net rabble or settle for a compromise that will let mega-companies like AT&T, Verizon and Comcast abuse their (wiretappable) monopolies in order to extract monopoly rents from the greatest communication technology the world’s ever seen.
It’s that simple.
