
Supreme Court rejects industry challenge of 2015 net neutrality rules - magoghm
https://arstechnica.com/tech-policy/2018/11/supreme-court-wont-rule-on-legality-of-obama-era-net-neutrality-rules/
======
AdmiralAsshat
More details here: [https://arstechnica.com/tech-policy/2018/11/supreme-court-
wo...](https://arstechnica.com/tech-policy/2018/11/supreme-court-wont-rule-on-
legality-of-obama-era-net-neutrality-rules/)

I'd like to point out that this is may only be _temporary_ victory. Roberts
and Kavanaugh recused themselves, and they both would have voted _in favor_ of
the challenge if they had voted. If at any point in the future the issue is
retried and the two justices don't recuse themselves, a majority of the SCOTUS
would side with the Telecoms.

~~~
jagger27
Any word on why those judges recused themselves?

~~~
singingboyo
From what I've seen:

Kavanaugh dissented on the lower court ruling (as it happened while he was
still part of said lower court). So, he recused himself from re-hearing the
case.

Roberts has major holdings in Time Warner Cable, now merged with AT&T. AT&T
was part of the case, so there's a conflict of interest there.

~~~
thaumasiotes
> Kavanaugh dissented on the lower court ruling (as it happened while he was
> still part of said lower court). So, he recused himself from re-hearing the
> case.

This is an interesting reason to recuse. You're supposed to recuse in cases
where you cannot be impartial (or, similarly, where you cannot appear to be
impartial, regardless of your inner thoughts).

Recusing because the defendant is your brother makes sense. But Kavanaugh was
presumably offering a standard, "impartial" judicial opinion when he dissented
on the lower court. It's definitely true that he's likely to come into the
case at the Supreme Court level with a preformed opinion of the merits.
Superficially, that's an obvious reason to recuse. But why? That preformed
opinion was, by hypothesis, formed by considering the merits of the case as an
impartial judge, which is the only thing he's supposed to do when hearing it
in the Supreme Court too.

~~~
sbov
Because of
[https://www.law.cornell.edu/uscode/text/28/47](https://www.law.cornell.edu/uscode/text/28/47)

It makes sense. When you appeal you want a different person's opinion, not the
same person's multiple times.

~~~
thaumasiotes
It makes less sense on closer examination than it does at first glance. I want
a different person's opinion when I lose in court, regardless of whether I do
appeal or whether I can appeal. But wanting it doesn't mean there's a reason I
should get it. I can appeal to a higher court because the higher court has
authority over the lower one; the basis for an appeal is that the lower court
made a mistake, not that I personally feel that I'd be better off with a
judgment going the other direction.

~~~
sbov
Courts make mistakes (in the appealer's view) because people misinterpret
evidence/the law. If you get the same people in a higher court the same
mistakes will happen again.

~~~
thaumasiotes
But mistakes in the appealer's view don't matter. You win an appeal if the
lower court made a mistake in the view of the higher court.

------
rayvy
In the strangest of ways, I hope that ISPs do get the ability to "exercise
editorial control" \- because I think that will be the proverbial straw that
breaks the camels back (i.e., sparks the kind of innovation needed to break
the ISP monopoly).

~~~
nisa
> i.e., sparks the kind of innovation needed to break the ISP monopoly

How so? Internet is infrastructure, LTE is infrastructure (from the same ISPs)
- mesh networks don't scale due to inefficient wifi and too little spectrum.
You can't break physics.

The innovation you have is paying for a VPN and pay up for your non-ISP-
netflix traffic.

What do you think would be possible? If it's over the air it will be regulated
and licenced (i.e. non public spectrum) and if it's not over the air you have
huge costs nobody is willing to pay to build a network (even Google ditched
Fiber due to costs?)

~~~
ypeterholmes
They wouldn't be using the term innovation if the solution was obvious...
Within the options you laid out, perhaps advances in mesh networking working
in combination with licensing non-public spectrum would cut it. Certainly
Amazon, Google, Facebook and Apple have the resources to make something else
work if the current ISP's get massively out of line.

~~~
alphabettsy
They’ll do what we’ve seen companies do time and time again, use their deep
pockets to position themselves to take best advantage.

------
alphabettsy
People here have been worried about providers like GoDaddy when this excerpt
arguably has the potential to be much worse; “Kavanaugh dissented from the
ruling upholding net neutrality rules in 2017, arguing that the rules violate
the First Amendment rights of Internet service providers by preventing them
from "exercising editorial control" over Internet content.“

------
gjsman-1000
I might not _like_ this result, but I do understand why Net Neutrality can be
regulated or deregulated. Even if the Supreme Court took the case, I'm more
curious on what the industry would even defend net neutrality _by_.

I mean: Drugs, Birth Control, Healthcare... all able to be regulated. I'm not
sure how they would argue against Internet regulation.

~~~
ohithereyou
Changing gears slightly, what would you like regulated about the Internet?

~~~
erikpukinskis
My understanding is the issue at hand is whether the government can block ISPs
from metering and throttling different kinds of traffic differently.

Net neutrality = yes, legislators can say all ISPs must be neutral to traffic
content

Non-neutrality = no, legislators may not regulate the way ISPs differentiate
traffic because traffic differentiation is speech

------
jwineinger
What's with the "Beer enthusiast" comment?

~~~
ergothus
During the confirmation hearings Kavanaugh repeatedly explained his high-
school (and presumably college) activities by defensively and repeatedly
emphasizing that "I like beer".

Regardless of any good/bad quality of it, he was clearly defensive and
memorable, and many memes were born. I'd suspect that ~arstechnica~ [Edit:
Guardian, link was changed since I first read it] is showing how "hip" and
"with it" they are by bonding with their audience on this point - so far as I
know, some of those both those for and against Kavanaugh's confirmation made
fun of that exchange, so while I'd not be surprised to find an anti-kavanaugh
tilt in the author, I suspect the inclusion was for less political and more
marketing reasons.

~~~
AdmiralAsshat
The term "beer enthusiast" was actually used in the Guardian article that was
originally submitted--it appears nowhere in the Ars Technical article.

------
aerovistae
A real doozy of an excerpt from the article:

> Kavanaugh dissented from the ruling upholding net neutrality rules in 2017,
> arguing that the rules violate the First Amendment rights of Internet
> service providers by preventing them from "exercising editorial control"
> over Internet content.

Jesus fucking christ.

~~~
erikpukinskis
I appreciate the quote but I don’t appreciate your comment. It seems to serve
no purpose but to be inflammatory. To signal to “your people” that you’re with
them, and signal to everyone else that you think they’re an idiot. I have half
a mind to flag it.

I like neutral ISPs, but I think Kavanaugh is probably correct, from a
strictly constitutional sense ISPs should have a right to modify traffic in
any way they like.

If you disagree, at least give me a hint as to your thinking.

~~~
furgooswft13
Yea. I may not like the idea of it but from a strictly constitutional view it
seems correct. ISP's are private entities after all. We already have major
social media platforms, hosting providers, domain registrars, payment
processors, credit card companies, even DDoS protection companies all
"exercising editorial control" of content, so why not ISP's?

The argument of "ISP's choice is very limited in many areas, so it's
different" seems rather weak to me. You can just use a cell carrier, or
satellite, or even dial-up. If that sounds like "you can just start your own
social media platform, your own website, your own payment processor, your own
registrar, or just be accessible through an IP address, or tor etc." it
should. All those options suck. Yet the people who are most militant about Net
Neutrality are usually totally okay with every other private entity doing
whatever they want (as long as it ends up aligning with their ideology).

I'm not here to suggest any solution to all this, just to say I don't think
there's anything untoward about a judge ruling in line with the first
amendment of the Constitution. Ideally this whole mess will lead us towards
more competition and decentralization on the Internet, but given the way it
has developed in the past 20 years, I'm not very hopeful.

~~~
romwell
>so why not ISP's?

Because it has to effing stop _somewhere_ , that's why.

Sorry, but saying that giving government-granted telco monopolies[1] a right
to censor content is "in line with the first amendment" is the most bizzarre
thing I've seen today.

[1]Neither spectrum nor the right to lay down cables are a free market.

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RcouF1uZ4gsC
The Supreme Court is good at avoiding theoretical cases. Basically, the
original net neutrality regulations were already rescinded by the Trump
administration. Because of this, the Supreme Court has no reason to intervene
as it is a moot point.

~~~
craftyguy
That's actually not at all what happened here. The Supreme Court decided not
to hear challenges to the FCC policies under the Obama administration. In
other words, Trump and Pai did not get their way this time.

