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California can enforce net neutrality law, judge rules in loss for ISPs (arstechnica.com)
413 points by buran77 47 days ago | hide | past | favorite | 85 comments



For the non-lawyers: as the article indicates (but doesn’t really explain), this is a ruling on a request for temporary relief (called a “preliminary injunction”). This is not a final judgment. It can (and presumably will) also be subject to appeal. Nothing remotely final about this. The judge has simply said: “CA, you can go ahead and enforce your law for now.”

Now, this does also mean the judge would quite likely ULTIMATELY rule in CA’s favor. But it is not a guarantee. And, as I said, then there’s appellate and Supreme Court review.

For reference, the 4-element test/standard for a preliminary injunction generally accepted in US courts is set out here:

“[G]enerally a plaintiff seeking preliminary injunctive relief must satisfy a four-factor test: (1) that he or she is likely to succeed on the merits of his claims; (2) that he or she is likely to suffer irreparable harm without preliminary relief; (3) the balance of equities between the parties support an injunction; and (4) the injunction is in the public interest.”

https://www.americanbar.org/groups/litigation/committees/wom...


> Now, this does also mean the judge would quite likely ULTIMATELY rule in CA’s favor

In this specific case it does, as the judge specifically seems to have ruled that the ISPs are u likely to succeed on the merits, but in general denial of a preliminary injunction does not. Granting an injunction requires (loosely) both probability of success on the merits and irreparable harm in the interim without the injunction, so you can't automatically read a denial as “likely to lose on the merits”, though you can read one being granted as the opposite more safely (but not entirely because the exact rules vary and it's something's more of a balancing of those two factors than an strict logical “and”, where more certainty and severity of harm allows an injunction with less probability of success on merits.


I'm hopeful as the judge seems to understand the ISP strategy:

> Mendez reportedly was not swayed by ISPs' claims that a net neutrality law isn't necessary because they haven't been blocking or throttling Internet traffic.

> "I have heard that argument and I don't find it persuasive," Mendez said, according to The Hollywood Reporter. "It's going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [court case over the FCC's repeal of net neutrality]. I don't place weight on the argument that everything is fine and we don't need to worry."


Suing to block a law rather undermines the argument "we had no plans to break it".


That isn't quite what they said though, at least in the quoted text. They said they had no plans to block or throttle internet traffic. Regulations can have a broad effect limiting what businesses can do in a variety of ways beyond the narrow effect that is used to justify it. This law also includes prioritizing traffic and other things according to the article.


Eh, I wouldn't be so quick to hide under that tree for protection in the lightning rich environment of civil rights violations as a whole.

I think laws should be challenged in order to force coming to terms with second and higher order effects, and as a matter of course be measured and revisited for reconsideration over time.

That being said, from a heuristic driven, rhetorically defensive perspective, I totally get, and second your perspective in this case.

The "Thou dost protest too much" bell is strong with this one.


Exactly. This attack on the law itself demonstrates their intent.


On the one hand yes, on the other hand laws intended to prevent some behavior are usually less efficient than participants just not doing that behavior, and add extra overhead to the people whom you're worried about doing that behavior.


It's hard to justify expensive litigation to block a law preventing you from something you weren't doing or intending to do anyway. The only reason to spend all that time, effort, and money is to at the very least make sure the door is open for you to do such things in the future. Or worse, to keep doing them as we speak.


I think the risk is that there will be more direct involvement by the governments in dictating what the ISP can and cannot show.

Politician's already criticize big tech for not doing enough to censor and remove fake news. I could see this laying the ground work for further involvement. Because "allow all legitimate content" can turn into disallow "illegitimate" content on the ISP level


Again, not necessarily true.

Frequently, legislation intended to block things doesn't just say "this is illegal now – don't do it". It frequently includes things like reporting requirements to ensure that you are not doing these things without the government having to constantly keep tabs on you (and obviously hefty fines / etc if your reports are found to be inaccurate).

These reporting requirements (and other, similar requirements that usually accompany such legislation) can be an expensive hassle, possibly more expensive than "expensive litigation". The case only needs to be litigated once, while something like reporting requirements continue in perpetuity.


Going through the text of the bill [0] the ISP challenge I found nothing that implies such burdens on the them. If they exist in some other text I am not aware of them. Until shown otherwise I can reasonably assume ISPs simply fight a law that prevents them now and in the future from doing something that is financially advantageous to them, despite being disadvantageous to the regular consumer.

[0] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...


Wouldn't this prevent someone like t-mobile to offer a deal in which netflix streaming doesn't count towards their data cap before throttling? It limits their ability to strike deals like this with content providers. But I guess that's the point?


Well yes, because now you either subscribe to Netflix or you don't stream video because caps will cut you off.

It's funny how some cable operators also offered the benefits of their video service not effecting your data usage, while other video services do. That is anti-competitive and designed to make you buy their services rather than other people's.

It has nothing to do with infrastructure as customers are allowed to stream unlimited data, and even if they go to a competitor, people generally watch at the same time. So your bandwidth is going to get hammered at the same time anyway.


Yes, that’s exactly the point. A local monopoly’s deal with Netflix or even just their chose to exclude data sidesteps the free market and is thus bad.

If you had the choice of say 500 local ISPs then net neutrality isn’t an issue.


Mobile networks are excluded from most of the law. But if this applied to them then yes, that deal would be prevented and that would be the point.

But the binge-on thing where any 1.5Mbps or less video is zero-rated is basically acceptable.


> usually less efficient than participants just not doing that behavior

This has a terrible track record whenever there is a significant financial incentive for participants to do the thing.


This argument is akin to saying a law against murder is unnecessary because you haven't killed anyone. It is unpersuasive in the utmost.


It's also a lie. AT&T currently has a slow lane. Eg, I have fiber gigabit duplex, but for encrypted uploads to unknown servers, I get throttled to 10mbps. This restricts VPN traffic to many companies, including mine 10 miles away. This also restricts bit torrent traffic, and AT&T employs some sort of Sandvine like service that sends disconnect messages to users downloading from AT&T.

As far as I know AT&T has not created a slow lane for download speeds, which is why most people probably do not notice.


There are many possible reasons for a network traffic between two endpoints to not saturate your connection throughput to your ISP, and unless you can rule out all those other reasons, you can't just conclude that the lower throughput is due to any kind of deliberate throttling. I'm not saying they are NOT throttling. I'm just saying what you said is not enough evidence.

It's true Comcast has been caught doing a packet forgery - https://www.eff.org/wp/packet-forgery-isps-report-comcast-af... . If ATT is also doing it, it should be straightforward to collect evidence. So is there any evidence collected that shows ATT is doing packet forgery ?


I was wondering if I was the only one having that issue. It's a shame no other company in my area offers 1000Mbs duplex because when it does work, it's great.


This must be regional. I also have AT&T Fiber and have not experienced any throttling under any circumstances, regardless of VPN usage.


Have you tried seeding something on bit torrent? That's a pretty easy way to tell.


Yes, over a VPN. Works fine.


Cellular networks, I believe, are allowed to throttle.


If ISPs have no plans to block or throttle internet traffic, then they should have no objections to this ruling...


> Mendez reportedly was not swayed by ISPs' claims that a net neutrality law isn't necessary because they haven't been blocking or throttling Internet traffic.

What? Is that an actual legal argument? "You can't pass a law unless people are actively breaking it" doesn't make any sense.


Such an excuse was good enough for Chief Justice Roberts' to dismantle VRA Section 5.

>...throwing away your umbrella in a rainstorm because you are not getting wet.


To the extent the importance of a governmental interest is to the validity of a law (basically, any time it is required to pass more than rational basis test review because of either the rights impinged or the axes on which it discriminates), “the behavior it seeks to prevent does not exist” is a component of a useful argument (you really want to be able to finish with “and is unlikely to exist in the future in the absence of the law”, as well.)

But in this context here, we aren't really talking about the validity of the law but about an injunction while the law is being challenged. Where, actually, that argument seems to cut against ISPs, since an injunction generally requires a showing of irreparable harm to the other party if the injunction is not granted; “we aren't doing what the law would prevent and have no intention of doing so” is exactly an argument that you have no need for an injunction.


To be fair, I can see at least some sense in it. Specifically, it seems like almost every law of any complexity has unintended consequences. In general, those consequences are negative. Having an extra law on the books means one more thing that can go wrong. As such, creating a law that has no actual benefit (nobody will break) has a fair chance to have a negative impact on society.

Conceptually, it's not unlike adding the hardware to a car for a feature nobody will use. It's something that can break, for no benefit.

All that being said, I do not agree the law would be useless because I assume the ISPs will do everything in their power to make money at the expense of the well being of everyone else.


To the extent that is true, it is because congresscritters and politicians have no incentive to monitor laws until something visibly bad happens.

Also, we have absolutely shoddy education in the humanities. Economics, psychology, world history, etc, are 'useless' until you're reminded that we have to deal with human beings doing what they do.

Anyway, I don't see why ISPs would not break net neutrality laws especially if they can nickel and dime people even more.


It is a not-completely-frivolous argument in this procedural context, you could say. This is not the final determination in the case; it is just a question about whether the law can be enforced right now, while the case is pending. If the ISPs could show e.g. that there was significant harm to them and no harm to CA in temporarily barring enforcement of the law, then the judge might be obligated to rule in their favor. It’s more complicated than this, but this is the general idea anyway.

It’s still a BS argument, to be clear, and good that the judge rejected it...


The ISPs showing that there was significant harm would contradict the claim that they were already following the rules without being forced.


Makes no sense at all.

Even further, if you're not doing anything that would break the new law then why the need to oppose it?


I tend to default to believing bad faith from the ISPs given their monopolistic power in many many places around the US. However, I disagree with this argument in a broad sense because:

1. Law enforcement itself has costs.

2. The US has so many random laws and the power given to the president and AG to selectively enforce said laws that it translates to "Whoever is in power at the executive level gets to attack whoever they want at their convenience".

3. I see a very clear line between this argument and "If you don't have anything to hide, why do you need privacy?" argument.


The conclusion of your first two points is to get rid of laws, not stop making new ones. I have no idea where you're going with your third point.

Edit: I hope that didn't come across as aggressive. I am genuinely curious about what you were demonstrating with your third point.


I think the point of the first two laws isn't just "get rid of laws" but rather, only create and keep around laws that serve an immediate purpose. Essentially in opposition to the make a law because it might solve a problem later on.

I agree with enforcing this laws against ISPs now as I think internet connectivity and accessibility protections are problems that need solved now.

I think their third point is likely just pointing out that many of the users of this site are probably opposed to the "If you don't have anything to hide then why do you need privacy argument", yet are taking what the author sees as a similar argument against the ISPs. It could be viewed as hypocritical and indicates that there needs to be more argument for why someone would want these enforced ASAP other than "If you aren't doing anything bad now then why do you want to block the law".


That is a good point on the first part. What I was trying to demonstrate with my point and only recently was able to put into words is that not making new laws doesn't solve the problem they were worried about. I would also say history has shown that unchecked power leads to abuse and that only solving problems in time has led to terrible outcomes.

Towards your point on their third argument, the arguments aren't similar. You don't want to keep only illegal things private. You can have a bank account, but I would expect you wouldn't want to share your account number with just anyone. The argument is disingenuous because everyone does have something to hide.

Going to the latter portion of your third point, regarding the timeliness of your "bad" behavior, that sounds like a terrible way to come up with rules. I wouldn't wait for the first murder to decide that maybe people killing each other isn't the best way for society to function. Of course, I do have hindsight of history to aid me in this, but if that is what is required, I would point you towards my first point about unchecked power. Depending on the specificity your argument requires, I think it applies. I think this also applies a little bit to your first argument around keeping around only immediately purposeful laws.

I think the real solution is to only keep around sensible laws and eliminate those that aren't. And I would say in this argument, these laws do serve an immediate purpose as these telecoms have demonstrated time and time again that they are willing to abuse their customers in ways that are totally legal.


I took the conclusion of his/her first two points to be, "think carefully whether cost outweighs benefit when making new laws or keeping old laws," not "get rid of all the laws! anarchy!"


I can understand that. I think, if you think carefully, this is 100% necessary. I was talking to the other commenter, but telecoms, and really capitalistic businesses as a whole, have demonstrated the will disregard morality in the name of an extra buck. (They'll also disregard laws for the same reason but at least we can pretend to do something about it.)


Even assuming they don't plan to engage in the kind of conduct that the law was intended to stop, they could still be adversely impacted by the law as written. For example, consider a peering dispute which leads to the connection between two networks becoming overloaded. A resolution where one party paid to fix the issue could be interpreted as paying for prioritization.


Because duplicity is an ethical norm for the entire Legal sector.


No, it's not an effective legal argument.

To get an injunction, the claimant (ISPs in this case) would need to show a likelihood of success on the merits _and_ irreparable harm during the pendency of the lawsuit. If the ISPs are not violating the law, it's hard to imagine that they can show that the law is harming them.


It's a poor legal argument, but seems like a solid civics arguments. Sadly they aren't trying to appeal to the public or lawmakers, they are trying to appeal to the judge, so it seems like wasted effort.


> It's a poor legal argument, but seems like a solid civics arguments.

Is it though? Seems the opposite to me: reactive laws (aka sensational news items -> law) are generally ill considered and badly conceived. Trying to carefully consider how items and technologies can be used, and whether those uses are things which should be forbidden, seems like it'd generally lead to much better law-making, not attached to any sort of emotional "fog". This process won't catch every misuse, but any misuse it catches is one which'd almost certainly have been seen.

It's the same idea as trying to consider how an API could be (mis)used before deploying it, and deciding whether you want to allow that or specifically check against it.


I like that analogy. When designing an API I try to avoid over-engineering for use cases that might exist in the future, but at the same time I do try to make it hard to end up with invalid states. You don't need to wait around for a user to send invalid data before designing to prevent that.

So I guess the question is whether, in this analogy, net neutrality is about use cases or about valid states? Personally, I see it as more of the latter.


I'd be much more willing to accept your argument if this was reactive.

There is historical precedent of ISPs doing the behavior these laws are trying to protect against on large scales. They got caught, and because of the title classification they were forced to stop.

ISPs continue to have financial incentives to do these actively malicious behaviors to their customers so some level of protection needs to be in place.


Too many laws also hamper innovation. Trying to prevent something from happening that hasn't proven to be an issue yet can get in the way of things that are actually good but potentially get caught on a law that gets used against people in unintended ways.

Reactive law can work just as well too, it just needs to not be rushed. For example, Section 230 is a reactive law that allowed for the creation of the internet we have today.

I think your argument could be better made by saying that laws that are created quickly without lots of analysis and debate are bad. Interested parties on any given law need to be able to weigh in to provide insight about how it may impact them, and then it's up to lawmakers to find a good balance.

The public comment process that executive agencies have for rule changes could be nicely applied to our law making process as well.


I've been wondering more and more lately if the fight surrounding net neutrality is really going to get us the desired outcome given trends in computing as a whole.

The online experience is getting more and more centralized into fewer and fewer platforms. Additionally, more and more of the tasks we associate with "general purpose" computing devices are getting bundled up into locked-down app platforms or even into task-specific appliances. With the proliferation of 5G, I suspect we will start seeing a lot of these "appliances" come with their own, built-in-to-the-payment-model cellular modems. These platforms are increasingly hostile to freely running software from outside their locked-down ecosystems.

I guess the question I'm trying to ask is: How much will net neutrality matter if we're headed towards a world where all of the clients connecting to the net cannot freely run whatever software the users want?


In a world structured like that, it sounds like there would be good business opportunity in developing software and services that run on a general computing device.


Yes, but it would not be anywhere near as lucrative as selling a prepackaged turnkey “good-enough” solution to the masses - where the profits from the vendor lock-in allow you to mount a solid marketing campaign to drive sales and eventual regulatory-capture, allowing you to act in an anti-competitive manner.

We, the geeks, may value open-platforms, but observe that it’s Google, Apple, Samsung and Amazon that effectively control consumer home-automation and smart appliances - and they sure as heck aren’t interested in making their platforms open and interoperable. (I’m speaking as a Nest customer who got screwed-over by Google closing Nest’s open API - that was a blatant anti-competitive move).


.


Something like what? I was simply stating that when the market closes in on options, competition tends to pop up to meet the needs of the customers that don't want to be boxed in.


Speaking of net neutrality, I was a bit on the fence but overall a proponent of it, but it's now been a few years since the failure of net neutrality under Ajit Pai. By now we were supposed to be living in an internet dystopia.

Has that happened and I missed it? If not, why? Are ISPs just afraid of provoking the bear so they're behaving themselves?


> By now we were supposed to be living in an internet dystopia.

To be clear, the implications were always expected to be that ISP would start running extortion rackets where they would charge fees to competitors or large internet money makers. Effectively double-dipping on consumers, so not only do you pay the ISP for internet access, but Google, Netflix, et al have to pay ISPs for access to you.

This did happen. Netflix was throttled a few years ago and they reached a "deal" with Comcast and a few months later, Netflix rates were increased.


> This did happen. Netflix was throttled a few years ago and they reached a "deal" with Comcast and a few months later, Netflix rates were increased.

1) This happened prior to net neutrality regulations.

2) This was a peering dispute, not throttling.

3) Net Neutrality did not regulate peering.


The quote from the judge in the article:

"It's going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [court case over the FCC's repeal of net neutrality]. I don't place weight on the argument that everything is fine and we don't need to worry."


Comcast paused all its data caps among other things due to Covid https://corporate.comcast.com/covid-19

Maybe Covid restrained other ISP actions we would have otherwise seen


It's interesting, the ISPs argument for capping data generally gives some nod to congestion / traffic control. Covid hit and you would imagine that with distance learning, work from home, increased use of streaming services for entertainment, etc, that the traffic would only increase.

Comcast (and others) realized the PR nightmare that it would cause to keep the caps in this situation, but it seriously undermines their congestion argument.


They’ve restored them now; I got a notice last month. Two person household with one TV and one PC and a couple phones, no torrenting or anything.


Of course, Comcast's own OTT services are exempt from the data cap. What a coincidence :)


And a net neutrality violation. Maybe CA customers won't be subject to the cap anymore? Or maybe they'll force Comcast to include their own traffic in the cap?


Almost certainly the latter. Data caps are still legal, from my understanding.


Yes, the caps are legal, but counting some data towards the caps and other data not towards it is what's illegal. The question is will Comcast hamstring their own streaming service by counting in the cap, or just get rid of the cap?


Wait, you were uncapped until just last month? In my area the cap was only removed for 3 months total. They did generously raise it from 1TB to 1.2, though.


>By now we were supposed to be living in an internet dystopia.

No, no we weren't. Like any hot political issue, the ramblings of enthusiastic dummies should not be the standard by which we judge a position.

The most cursory of sober analysis recognizes that business models do not change overnight. Even if they wanted to act as quickly as possible, established ISPs have tons of inertia.

Extending a slightly charitable take to proponents of net neutrality recognizes that ISPs would use their existing leverage to take inches here and there, skillfully massaging the messaging with expensive PR and marketing teams each step of the way. The question is whether the sum of those changes is just a business taking advantage of negotiation power, or if it sums into too anti-consumer of a business model.


ISPs are afraid to make their move too soon


Sonic is the best ISP the world has ever known. I hope everyone in California can have them some time soon. They are just a great ISP. 1 gig symmetric fiber, no cap.

I will never stop recommending them so long as they remain what they are now.


Sonic and DSLExtreme were the ones I used for ages with very few issues.

Have Google Fiber now: gigabit all the time, no caps, 100% availability so far, $70/mo.

Also, Verio (NTT) had 512kb SDSL for $60/mo. in Davis CA with 8 ms to Stanford in 1999. Dotcom times, sigh.


Aren't they using AT&T fiber network though? So what differentiates them from AT&T and others - customer service or something else?


They run their own network and also resell AT&T fiber when they don't have their own network.


It's not a loss for ISPs. It's a win. This should help them reintegrate into a just economy and moral society.


Yes, I was a little confused at why the article framed it as "a loss for ISPs". Did ISPs pay Ars Technica to put a spin on it?


Well the ISPs are financing the side that fought for the injunction and lost, are they not?


That wasn't the tone of the article and it's disingenuous to pretend it was.


Hmmm. Perhaps someone that practices in the field (or at least took Con Law in the last decade) can chime in, but State net nutrality laws would seem to be an example of when the dormant commerce clause (or was it negative commerce clause?) would apply.


That inference prohibits discrimination against interstate commerce, so e.g. allowing in-state unpasteurized butter but forbidding out-of-state would be in breach.

Applying stricter standards than federal, or average, is not against the dormant commerce clause, as long as it's applied equally to everyone. So California would not be in breach as long as they apply net neutrality to:

* all ISPs period

* Californian ISPs only

There's also an argument against "inappropriately burdening" interstate commerce, but that argument doesn't really make sense against NN: traffic shaping and traffic-specific charges require the addition of systems dedicated to those ends. NN requires not doing anything.


Thanks!

The “inappropriately burdening” cases is what I was thinking of. I suppose I would disagree that the theory is inapplicable. The law burdens isps by requiring them to alter their ordinary business practices in a way that substantially affects interstate commerce.

That said, I’m sure the issue was raised and rejected.


That's now how the dormant commerce clause works.

It doesn't matter that a state law may affect a business' ordinary business practices in a way that affects interstate commerce. What matters is that the state law does so in a way that discriminates against interstate commerce (meaning that different rules are applied to out-of-state businesses than to in-state businesses).

Thus, if the law applies equally without regard to whether the transaction is intrastate or interstate, the dormant commerce clause is not implicated.

In this case, the CA net neutrality rules apply to all ISPs providing services in CA. It does not require them to apply net neutrality rules to non-CA customers. Therefore, the dormant commerce clause does not apply.


I’m sure the industry wants Congress to weigh in on this, since they’ve done their part in ensuring the corruption of that institution. If the courts end up siding with CA on this, you can be sure Congress will be voting on this shortly after.


Personally I very much like the idea of having multiple pipes for different classes of traffic, as long as I (and/or the apps I'm running) get to choose what goes where. Presumably that would be permitted under the California law?

For example, gaming traffic and audio conferencing/telephony need low latency, which requires short queues (to minimize queuing delay) or no queues at all (e.g. cut-through routing.) However, short queues and cut-through routing break if the incoming data exceeds channel capacity. Typical solutions are separate queues/queue slicing and/or rate-limiting/throttling, and I'm completely OK with that because it enables low-latency, low-bandwidth applications like gaming and audio.

What I really don't want is a buffer bloat situation where everything goes into the same giant queue and gaming/audio traffic has to wait behind Netflix, software updates, cloud backups, etc..

There's a reason we have express checkout lanes at grocery stores, after all, as they tend to reduce queuing delay for people with fewer items.


I'm curious -- are there any examples of what ping time would be from SF to NY if something specific like this existed? How much of current (additional) ping is due to queueing vs speed of light in copper?

Or would this just make it more reliable -- instead of jumping around a bit, a consistent connection with reliable, predictable responses?


Wait, I thought that private companies can censor whoever they want? Presumably that means they can also charge people whatever they want, and if you don't like it, build your own ISP.


There are huge barriers to entry in ISP market, but very few for social platforms (assuming you are referencing censorship on Twitter, Facebook, etc). The argument to “go build your own ISP if you don’t like it” isn’t really viable.


I followed the link hoping to read an excoriating putdown from celebrity Judge WH Alsup but I see he retired a month ago. Happy retirement, friend of tech!




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