Warning in advance: The following musings are not positive, you may wish to skip this comment.
The last references to the proposed text I read still had "lawful content" as a phrase, one I consider to be a key phrase.
In order to allow lawful content, a definition of lawful (and therefore unlawful) will be required, as well as inspection of content to allow enforcement.
I am inquisitive, this leads me to questions:
What words will I be disallowed from using to keep a website online? What speech will I need to silence?
Will this be similar to free speech zones? Will I be allowed to run a webserver as long as I put up certain warnings/guarantees? Or carry a specific type of rating in a revamped website rating system?
This inspection: Will my ISP be required to perform packet reconstruction to analyze my content to decide whether it should be given a pass or not? Should we be looking to products like Comodo's PrivDog as a model of how the government should set this up? Assuming they address the invalid cert part, maybe our government should take over all CAs, to make sure they can read all encrypted communications to confirm they are lawful?
I am deeply disappointed that I feel like I can start quoting George Orwell to make my points...
On a positive note, with all of this extra traffic and the subsequent requirements, maybe the US will have to invest in faster network infrastructure without having to rely on Google Fiber threatening the local monopolies.
And since the FCC is involved, rather than this being a market-driven cost approach, it will likely be more a tragedy of the commons-based cost approach - My fellow tax payers and I will all foot the bill. At least we won't be as likely to notice that it is much more expensive than it needed to be. And it can be passed on to more than one generation.
Depending on who I listen to, there are rumoured to be quite a few people out of work who could benefit from more job creation, maybe we will get a new governmental organization, similar to the DHS, to oversee this.
There seem to be so many ways this does not end well.
Yeah. It's in there so that courts can order sites blocked... not the FCC.
> What words will I be disallowed from using to keep a website online? What speech will I need to silence?
This boogieman comes from part of the DMCA '96 that was struck down by the courts.
> Will this be similar to free speech zones? Will I be allowed to run a webserver as long as I put up certain warnings/guarantees? Or carry a specific type of rating in a revamped website rating system?
Er.. truly doubt it. Do you have to put up certain warnings/guarantees when you make phone calls, or carry a rating on your personal phone number?
> Will my ISP be required to perform packet reconstruction to analyze my content to decide whether it should be given a pass or not?
In fact, the courts have decided that this is illegal (in the context of the telephone) without a warrant. Phone company thought a customer was doing something shady because of their usage patterns and cut them off. Turns out he wasn't doing anything shady, and the courts ordered his phone service restored.
> My fellow tax payers and I will all foot the bill.
Hmm.. FCC's budget for FY 2011 was $336.8 million ... FY2011 expenditures for the federal government was $3.603 trillion ... so, you're up in arms about 0.009% of your taxes?
A prohibition on blocking lawful content doesn't create any new authority for anyone -- courts or FCC -- to order sites/content blocked, it just doesn't take away ISPs ability, which exists in the absence of regulation, to block unlawful content, whether on their own initiative or pursuant to an order from some entity with preexisting authority to order the content blocked.
> it just doesn't take away ISPs ability, which exists in the absence of regulation, to block unlawful content, whether on their own initiative or pursuant to an order from some entity with preexisting authority to order the content blocked.
Their ability to block unlawful content on their own initiative would be restricted as a Title II common carrier. It would have to be ordered by the courts.
They can't terminate based on suspicion of unlawful use; there must be evidence:
* Shillitani v. Valentine, 53 NYS 2d 127 (1945); "a telephone company may not refuse to furnish service and facilities because of a mere suspicion or mere belief that they may be or are being used for an illegitimate end; more is required."
* Nadel v NY Tel., 170 NYS2d 95 (1957); carrier suspected caller of using the telephone for illegal gambling transactions and terminated their service. Court ruled that service should be reinstated: the telephone company "is not at all qualified, in the absence of evidence of illegal use, to withhold from the petitioner, at will an essential and public utility."
They are not authorized to collect said evidence themselves; that lies with law enforcement:
* People v. Brophy, 49 Cal.App.2d 15, at 33, 120 P2d 946, at 965; "public utilities and common carriers are not the censors of public or private morals, nor are they authorized or required to investigate or regulate the public or private conduct of those who seek service at their hands."
This looks like an example of pretending there's no precedent and using that as an opportunity to invent an arbitrary strawman that supports your hobbyhorse (in this case extreme paranoia). Internet copyright laws (NET, DMCA, etc.) don't work anything like what you've proposed and there's no evidence that the FCC is trying to use net neutrality as a backdoor to reverse that precedent.
The FCC's traditional role as broadcast obscenity-and-violence censor provides evidence that its powers will be used that way.
Part of the FCC's traditional regulation of phone networks also included ensuring wiretap-capability.
FCC appointees, loyalists to the two national parties, will have new discretionary powers over ISPs' businesses.
When the next scare about terror, or child-exploitation, or piracy, or violent/subversive/harassing/offensive media comes along, and DC needs to "do something", will ISPs thumb their noses at their new minders at the FCC, or "go along to get along" as "team players"?
> The FCC's traditional role as broadcast obscenity-and-violence censor
Well... no, their traditional role was the licensing of radio spectrum.
> evidence that its powers will be used that way.
Title II does not give the FCC the permission to censor the internet; in fact, the portion of the TCA 96 that _did_ require that the FCC censor the internet was struck down by the courts.
> When the next scare about terror, or child-exploitation, or piracy, or violent/subversive/harassing/offensive media comes along, and DC needs to "do something", will ISPs thumb their noses at their new minders at the FCC, or "go along to get along" as "team players"?
And what, pray tell, would a commission with 1,720 employees and $336m in funding be able to do that the NSA and the FBI aren't already doing?
Part of the FCC's "spectrum" role has been fining people for indecency and requiring auto-blocking 'v-chips' in TVs. It's our only national censorship agency.
That the courts have struck down prior blatant attempts to use the FCC for internet censorship shows the risk: that is what Congress and opportunists would like to use the FCC for, given a political panic and half a chance. This is exactly the agency that would enforce encryption bans, or national domain blacklists, or mandatory packet inspection/retention – if and when those policies from other countries arrive in the US. So why give the FCC more levers of soft, discretionary power over an industry? Why build up the idea of FCC as the Internet's keeper, like it's broadcast's keeper?
The NSA prefers to stay hidden in the woodwork; the FBI only investigates and prosecutes specific serious crimes. But with utility-style regulation, agency staff regularly review and approve – or fine! – business activity. Regulators apply a larger body of vaguer rules, that they can change themselves and where usual presumptions-of-innocence or evidential standards don't apply. Thus even without explicit rules against certain expression, the need to keep regulators happy nudges companies into "voluntary" compliance with political agendas, like default filtering for a "safer internet", or casual "information sharing" with law-enforcement for "cyber-security".
On broadcast airways. The logic was that owners of broadcast receivers should be able to prevent indecent/obscene material from entering their home if they so wished. But due to the nature of broadcast media it was often impossible to know if, while flipping through channels, you might end up on something you did not wish to see. These were not televisions you could type a channel number in to; these were not digital radios that enabled the removal of channels you did not want. It sucks, but has absolutely no bearing on the internet (please to be reading through the telecommunications act. As legalize goes, it's not that bad).
> requiring auto-blocking 'v-chips' in TVs
Auto-blocking? Please expound. From my understanding, v-chips give the owner of the television the ability to censor the television broadcasts entering their home. The FCC, in this case, wasn't censoring - it was giving the option to television owners to censor. The best outcome would have been the requirement for televisions to have the v-chip installed, and removing the indecency fine authority. It's too bad it didn't work out that way. Keep in mind that cable television is also regulated under the TCA - see U.S.C. 47 ch 5 subchapter V-A
> enforce encryption bans
How? Without, you know, violating a plethora of privacy laws.
> national domain blacklists
How? The FBI can already seize domains, anyhow. Title II does not give the FCC the authority to operate a domain registrar.
> mandatory packet inspection/retention
Not really. The law (have you read the TCA?) requires that communications _not_ be inspected - by the FCC _or_ the telecoms.
> Why build up the idea of FCC as the Internet's keeper
Because the market is doing a shit job of it. Once upon a time, DSL was classified under Title II. Speeds increased over time. In 2005, it was reclassified. And speeds have been stagnant ever since, even though there is DSL technology that can provide over 200Mbps.
> But with utility-style regulation, agency staff regularly review and approve – or fine! – business activity.
Like when they fined that hotel for jamming wifi networks? That kind of fine? Or when they fined long distance phone companies for billing customers for services without their authorization? Or when they fined AT&T for operating fixed point-to-point microwave stations without authorization or license? Or when they fined Viacom and ESPN for misuse of Emergency Alert System warning tones? Or fined a company in Alabama for pre-recorded sales calls? Or fined Worldwide Industrial Enterprises for faxing 17 unsolicited advertisements? Or fined TerraCom and YourTel for failure to protect their customer's information? Or when they fined T-Mobile for hearing aid compatibility violations? Or cited RGS Group for illegally selling Wifi and cell phone jammers?
Which of these was nefarious?
All of them could have been challenged in court.
Even the rules they adopt can be challenged in court. See, for example: Verizon V. FCC.
> Regulators apply a larger body of vaguer rules, that they can change themselves
They can change them, yes. That's what the FCC is doing now. However, the FCC -- like all independent regulatory bodies - has procedures for changing the rules. And those procedures include a period of public comment. They don't change them in secret and on whim. Do some research: http://en.wikipedia.org/wiki/Notice_of_proposed_rulemaking
> and where usual presumptions-of-innocence or evidential[sic] standards don't apply.
Presumptions of innocence are not a part of civil law, either - only criminal law. When the FCC decides to fine someone, they issue a Notice of Apparent Liability and Order. The entity receiving this order is given 30 days to either pay the proposed fine or respond in writing. One of the ways they can respond is by filing a lawsuit/injunction against the FCC.
> the need to keep regulators happy nudges companies into "voluntary" compliance with political agendas, like default filtering for a "safer internet", or casual "information sharing" with law-enforcement for "cyber-security".
It's easier to do that with a senator or representative that needs to run for re-election, isn't it... and laws that don't have a mandatory period of public comment before being signed are a lot easier to craft secretly.
> default filtering
Given that default filtering of the internet, if broadband providers were regulated under Title II, would be illegal...
> casual "information sharing" with law-enforcement [...]
This already happens. If anything, Title II would _reduce_ said casual information sharing, because it codifies how said sharing should happen. See: U.S.C. 47 S. 229 (b): https://www.law.cornell.edu/uscode/text/47/229
The last references to the proposed text I read still had "lawful content" as a phrase, one I consider to be a key phrase.
In order to allow lawful content, a definition of lawful (and therefore unlawful) will be required, as well as inspection of content to allow enforcement.
I am inquisitive, this leads me to questions:
What words will I be disallowed from using to keep a website online? What speech will I need to silence?
Will this be similar to free speech zones? Will I be allowed to run a webserver as long as I put up certain warnings/guarantees? Or carry a specific type of rating in a revamped website rating system?
This inspection: Will my ISP be required to perform packet reconstruction to analyze my content to decide whether it should be given a pass or not? Should we be looking to products like Comodo's PrivDog as a model of how the government should set this up? Assuming they address the invalid cert part, maybe our government should take over all CAs, to make sure they can read all encrypted communications to confirm they are lawful?
I am deeply disappointed that I feel like I can start quoting George Orwell to make my points...
On a positive note, with all of this extra traffic and the subsequent requirements, maybe the US will have to invest in faster network infrastructure without having to rely on Google Fiber threatening the local monopolies.
And since the FCC is involved, rather than this being a market-driven cost approach, it will likely be more a tragedy of the commons-based cost approach - My fellow tax payers and I will all foot the bill. At least we won't be as likely to notice that it is much more expensive than it needed to be. And it can be passed on to more than one generation.
Depending on who I listen to, there are rumoured to be quite a few people out of work who could benefit from more job creation, maybe we will get a new governmental organization, similar to the DHS, to oversee this.
There seem to be so many ways this does not end well.