This has been a difficult week for pure neutrality advocates, as the decision of the Federal Communications Commission to remove Internet neutrality rules was upheld by the Court of Appeals for the District of DC.
This was a rather narrow victory for the FCC, as the court stated that it was necessary to postpone the court decision related to the precedent in the 2005 controversial case NCTA v. X (or simply ] Brand X in brief). And the court said the FCC could not block states like California from writing their own neutrality laws, so the next fight is on.
But what really stands out about DC's decision in this case is: network neutrality, the federal level has become a legal mess and has little to do with the real problems that ordinary people in the Internet access market face.
The heart of net neutrality policy debate is incredibly simple and easy to understand for almost anyone: Do you think ISPs should be able to block, jam or otherwise interfere with Internet traffic outside of normal network management? Most people don't think so ̵
But because the struggle takes so long and the rules are imposed and removed so many times. According to various legal theories, the court's actual case and legal issues are within a million miles of a very simple political issue.
Instead, the legal side of net neutrality has been the exercise of lawyers who make small arguments about whether washing machines can make phone calls, whether the consumers of one broadband service provider still feel the benefits of competition and whether or not the federation is regulatory. acts may change state law if federal rules do not actually exist. "It's good if AT&T can suppress Fox News by broadcasting CNN for free," it never really arises, though it's a major policy issue. It is deeply upsetting
But it also reveals, as it makes it clear that net neutrality must depart from attorneys and judges and be recorded in fact. And since the court has ruled that individual states can adopt their own net neutrality laws, this is likely to be the case.
But let's review this – you can download a copy here to continue.
You are still fighting the ghost of Antonin Scalia
The last 40 years of neutrality history have been largely fought over whether the Internet is an "information service" (such as the AOL or Prodigy fenced-in garden under Title I) or general operator "Telecommunication service" (as landline telephones regulated in Title II).
The main precedent here is the decision 2005 of mark X : the Supreme Court has ruled 6-3 that broadband internet is an "information service". Brand X is also notable for expressing profane dissent from the late ultra-conservative justice Antonin Scalia, who thought it blindly obvious that access to the Internet was a telecommunications service. Brand X is a shadow in the whole discussion of net neutrality, and it is obvious that the DC circuit is bound by this precedent, but thinks it should be revised.
Regardless of legal history, it is true For most people it seems obvious that broadband Internet access is a communication service that should be neutral. In this case, Ajit Pai and the FCC have argued that broadband is actually an "information service" because access is combined with … DNS and caching services. This is DNS, both on domain name search servers that translate domain names into IPs, and caching services that place copies of data closer to your location to speed up your access.
Not by email, not by some charming AOL room. DNS and caching. And since this argument worked in the case of [X 2005 the court in 2019 was obliged to say that the FCC could use the same argument again.
We believe that classifying broadband Internet access as an "information service" based on DNS functionality and caching is a "" reasonable policy choice for [the Commission] to make …
This statement is that Internet service providers are offering DNS and caching are sufficient to turn direct broadband internet into a "information" service – immediately forcing the court to make long indentations and metaphors. Here's a brief description of how DNS looks like invisible characters on the internet subway? I have no idea what that means.
Although DNS is "invisible" in the sense that it is "under the hood", so to speak, it remains "important for providing Internet access to the general consumer." Using a particular Say, a tool or "configuration" protocol can, for example, make Internet traffic a little faster or slower, since the use of subways in different rail technologies can affect the speed of trains. But the lack of DNS would have been quite different from that of ordinary users navigating the Internet, similar to the complete absence of signboards on the subway. Unlike DNS, a sign is, of course, quite obvious, but its purpose is the same for all practical purposes.
Of course, you can always just use a different DNS service than the one provided by your ISP, completely shattering this already stupid metaphor, but the court doesn't really think about it.
And so the court says that even if encrypted internet traffic (you know, like all HTTPS traffic) doesn't flow through ISP caching servers, it doesn't matter because, um, the FCC says so.
The Commission found (without controversy in the record) caching "allowing and extending consumer access to information and their use on the Internet." In particular, "
Therefore, even though there is a widespread impetus. industry in the direction of HTTPS encryption – 73 percent of all traffic on the Internet is now encrypted – the mere availability of a server caching provider means that broadband is an "information service". This doesn't make much sense since ISP simply provides DNS servers (which you don't need to use) and caching (which doesn't matter for any & # 39; HTTPS connection) is obviously not enough to transform your broadband with & # 39; a 1998 Prodigy equivalent.
The Court resolves this argument by saying that DNS and caching were considered to be information services in by Mark X and he was not going to reverse that precedent. This is done using the metaphor of, ahem, knitting sweaters with gold threads:
The idea seems to be that ISPs now offer fewer fenced-in services of the kind consumers generally care about than about them in the era of the 2002 Cable Modem Order and the Mark X, so that is based on DNS flagging and caching only at the moment, just as dubious as saying that a few gold threads are woven into the ordinary sweater, convert sweater to ash ground clothes … But the Supreme Court never Jos & # 39; yazuvav or even hinted at such a quantitative standard to determine whether inextricably intertwined functionals can justify the classification of "information services".
It's not hard to see: Do DNS bidding and caching turn your Comcast connection into an AOL switched in 1998? Nobody would think so, but that's Isaiah Pai's argument, and he got the brand X in his back pocket, so he won. Again, this is a legal victory, not a logical one.
Stationary and Washing Machines
The court then considers whether broadband is a "commercial mobile service" which is a wireless version of a telecommunications service or a "private mobile service" which is analogous to the information service. I will regret you with the details of the lengthy, lengthy discussion that ensues, in addition to saying that the state of telecommunications law in 2019 is that the court is ending its decision based on the fact that smart washing machines cannot make phone calls.  You think I'm kidding.
The proliferation of "smart" devices with IPs, such as "servers, thermostats, washing machines and many other devices on the Internet of Things", threatened with this definition a new complication. If these devices were part of a public network, this could lead to the dubious result that the mobile voice will no longer be a commercial mobile service since its subscribers cannot connect to all endpoints on the network, such as IP TVs, laundry machines, thermostats and other smart devices »are incapable of voice communication. The whole argument of mobile broadband is whether mobile devices can connect to phone numbers!
If you think this is pointless, just try to understand what on earth this piece of words about VoIP means:
The spread of VoIP and its prevalence are orthogonal to the Commission on Mobile Broadband and VoIP. Regardless of whether or not many VoIP applications are used by many users and whether they are pre-installed or purchased on a special basis, the question is whether VoIP functionality is part of the service under consideration here – mobile broadband services – or other services using a mobile broadband service allows users to access.
I just want to reiterate that the main question here is "whether mobile broadband operators should be able to block and restrain internet traffic", and somehow the court got into a pointless argument as to whether access was VoIP services that connect to the phone system determines the answer.
Oh, but we didn't – let's continue and introduce a linguistic discussion about the definitions of "application" and "service."
Neither party defines (and we have not found) either a set of normative definitions intended to draw lines between "applications" and "services", or a set of generally accepted linguistic practices that draw such a line, or generally, when you should use the features of the applications that you can use with the service. belong to the "capabilities" of the service.
I would like AT&T to send this language to a customer annoyed that CNN is being transmitted for free in their data plan, but Fox News does not.
The court then seeks to make this nonsense clearer by inventing. a fake conversation that absolutely no one will ever have in reality.
If someone said to a friend, "I just got a great new tablet with a mobile broadband network," hardly anyone would say, "Great – Does your service allow me to get to you from my landline?" Of course, the owner of the new tablet can answer : "Not right now – but it could if I set a Google Voice number," but it only shows the linguistic ambiguity.
I read this rejected specification script for the Verizon commercial again and again, and it gets funnier and sadder every time Monopolies: They are Great
9038] Moving further, the court refers to the fact that the US broadband market suffers from insufficient competition, and concludes that competition is indeed sufficient even for people who have only one choice of broadband provider. we are satisfied with the other reasons for the Commission finding that competition exists in the broadband market.The Commission refers to an empirical study that confirms that the availability of two lead service providers is sufficient to BAKING significant competition. Consumers in areas with less than two suppliers can also benefit from competition; a vendor in the industry is "inclined to treat customers who do not have a competitive choice as they do" because competitive pressure elsewhere "often has the effect of shifting to a particular corporation."
It's just blind, obviously not true – if it was, everyone would like the price and service they get from the competitive ISP in America. Instead, Americans pay more at lower rates than most other countries. I would like to see this judge go on to tell the millions of people who are praying for better broadband in rural areas that they are in fact "reaping the benefits of competition".
But still do not worry about the lack of competition, the court says: if the providers do poorly, they will be formed because of the damage due to their reputation .
In addition, these providers may face enormous operating and reputational costs from bad behavior in non-competitive areas. Based on these well-founded conclusions and our high-security standard of review, the Commission is not arbitrarily concluding that fixed broadband providers are facing competitive pressure.
I just want to understand that the court is saying that AT&T, Verizon and Comcast and Spectrum are caring, smart companies that will do the right thing because they are so worried about their reputation. It's a good idea, but in the real world, everyone hates their providers more than ever. Verizon was silent on the union of firefighters during the fire which is perhaps the most obvious way to damage its reputation. And AT&T is busy building HBO through layoffs and talent disappearances, even as investor activists say its executives are doing poorly.
These companies are behemoths that have little or no competition, and they usually act because we are stuck with them.
I will not make any slogan because of the very technical legal arguments about whether the FCC can defeat state laws, except to say that the court was not very impressed with the FCC's argument that it implied authority to do so. , and was pretty cunning about that.
If Congress wanted Title I to grant the Commission some form of rest. -Commerce, reminiscent of the clause, denies the legitimate (and sovereign) powers of states, only by washing the hands of its own regulatory body, Congress could say so.
All thought ends, effectively begging either the states or Congress to write a law that, to be honest, is what is about to happen. (And indeed, the House has passed the popular Internet Preservation Act, but the Senate will not accept it, while states across the country have passed their own bills on neutrality.)
Broadband regulation has been the subject. lengthy lawsuits, broadband providers were subjected to, and then exempted from, the general regulation of carriers over the past decade. We refuse to re-enable the switch on the regulation of conventional carriers in these circumstances.
So, this is the main unsigned opinion. But I just want to point out that the two signed additional thoughts are equal. For example, Judge Stephen Williams wrote an opinion that agrees partially and disagrees partially, but the only thing you need to know is that it starts with a quote from Macbeth :
And be in these The juggling brothers no longer believed
that there was a double meaning with us,
that hold the word of promise to our ear,
and violate it in our hope.
So says Macbeth, finding that the assurances of the witches were absolutely bizarre and that his life was being destroyed around him. The enactors of the Order of 2018, though apparently not Macbets, may have some affinity in saying that they acted legitimately by rejecting the heavy hand of Section II on the Internet, but that each of the 50 states is free to impose it OK.
And Judge Patricia Millet wrote the opinion, which is referred to as concurrence, because she agrees that the court is bound by decision of mark X but every other part of it is a sharp reproach of the terrible opinion of the majority. But this is also written as sharply as possible.
Рішення Комісії чіплятися за DNS і кешувати як тест на кислоту для його регуляторної класифікації "не може нести дуже багато реальності". Сьогодні типове широкосмугове пропонування мало нагадує свою версію марки X X. Огороджений сад обсаджений, а поля засіяні сіллю.
Цю цитату в першому реченні виносять до Т.С. Еліоте, так що не хвилюйся, вся ця річ залишається такою ж зайвою, як ніколи. Але я вважаю, що у судді Мілле є одне правильно: Антонін Скалія прибив це в 2005 році, і ми з тих пір платили за неправильне рішення марки X .
Не лише садовий стін лежить у руїні, але й ролі DNS та кешування самі різко змінилися з моменту прийняття рішення про бренд X. І вони зробили це таким чином, що сильно сприяє класифікації широкосмугового зв'язку як телекомунікаційної послуги, як спочатку виступала справедливість Scalia.
Чим більше я читаю це рішення, тим більше зрозуміло, що юридичні махінації та переборені рішення, засновані на єдиному поганому прецеденті, стають все далі і далі від реалій доступу до Інтернету для звичайних людей. Це рішення може бути оскаржене, і Бренд X може бути скасований, але вже минулий час, коли чистий нейтралітет покине світ нескінченних судових викликів та юридичних дрібниць, і просто стане законом.
принаймні, здається, це смішне рішення відкриває двері для таких держав, як Каліфорнія.