Is Net Neutrality a legit beef against Senate Bill 773?

After posting the article regarding this new legislature I continued my research into the objections which have been raised by many cyber activists. Some of the concern is about ‘Net Neutrality’ and the potential for abuse of power. Let’s look first at the issue of content-neutral or client-neutral packet routing.

Net Neutrality – A Deeper Dive

Terry Zink, one of Microsoft’s finest, blogs about the nuances of how ISPs can mess with routing Internet traffic:

• • So you see, the source/destination of the traffic and its possible throttling is what has many Net Neutralists up in arms.  They fear that large corporations can get together and collude to influence user behavior. This is one example but there are others. 
  • Governments can pressure ISPs to throttle connections to opposition groups.  ISPs can cut deals with each other to knock other ISPs out of the market.  Google can team up with Road Runner and provide high speed voice services (not that Google would since they are a Net Neutrality advocate).  And so forth. 
  • If the net is neutral, that means that all cable providers can do is inspect the routing information and pass it along to the next best hop without prejudice.  Without it, they can inspect the type of payload, or the end-points of that payload, and make routing decisions that would degrade the user experience.

One of President Obama’s campaign promises was on Net Neutrality. This might explain why the FCC went after Comcast recently – and lost. Fred von Lohmann, Electronic Frontier Foundation senior staff attorney and all-around cyberlaw heavy hitter, has this to say in his analysis of this week’s Net Neutrality based FCC claim: 

• Here’s the problem: Congress has never given the FCC any authority to regulate the Internet for the purpose of ensuring net neutrality. In place of explicit congressional authority, the FCC decided to rely on its “ancillary jurisdiction,” a catchall source of authority that amounts to “we can regulate without waiting for Congress so long a the regulations are related to something else that Congress told us to do.”

The way I read von Lohmann’s brief was that FCC stepped up to the plate about net neutrality, however they were doing the high wire without a net.

1. There has never been the critical element of giving them power to do anything about regulating the Internet.
2. While cable TV is regulated, Comcast in this instance is a provider of the Internet through the cable infrastructure.
3. The actual authority for the FCC to moderate delivery of Internet traffic has never been established.

 This blogpost from thehill.com offers clarity:

• • If the FCC reclassifies broadband as a telecommunications service, it would have clear jurisdiction to enact regulations aimed at broadband Internet service providers. It would, therefore, be better equipped to enact net neutrality, a top priority of the Obama administration.

…So the meat of the Net Neutrality beef?

Part of the problem derives from the freedom the Internet (and its commercial providers the ISPs) currently has from any government agency having jurisdiction on the packet routing priorities. That solution itself however may provide more problems in the future. Growing up in Berkeley as well as hundreds of hours of flying around combat zones having to enforce outcomes of political decision provided me with plenty of observation of well-meaning policies getting tricky in the follow-through. For the best view on both positions, Terry Zink over at MSFT has a great pro/con breakdown.

Clarity from the Senate Commerce Committee on Senate Bill 773

Here’s a little remembered civics fact: most laws don’t evolve without public demand or policy gaps. In short, outside threats or internal fraud usually determines public involvement. In this instance, Senate Bill 773 mentions several key objectives which have been overshadowed by the Net Neutrality discussion with bipartisan support.

Declan McCullaugh, a CBS staffer, blogged this follow-up from the government in his CNET article about 773:

• • Update at 3:14 p.m. PDT: [the interviewer] just talked to Jena Longo, deputy communications director for the Senate Commerce committee, on the phone. She sent [an] e-mail with this statement:

1. The president of the United States has always had the constitutional authority, and duty, to protect the American people and direct the national response to any emergency that threatens the security and safety of the United States.
2. The Rockefeller-Snowe Cybersecurity bill makes it clear that the president’s authority includes securing our national cyber infrastructure from attack.
3. The section of the bill that addresses this issue, applies specifically to the national response to a severe attack or natural disaster.
4. This particular legislative language is based on longstanding statutory authorities for wartime use of communications networks.
5. To be very clear, the Rockefeller-Snowe bill will not empower a “government shutdown or takeover of the Internet” and any suggestion otherwise is misleading and false.
6. The purpose of this language is to clarify how the president directs the public-private response to a crisis, secure our economy and safeguard our financial networks, protect the American people, their privacy and civil liberties, and coordinate the government’s response.

Occam’s Razor shows us that if any legislature is not focused, simple, and within the Constitution’s charter for the Executive Branch, it doesn’t go far. Nobody in Congress wants to give the E-branch too much power because every four years, that power can be used against them.

One question remains: if this bill empowers the E-branch during times of war, what does a Cyberwar look like? There’s no question that some of the Bill’s provisions speed up a response, but what exactly defines cyberwarfare? In From Megatons to Megapings, we look at both sides.

Contributing Writer, Securing Our eCity