Justice Department Sues to Stop California Net Neutrality Law
nytimes.com
nytimes.com
(This is true, in fact, and the court cases it cites and the DC circuit have been clear on this point for years)
The order then reclassifies the ISP's outside of Title II.
Outside of the arguments around privacy jurisdiction (which were always dual jurisdiction with the FTC), i don't know what they are thinking.
Given that the courts have already decided the FCC has no authority to regulate in this space (outside of Title II), and Ajit himself has said it numerous times, arguing pre-emption seems like a loser. If they don't have the authority to regulate around it, it's hard to see how they will argue they have the right to pre-empt others: all the court rulings involve determinations about the scope of the statutes involved, which in turn is a valuation of what congress intended to regulate/how far pre-emption goes.
It'll be interesting to read the complaint to see what leg they are trying to stand on.
Besides the existing court cases making super-clear the lack of authority, just the sheer the number of statements and orders from Ajit saying the FCC has no authority here seems like it will be hard for the FCC to overcome.
They would have been much better off saying "we have plenty of authority here and we explicitly choose not to exercise it"
There have already been court rulings that states cannot regulate Title I information services. There was one just decided a few weeks ago in the 8th Circuit, Charter Advanced Services (MN), LLC v. Lange [1].
Pai immediately praised that decision [2].
That, in this suit coming so soon after that, suggests that is going to be the approach.
[1] https://scholar.google.com/scholar_case?case=162444264794194...
[2] https://www.fcc.gov/document/court-preempts-state-regulation...
Yeah, it did.
"There have already been court rulings that states cannot regulate Title I information services. There was one just decided a few weeks ago in the 8th Circuit, Charter Advanced Services (MN), LLC v. Lange [1]."
Interesting. This is not my area of legal expertise (i'm also way too lazy to read the 1996 act), but that looks like it would be a possibly winning approach if a bunch of courts have already accepted the pre-emption argument for Title I.
However, one important difference between this suit and those is that in those, the court agreed the FCC had the authority to regulate under Title I, and was choosing not to, explicitly pre-empting that set of state regulations.
See https://scholar.google.com/scholar_case?case=745168854586066...
Here, the DC circuit has decided in the past that the FCC has no authority to regulate net neutrality under Title I.
They could not actually regulate Net Neutrality under Title I if they wanted to.
At least one trump agency that took a hard right turn has already lost in court on that point in the past few months. The case escapes me, but it was in fact "the evidence has not changed, you can't just decide you don't like what was done before for political reasons".
FWIW: I suspect the real argument here is that congress has preempted California.
IE they could regulate this space, and have chosen explicitly not to do so, through the '96 act, etc.
It's a little bit of a weird argument though, because it's saying "we explicitly didn't give the FCC authority because we didn't want anyone to regulate it", even though the FCC has in fact tried to regulate it in the past because they thought they had authority :)
(IE Congress's intent was not so clear that we didn't have years of regulation, etc)
Then it doesn't matter what the FCC does.
This is a bit weird of an argument because congressional intent was so unclear that the FCC tried to regulate it many times :) (and it required a court deciding what the statute said).
The FCC can reinterpret its own statutes, actually, including ones that say how much authority it has. Those interpretations are subject to various standards around precedent and consistency. I doubt they would meet them here if they suddenly reinterpreted them.
(Note also that appeals courts are becoming more concerned about the deference given here to agencies to say what their statutes/regulations mean, and the supreme court is likely to take it up again sooner rather than later)
I think Fed gov, is arguing that California cannot regulate interstate commerce. So they cannot, for example create an 'import tax'.
I suspect, that eventually the argument will be around Originating and Terminating IP addresses. If both are in CA, then they can regulate it. If at least one outside -- than they cannot.
In telecom US taxation is there a well known, rule called 2-out-3 Rule.
One has to look at originating number location, terminating number location, and the location of the billing address. Then the tax will be levied according the rules of the jurisdiction, that is identified by 2 same out of the 3.
(I do not remember, what would be the case when all 3 are different... ).
So in the case of internet, I suspect, FCC will argue that CA can enforce the rule only for the location that satisfy something similar to 2-out-3 rule.
So for CA resident to be within the scope of the enforcement, they would have to use, say a VPN that's is also in CA...
Otherwise, CA cannot regulate a genuine interstate service.
This isn't about traffic, it's about the terms of sale of access service to consumers in the state.
That would open the issue up to reregulation under a later administration.
(and courts already decided the answer).
So there's no point in not.
And for anything else require they pay the property owner or city/county (as appropriate) at market rates per square foot of usage. Basically if you have a "utility" line on my property I can't use that space, so you better actually bye a utility.
And of course Federalist judges are not exactly that consistent either.
So we shall see, but I sincerely don't see how this would affect interstate ISP markets substantially.
It is considered interstate commerce to grow wheat on one's own farm to feed one's own animals under the theory that by doing so, he removed himself from the interstate wheat market (where he would otherwise have bought his wheat).
Since the internet plays a major role in interstate markets, one could easily extend this arguement to say that even local internet connections are interstate commerce.
One could actually argue that most anything is interstate commerce. This is one of the main reasons we don't hear courts arguing that federal laws overstep the constitutional authority of the federal government: everything is interstate commerce.
For example, could the federal government preempt the states from having public schools, public roads or a police force under the commerce clause because they impact the interstate market for private schools, private roads and private security? It seems like maybe they should only be able to preempt when the thing is actually interstate commerce and not just affecting it. But is there any case deciding that issue one way or the other?
On the other hand, that's a really low bar for the Federal government to meet. Especially in light of https://en.wikipedia.org/wiki/Gonzales_v._Raich, where the court upheld Federal criminal prohibition of homegrown marijuana for personal use, and where everybody stipulated (IIRC) that her marijuana wouldn't enter the stream of commerce. Note that both Kennedy and Scalia upheld Federal powers here, which is why their vehement opposition to Obamacare's individual mandate was so hypocritical.
With that line of argument I could also argue anything you do or say within the confines of your house is also public's business because it affects the public ultimately one way or another.
I would also mention that the internet tends to misuse precedent in the same way, well, the internet misuses logical fallacies. Finding a precedent you think is applicable to a court case doesn't mean the verdict is decided. Both sides, assuming they have competent lawyers, will submit numerous precedents they believe favors their side, after all. It is up to the courts to decide whether the precedents are applicable and whether to apply the precedent in any give case; precedents inform the court, they do not replace it.
I think the main reason that Civil Law systems have voiced opposition to judge-made law is because since their advent (French Revolution onward) Continental systems have emphasized democratic control and thus the supremacy of the legislature, whereas Anglo-American law historically emphasized (or reflected) competing power structures. An early French constitution made it criminal for a judge to "invent" a rule to settle a case; if the law was ambiguous the judge was supposed to refer the case to the legislature. But guess how many times a court declared a law ambiguous and referred it to the legislature? (Point being, Civil Law systems noisily refuted the legitimacy of judge-made law, but the reality was different.)
It's notable that Parliamentary Supremacy didn't completely solidify in Britain until the late 1700s. American law didn't inherit such a notion of unlimited legislative authority. The concept of Substantive Due Process emerges from this environment, as does the far less controversial Judicial Review (from Marbury v Madison).
Also, FWIW, there's a common misconception (even among lawyers) that the Civil Law is somehow more closely related to Roman Law than the Common Law. That's not really true. Roman Law actually had judge-made law and something like stare decisis, though the technical details were quite different. Emperor Justinian attempted to impose reforms, but these were widely opposed and occurred at the tail end of the Roman Empire. In as much as the Civil Law was based on interpretations of the Justinian Code, that doesn't mean it was reflective of actual Roman Law. And in any event, most of the major distinctions between the Civil Law and Common Law emerged long after misinterpretations of Roman Law had permeated everybody's legal thinking.
> American law didn't inherit such a notion of unlimited legislative authority.
I wonder if this is due to US's structure being that of a constitutional republic rather than a democratic republic. I.e. the Supreme Court (which executes the constitution) must be superior to the legislature.
In fact, the Supreme Court has carved out an exception to judicial review that leave some questions of constitutionality to Congress: https://en.wikipedia.org/wiki/Political_question This is especially relevant given the buzz about impeachment because one would normally think that the definition of "High Crimes and Misdemeanors" is precisely the kind of question our courts were intended to answer.
The U.S. is rather unique in investing constitutional review so thoroughly with the judiciary. Most nations, I believe, either adhere to Parliamentary Supremacy or have a special Constitutional Court even though almost every political system subsequent to the U.S. has a written constitution. Also, U.S. judges have lifetime appointments, whereas most other systems permit the legislature to more easily replace judges (see, e.g. the recent controversy in Poland regarding its Constitutional Tribunal).
The U.S. inherited a very strong normative legal system from Great Britain. The nascent U.S. didn't experience the same turmoil and radicalism as did the French, even though there was a ton of cross-pollination of ideas. Because we had such a strong legal system from the outset I think there was less pressure to put all our eggs into the basket of populist democracy, and were able to leave dormant some difficult questions, both at the state and Federal levels. A few decades later (and culminating in the Civil War) we resolved many of them differently (at least in their technical operation) than Europe did because we had set on our own path so early.
Justice Scalia is often held in esteem for his flavor of Originalism and statutory interpretation, but if you read Scalia's scholarly works he very much believed that U.S. courts (including the Supreme Court) should adhere more closely to a Continental European model, one which circumscribes judicial review to the narrowest possible scope. But that's a normative political philosophy that emerged after the Founding of the U.S. (not to mention on a different continent), which means its absolutely not original in any sense. The 19th century Continental European model clearly emphasizes the supremacy of the legislature as the preeminent democratic institution. But this was not the case in the U.S. Issues of Federalism were of primary concern, and those issues meant that the U.S. was grappling with a more complex definition of "democracy", one that wasn't just about how to allow the population to exercise political autonomy in accordance with moral law[1], but how to allow several distinct populations to exercise and moderate their autonomy in tandem.
[1] Moral law meaning concepts of justice and liberty shaped by Western Christianity (including Greek philosophy and Roman law), the Enlightenment, and the Scientific Revolution.
This type of abuse of the commerce clause should be rolled back to something more sane that reflects the original intent. The courts seem to bend the words of the constitution to increase central authority. Our freedoms suffer as a consequence in my opinion.
And this view was again reinforced in Morrision. Congress tried to use the Commerce clause to criminalize rape against women. The Court held that even though violence against women surely has some effect on the economy, that is very far from substantial. Even if viewed in the aggregate.
Our freedoms suffer some, sure, but the wheat (and other) market(s) got saner, which helped a lot of people, greatly expanding their freedoms. (On the other hand Wickard is used to regulate medical marijuana, which takes away some freedom.) But, but... it also allowed (and would allow) fixing healthcare, which was (would be) a big freedom improvent.
Do tautologic conclusions make legitimate precedents? Dang...
The heathcare system is another example of this. Emergency rooms in Texas are useless to people in Florida.
Sure, if the ACA would regulate non-economic aspects of ER visits, those parts would have been likely struck down. (Unless otherwise authorized by the Constitution.)
https://motherboard.vice.com/en_us/article/kzkx83/which-stat...
https://www.nytimes.com/2018/04/05/us/politics/trump-califor...
So in this regard, desparaging california’s policies is completely fair. So would bashing on say, Kansas. But calling California the home of “libtards” or calling Kansas full of rednecks would not be fair.
Republicans have been trashing Hollywood and San Francisco/Berkeley for a long time, though.
It places the individual's need, which are only incidental due to their current residence above the community's need. Whereas liberal-ish things tend to require something from every member of the community. (Less gun right, mandatory health insurance, more spending on refugees and unlucky folks, etc.)
But only American citizens can vote. And I can't seem to find any data on the increase of the California population from naturalized citizens.
Prior to 65 immigration act, California was over 90% white.
By 2010, non-hispanic white was down to %40, hispanic ~%37%.
That is a huge demographic change. Hispanics nationally vote for Democratic/liberal politicians on avg. 70%.
So.. ergo, the dramatic blue turn California has taken politically can be accounted for by drastic change in demographics.
Your first statement is just restating the same premise: a dramatic change of the makeup of the electorate (whatever their "needs" or preferred political policies) changed the outcome of elections.
https://en.wikipedia.org/wiki/Demographics_of_California
section: "Population of California according to racial/ethnic group 1960–2010"
Californians are second class citizens. And when they try to exercise their state rights the Republicans are quick to stop them.
https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
A ruling on Cali's law in the 9th would impact WA as well.
Isn't this the same thing as regulating car emissions? Doesn't 822 only apply to providers in the state itself? Wouldn't it be that the telecoms are welcome to engage in another method of end-customer billing in other states?
What am I missing?
But we shall see what the courts find.
The interstate effect could be due to different services available on the network. So due to the lack of throttling the bundles that the ISPs like to sell wouldn't work, because you could easily buy Netflix or any other non local content.
And out of state grocery stores don't go to you, even though you can go to them online nowadays. (And in that sense they advertise to you from out of state.)
So, just as you can pick a barber/hairdresser because it can show you the newest trends from other barbers from out of state, you still do the transaction locally, even if the whole hair-onomy might be global.
That said, this is a complex multifaceted problem. (Otherwise everyone would have understood it well by now, even Pai, and everyone would be on the same side, etc. Just as water is wet, the Earth is round, vaccines have amazing cost-benefit ratio, the climate is changing, and emission reduction is the right response, and so on. Ha-ha.) And ultimately we can reason however we want, it's up to some judges to figure this out.
If there were a federal law regulating ISPs, and the whole telecom market, and they were challenged based on lack of constitutional authorization, it'd probably get dismissed fast. (As there are already such laws.) But this is the other way around, and on top of that this is a set of regulations that don't clash with the federal ones, they are merely stricter. (And I'm completely out of my depth about the question of whether the FCC could write rules that'd give rights to ISPs that states can't abridge - or only Congress could do that. But I suspect it can, but only if the regulation has a substantial difference in interstate commerce --- which is the question, is there even an interstate ISP market, and I guess that there isn't.)
My understanding is that federal law gives states the option of either following the EPA rules or the CARB rules.
See, e.g, https://www.law.cornell.edu/uscode/text/42/7416
and
https://www.law.cornell.edu/uscode/text/42/7402
and
The post you are responding to explains that the specific type of legislation that the parent is asking about was explicitly identified in federal law as allowable.
I think you're right, the motives are very similar.
> Attorney General Jeff Sessions said that California’s net neutrality law was illegal because Congress granted the federal government, through the F.C.C., the sole authority to create rules for broadband internet providers. “States do not regulate interstate commerce — the federal government does,” Mr. Sessions said in a statement.
I thought Republicans were pro-states rights and limited government? How does their position on this jive with their ideology?
Your statement is so broad as to be effectively meaningless. Sun rises in the east. So what?
The difference is that the GP is beholden completely to its corporate masters and does not hesitate in engaging in lies, false propaganda and bad faith politics to achieve its goals. All of which are corrupt and very anti-democratic.
There are plenty of other contributors, both direct and indirect. PACs, billionaires, unions, earned media, Russians, grandmas, etc.
So after all that, he got no Republican votes. Even thought the plan was, at it's base, a conservative plan. He was naive.
Yes, the world sucks. But there's great stuff too.
Working towards a better future is my coping mechanism.
I encourage everyone to volunteer somewhere that helps restore your faith in humanity. Finding those people, those groups can be a challenge. (Most do gooders are also tedious to be around.)
I used to volunteer as a tree hugger. Now I'm very politically active. I somehow fell in with great people doing great things. Their friendships and the shared effort is what keeps me going.
Unbelievably, I'm now super optimistic. Yes, the challenges are terrifying, I'm not in denial. But I also believe the opportunities are insurmountable. [ h/t Yogi Bera :) ]
Both sides twist the issue to their advantage. Rights for me, not for thee.
Does the federal government have the enumerated right under the Commerce Clause to, for example, ban football for anyone that doesn't have a disability? No!
Was the Commerce Clause sufficient authorization for Federal prohibition of alcohol? No! An Amendment to the Constitution was necessary. And, Federal Alcohol and the unequal necessary State Alcohol prohibitions miserably failed to achieve the intended outcomes.
Where is the limit? How can they claim to support a states' rights, limited government position while expanding jurisdiction under the Interstate Commerce Clause? "Substantially affecting" interstate commerce is a very slippery slope.
Furthermore, de-classification from Title II did effectively - as the current administration's FCC very clearly argued (in favor of special interests over those of the majority) - relieve the FCC of authority to regulate ISPs: they claimed that it's FTC's job and now they're claiming it's their job.
Without Title II classification, FCC has no authority to preempt state net neutrality regulation. California and Washington have the right to regulate ISPs within their respective states.
Outrageous!
Limited government: https://en.wikipedia.org/wiki/Limited_government
States' rights: https://en.wikipedia.org/wiki/States%27_rights
[Interstate] Commerce Clause: https://en.wikipedia.org/wiki/Commerce_Clause
Net neutrality in the United States > Repeal of net neutrality policy: https://en.m.wikipedia.org/wiki/Net_neutrality_in_the_United...
Car emissions and ISPs are different. As ISPs are very much perfect examples of truly local things (they need to reach your devices with EM signals either via cables or air radio), the Federal government might try to argue that the net neutrality regulation of California affects the whole economy substantially, because it allows too much interstate competition due to the lack of bundling/throttling by ISPs.
Similarly, the problem with car emissions might be that requiring thing at the time of sale affects what kind of cars are sold to CA.
Is the Commerce Clause too vague? Yes. Is there a quick and sane way to fix it? I see none. Is it at least applied consistently? Well, sort of. But we shall see.
Even if it is provided by corporations from out of state.
The Internet is the very opposite of local, yes. But the last mile connection, the way your packets get to the nearest IXP is local. And that's where the oligopoly and thus the throttling happens.
[1] https://news.ycombinator.com/item?id=18111651
In my opinion, the court has significantly erred in redefining interstate commerce to include (1) intrastate-only-commerce; and (2) non-commerce (i.e. locally grown and unsold wheat)
Furthermore - and this is a bit off topic - unalienable natural rights (Equality, Life, Liberty, and pursuit of Happiness) are of higher precedence. I mention this because this is yet another case where the court will be interpreting the boundary between State and Federal rights; and it's very clear that the founders intended for the powers of the federal government to be limited -- certainly not something that the Commerce Clause should be interpreted to supersede.
What penalties and civil fines are appropriate for States or executive branch departments that violate the Constitution; for failure to uphold Oaths to uphold the Constitution?
Is it okay if a State opts to withdraw from the interstate market for wheat? Because without power to meddle with intra-state production, consumption and transactions, it's entirely possible.
Why is DoJ sending messages on behalf of the carriers? Because the current administration has demonstrated it will do anything they're paid to do.
Doesn't the DoJ have enough on its plate? Like what? The purpose of the DoJ is /ostensibly/ to protect people from abuses by people who have more money/resources than them. Including the police. The GOP/WH has demonstrated that human rights are low priority compared to most other things (especially those that can pay them).
The answer for that of course is that banks especially pay every representative, regardless of party.
The way would have been through Congress, SEC, FTC and the other relevant bodies.
The DoJ did pursue investigations against banks, but ... guess what, they were very likely compliant with criminal law, thus there was not much to stand on, and you are right, that it's a joke, because despite this, the DoJ managed to secure billions on Deferred Prosecution Agreements.
Do I weep for poor banks? Fuck no, but I hate the arbitrariness of this "justice".
No, this was no justice - as everyone rightly feels, but the DoJ was not in the position to make things right, Congress was. They could have mandated simpler, safer, cheaper banking for everyone, they could have taxed the irresponsible lenders and borrowers, they could have empowered the SEC to be able to proactively act, but no, they did only regulate a few investment banking things (and created a new consumer protection bureau, that is being gutted by the current administration).
Furthermore, the lack of criminal convictions is of course a problem, but just that would not be enough to disincentivize fraud and other criminal behavior, like money laundering. Both (as in personal responsibility for branch managers and hefty fines for the whole corporation) are needed to keep things in check. And the DoJ does not go after persons, most likely because the enormous interference from the whole war on x, from the ATF, DEA, DoD, etc. at the affected regions.
https://www.sacbee.com/news/politics-government/capitol-aler...
https://www.justice.gov/opa/press-release/file/1097306/downl...
I think this should be the key takeaway: it shouldn't be us vs them. Decent people exist on both sides, but they don't seem to run the show on either side :-/
States' rights do not apply in the opposite case when a fedral rule is made and the states don't want to enforce it or have a law that contradicts it. Their laws can't undermine the fedral law.
Hope that's helpful for your understanding of why this is different to the normal "states' rights" argument which is invoked when a state wants to avoid fedral rules.
They happily do not include science in their political calculus.
No, they don't, and the ones that were once prone to had all become Republicans in the realignment beginning in 1964 that was largely complete by the 1990s.
Democrats might argue Constitutional limits on the power of the federal government, but “state’s rights” has been attached to a very specific ideology since before the Civil War.
I don't have any eggs in this game, so I maybe should have added : politics on both sides are primarly shape shifters and adapt their positions to their relative powers and current objectives. I only think that at one point both sides should take their responsabilities and own their previous positions, accountability is the only way to move forward imo.
We can certainly have each state have their own laws as to the terms on which internet service can be sold to consumers.
> We'd have the nightmare of dealing with gazillions of jurisdictions.
Which is true of consumer sales of many goods and services.