You Don't Want the FCC to Regulate the Internet

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Corynne McSherry

Is Net Neutrality a FCC Trojan Horse?

On Thursday, Federal Communications Commission (FCC) Chairman Julius Genachowski is expected to unveil draft rules aimed at imposing network neutrality obligations on Internet Service Providers (ISPs). In the excitement surrounding the announcement, however, many have overlooked the fact that the this rulemaking is built on a shoddy and dangerous foundation – the idea that the FCC has unlimited authority to regulate the Internet.

Genachowski has announced that the draft regulations will require ISPs to abide by the "Four Freedoms" set forth in the FCC's 2005 Internet Policy Statement, as well as the additional principles of nondiscrimination and transparency. EFF strongly believes in these six principles. Our work speaks for itself: we are developing software tools to Test Your ISP in the wake of uncovering Comcast’s meddling with BitTorrent traffic, seeking a DMCA exemption to let you run applications of your choice on your mobile phone, and fighting Hollywood’s efforts to force DRM restrictions into your television.

But 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, we expect the FCC will rely on its "ancillary jurisdiction," a position that amounts to “we can regulate the Internet however we like without waiting for Congress to act.” (See, e.g., the FCC's brief to a court earlier this year). That’s a power grab that would leave the Internet subject to the regulatory whims of the FCC long after Chairman Genachowski leaves his post.

Hence the danger. If “ancillary jurisdiction” is enough for net neutrality regulations (something we might like) today, it could just as easily be invoked tomorrow for any other Internet regulation that the FCC dreams up (including things we won’t like). For example, it doesn't take much imagination to envision a future FCC "Internet Decency Statement." After all, outgoing FCC Chairman Martin was a crusader against "indecency" on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it's also too easy to imagine an FCC "Internet Lawful Use Policy," created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance. After all, it was only thanks to a jurisdictional challenge -- ironically, by many of the same groups currently celebrating Genachowski's rulemaking announcement -- that we defeated the FCC's "broadcast flag" mandate which would have given Hollywood and federal bureaucrats veto power over innovative devices and legitimate uses of recorded TV programming.

EFF's concerns are born from more than just a general skepticism about government regulation of the Internet. Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T.

Fortunately, there are two opportunities to reign in the FCC’s expansive views of its own “ancillary jurisdiction.” A federal court is considering this important question as part of Comcast's challenge to the FCC's order last year regarding interference with BitTorrent traffic (PFF filed a strong amicus brief in the case, arguing against the FCC's power grab). Or Congress could limit the FCC's power by authorizing to regulate only to ensure network neutrality.

So while we look forward to evaluating Chairman Genachowski’s proposed net neutrality regulations, the first step must be a clear rejection of any suggestion that those regulations can be based on “ancillary jurisdiction.” Otherwise, "net neutrality" might very well come to be remembered as the Trojan Horse that allowed the FCC take over the Internet.

Cyber Attack May Be Excuse To Freeze or Confiscate Bank Accounts, IRA, 401k

We are going to wake up one morning and Matt Lauer will inform us that are bank accounts are empty, all stock is worthless, and there is nothing in your 401K or IRA. That's the chilling futuristic scenario painted by Roy F. Grieder at fourwinds10.com. "None of our 'leaders' in D.C. will want to take the blame for this, says Grieder, "and will need an excuse for this. Most people will understand and even forgive how this happened when Matt goes on to say:

"...What I have told you is the direct result of a computer virus that has infected the worldwide financial complex that completely melted the balance sheets so that no one knows who owes what to whom anymore....Details on the new government monetary system will come out shortly."

Grieder's vision makes today's AP report that much more alarming:

"The Treasury Department, Secret Service, Federal Trade Commission and Transportation Department Web sites were all down at varying points over the holiday weekend and into this week, according to officials inside and outside the government. Some of the sites were still experiencing problems Tuesday evening. Web sites of major South Korean government agencies, banks and Internet sites also were paralyzed in a suspected cyber attack Tuesday. An initial investigation found that many personal computers were infected with a virus ordering them to visit major official Web sites in South Korea and the U.S. at the same time, Korea Information Security Agency official Shin Hwa-su said."

The cyber attack is described as an "unusually resilient computer attack that began July 4", just one day before Reuters columnist Matthew Goldstein broke the story regarding a Goldman Sachs former employee arrested by the FBI on federal charges for stealing software codes to Goldman's automated stock and commodities trading business. Aleynikov apparently encrypted and uploaded the software to a website in Germany. Assistant U.S. Attorney Joseph Facciponti said: “The bank [GS] has raised the possibility that there is a danger that somebody who knew how to use this program could use it to manipulate markets in unfair ways."

Facciponti told a federal judge that Aleynikov’s alleged theft poses a risk to U.S. markets because Aleynikov transferred the code to a computer server in Germany, and others may have had access to it, and Goldman Sachs may be harmed if the software is disseminated. “The copy in Germany is still out there," said Facciponti, "and we at this time do not know who else has access to it. Once it is out there, anybody will be able to use this, and their market share will be adversely affected.”

More from AP:

The South Korean sites included the presidential Blue House, the Defense Ministry, the National Assembly, Shinhan Bank, Korea Exchange Bank and top Internet portal Naver. They went down or had access problems since late Tuesday, said Ahn Jeong-eun, a spokeswoman at the Korea Information Security Agency.

Two government officials acknowledged that the Treasury and Secret Service sites were brought down, and said the agencies were working with their Internet service provider to resolve the problem.

Ben Rushlo, director of Internet technologies at Keynote Systems, called it a "massive outage" and said problems with the Transportation Department site began Saturday and continued until Monday, while the FTC site was down Sunday and Monday.

Keynote Systems is a mobile and Web site monitoring company based in San Mateo, Calif. The company publishes data detailing outages on Web sites, including 40 government sites it watches.

According to Rushlo, the Transportation Web site was "100 percent down" for two days, so that no Internet users could get through to it. The FTC site, meanwhile, started to come back online late Sunday, but even on Tuesday Internet users still were unable to get to the site 70 percent of the time.

"This is very strange. You don't see this," he said. "Having something 100 percent down for a 24-hour-plus period is a pretty significant event."

He added that, "The fact that it lasted for so long and that it was so significant in its ability to bring the site down says something about the site's ability to fend off (an attack) or about the severity of the attack."