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Activist Post: Why the FCC Can’t Actually Save Net Neutrality

Activist Post: Why the FCC Can’t Actually Save Net Neutrality.

April Glaser

Network neutrality—the idea that Internet service providers (ISPs) should treat all data that travels over their networks equally—is a principle that EFF strongly supports. However, the power to enforce equal treatment on the Internet can easily become the power to control the Internet in less beneficent ways. Some people have condemned last week’s court decision to reject the bulk of the Federal Communications Commission’s (FCC) Open Internet Order as a threat to Internet innovation and openness. Others hailed it as a victory against dangerous government regulation of the Internet. Paradoxically, there is a lot of truth to both of these claims.

Violations of network neutrality are a real and serious problem: in recent years we have seen dozens of ISPs in the U.S. and around the world interfere with and discriminate against traffic on their networks in ways that threaten the innovative fabric of the Internet.

At the same time, we’ve long doubted that the FCC had the authority to issue the Open Internet rules in the first place, and we worried that the rules would lead to the FCC gaining broad control over the Internet. The FCC in particular has a poor track record of regulating our communications services. We are not confident that Internet users can trust the FCC, or any government agency, with open-ended regulatory authority of the Internet.
Look at what happened with radio and television. Though it’s charged to regulate our media landscape in the best interest of the public, the FCC opened the doors to unforeseen levels of media consolidation. That consolidation has contributed to the gutting of newsrooms and a steep decline in diversity of viewpoints and local voices on the air, as independent broadcasters across the country shut down, unable to compete with big media monopolies. One of the best protections for the open Internet is probably more competition among ISPs, but the FCC’s history doesn’t leave us hopeful that it is the right entity to help create and defend a competitive Internet marketplace.

And the FCC sometimes makes rules that narrow our freedom to communicate and innovate, like the Broadcast Flag Rule—the bit of DRM that broadcasters wanted to use to prevent the home recording of television—which EFF fought so hard to defeat in 2007.

So while we are hesitant to task any government agency with the job of regulating the Internet, we aren’t thrilled about giving that power to the FCC.

The many faces of network discrimination

However this plays out, we think it’s important that the public understands what network discrimination actually looks like. The recent debate about network neutrality has involved a lot of speculation and “what-if” hypotheticals. This is strange because we have a clear, documented history of the kinds of non-neutral, discriminatory practices that ISPs have actually deployed in recent years. Here are a few ways ISPs have throttled or blocked content in the past. We stand firm in our opposition to this kind of behavior:

  • Packet forgery: in 2007 Comcast was caught interfering with their customers’ use of BitTorrent and other peer-to-peer file sharing;
  • Discriminatory traffic shaping that prioritizes some protocols over others: a Canadian ISPslowed down all encrypted file transfers for five years;
  • Prohibitions on tethering: the FCC fined Verizon for charging consumers for using their phone as a mobile hotspot;
  • Overreaching clauses in ISP terms of service, such as prohibitions on sharing your home Wi-Fi network;
  • Hindering innovation with “fast lane” discrimination that allows wireless customers without data plans to access certain sites but not the whole Internet;
  • Hijacking and interference with DNS, search engines, HTTP transmission, and other basic Internet functionality to inject ads and raise revenue from affiliate marketing schemes, from companies like Paxfire, FairEagle, and others.

Individually and collectively, these practices pose a dire threat to the engine of innovation that has allowed hackers, startup companies, and kids in their college dorm rooms to make the Internet that we know and love today.

How can we prevent these practices and ensure neutrality over our networks? The FCC tried, and while the agency was somewhat successful in putting the brakes on the kind of network discrimination ISPs would rather see[1], the FCC used poor legal reasoning to enact weak rules.

What was wrong with the FCC’s network neutrality approach

The Open Internet rules of 2010 that were rejected by the court last week were deeply flawed and confirmed our fears about heavy-handed Internet regulation. The FCC initially claimed that it had“ancillary” authority under the 1996 Telecommunications Act to enact the Open Internet rules. That means that although the FCC did not have explicit authority from Congress to issue network neutrality rules, especially after classifying Internet service as an “information service” and not a telephone-like “common carrier” in 2002, they still professed a broad authority to regulate the Internet.

That claim of ancillary jurisdiction, if accepted, would have given the FCC pretty much boundless clearance to regulate the Internet, and to claim other ancillary powers in the future. Even if you happen to like the FCC’s current goals, who’s to say we will still like whatever goals the agency has next year and the year after that?

We had serious issues with the initial Open Internet Order, as we explained in our comments to the FCC. For one, the Order allowed ISPs free rein to discriminate as long as it was part of “reasonable efforts to… address copyright infringement.” This broad language could lead to more bogus copyright policing from the ISPs. We’ve already seen companies use inaccurate filters to blocknon-infringing fair use content online, a practice we continue to fight.

The FCC’s rules also had troubling exceptions for law enforcement, permitting ISPs to engage in voluntary, non-neutral network management practices to fulfill any law enforcement requests. We opposed this exception when the rules were being considered, but the FCC did not adopt our recommendations. And by now we all know how overbroad law enforcement exceptions to gather user data can be. If you have any doubt, pick up a newspaper and read about how the U.S. government unconstitutionally collaborates with Internet companies for law enforcement purposes.

There are no easy solutions
In light of these threats it is tempting to reach for easy solutions. But handing the problem to a government agency with strong industry ties and poor mechanisms for public accountability to fix the very real problem of network neutrality is unsatisfying. There’s a real danger that we would just be creating more problems than we’d solve.
One alternative that would go a long way would be to foster a genuinely competitive market for Internet access. If subscribers and customers had adequate information about their options and could vote with their feet, ISPs would have strong incentives to treat all netowrk traffic fairly. The court agreed with us on this point:

“a broadband provider like Comcast would be unable to threaten Netflix that it would slow Netflix traffic if all Comcast subscribers would then immediately switch to a competing broadband provider.”

Another scenario would be for Congress to step in and pass network neutrality legislation that outlines what the ISPs are not allowed to do. But fighting giant mega-corporations like AT&T and Verizon (and their army of lobbyists) in Congress promises to be a tough battle.

Yet another option: empower subscribers to not just test their ISP but challenge it in court if they detect harmful non-neutral practices. That gives all of us the chance to be watchdogs of the public interest but it, too, is likely to face powerful ISP opposition.

These are not the only options. Internet users should be wary of any suggestion that there is an easy path to network neutrality. It’s a hard problem, and building solutions to resolve it is going to remain challenging. But here is one guiding principle: any effort to defend net neutrality should use the lightest touch possible, encourage a competitive marketplace, and focus on preventing discriminatory conduct by ISPs, rather than issuing broad mandatory obligations that are vulnerable to perverse consequences and likely to be outdated as soon as they take effect.

EFF is watching this issue closely, and we’ll continue to share our thoughts on how best to defend the free and open Internet on which we all depend.

When Net Neutrality Becomes Programmed Censorship Washington’s Blog

When Net Neutrality Becomes Programmed Censorship Washington’s Blog.

Guest Post By Sartre, BATR.

The worst fears of all free speech proponents are upon us. The Verizon suit against the Federal Communications Commission, appellate decision sets the stage for a Supreme Court review. The Wall Street Journal portrays the ruling in financial terms: “A federal court has tossed out the FCC’s “open internet” rules, and now internet service providers are free to charge companies like Google and Netflixhigher fees to deliver content faster.”

In essence, this is the corporate spin that the decision is about the future cost for being connected.

“The ruling was a blow to the Obama administration, which has pushed the idea of “net neutrality.” And it sharpened the struggle by the nation’s big entertainment and telecommunications companies to shape the regulation of broadband, now a vital pipeline for tens of millions of Americans to view video and other media.

For consumers, the ruling could usher in an era of tiered Internet service, in which they get some content at full speed while other websites appear slower because their owners chose not to pay up.

“It takes the Internet into completely uncharted territory,” said Tim Wu, a Columbia University law professor who coined the term net neutrality.”

What the Journal is not telling you is that this “uncharted territory” is easy to project. If ISP’s will be able to charge varied rates or decide to vary internet speed, it is a very short step towards selectively discriminate against sites based upon content. Do not get lulled into thinking that constitutional protective political speech is guaranteed.

Once again, the world according to the communication giants paint a very different interpretation as the article, Verizon called hypocritical for equating net neutrality to censorship illustrates.

“Verizon’s argument that network neutrality regulations violated the firm’s First Amendment rights. In Verizon’s view, slowing or blocking packets on a broadband network is little different from a newspaper editor choosing which articles to publish, and should enjoy the same constitutional protection.”

The response from advocates of the Net Neutrality standard, that is about to vanish, sums up correctly.

“The First Amendment does not apply, however, when Verizon is merely transmitting the content of third parties. Moreover, these groups point out, Verizon itself has disclaimed responsibility for its users’ content when it was convenient to do so, making its free speech arguments ring hollow.”

Prepare for the worst. The video, Prepare To Be Robbed. Net Neutrality Is Dead!, which includes frank language and expletives, provides details that place the use of internet access into question coming out of this appellate decision.

Analyze the implications logically. It is one thing to charge a for profit service like Netflix a higher fee to transverse the electronic bandwidth of a communication network. Selling a membership to an end user is the source of their cash flow. However, most activist political sites usually provide internet users free access to their particular viewpoint and source links.

Your internet service provider controls the pipeline that feeds your devices and data connection. No matter which company you pay for this service, you are dependent upon this union. A free WiFi link may well become a memory. Beaming a satellite signal, mostly is an alternative, when DSL, cable or other broadband is not available.

No matter what method is used to surf the net, this decision clearly implies that internet access is now a privilege, at the effective discretion, if not mercy; of a provider that allow an account for service.

Next, consider the implication that search engines will use this decision to re-work their algorithms lowering their spider bots selection of sites that challenge the “PC” culture. Restrictive categorization used for years by Google, Yahoo and Bing can use this decision as cover to purge dissenting sites even more from their result rankings.

It is common knowledge that YouTube censors and targets certain uploads. One particular subject that experiences technical glitches is Fukushima. The video You Tube Censoring Truther Channels explains the drill. Add to the frustration are the ads, especially the ones with no skip option and imagine future requirements for uploading approval. What is next, a paid subscription to use and upload to the service?

Yes, the Ending Net Neutrality Signals A Digital Paradigm Shift. It also means that they could unfairly push sites like (add the name of your favorite sites) out of the way of users if they (the “PC” protectors) didn’t like them, acting as effective censors.

Stephen Lendman writes in Digital Democracy vs. Corporate Dominance: R.I.P. Internet Neutrality?

“Without Net Neutrality, ISPs will be able to devise new schemes to charge users more for access and services, making it harder for us to communicate online – and easier for companies to censor our speech.”

Corporate gatekeepers will control “where you go and what you see.”

Verizon, AT&T, Comcast and Time Warner Cable “will be able to block content and speech they don’t like, reject apps that compete with their own offerings, and prioritize Web traffic…”

They’ll be able to “reserve the fastest loading speeds for the highest bidders (while) sticking everyone else with the slowest.”

Doing so prohibits free and open communications. Censorship will become policy. Net Neutrality is too important to lose.”

Ready yourself for the inevitable results! According to Michael Hiltzik, Net neutrality is dead. Bow to Comcast and Verizon, your overlords.

“In the U.S., there’s no practical competition. The vast majority of households essentially have a single broadband option, their local cable provider. Verizon and AT&T provide Internet service, too, but for most customers they’re slower than the cable service. Some neighborhoods get telephone fiber services, but Verizon and AT&T have ceased the rollout of their FiOs and U-verse services–if you don’t have it now, you’re not getting it.

Who deserves the blame for this wretched combination of monopolization and profiteering by ever-larger cable and phone companies? The FCC, that’s who. The agency’s dereliction dates back to 2002, when under Chairman Michael Powell it reclassified cable modem services as “information services” rather than “telecommunications services,” eliminating its own authority to regulate them broadly. Powell, by the way, is now the chief lobbyist in Washington for the cable TV industry, so the payoff wasn’t long in coming.”

In a digital environment, access to an internet that provides uncensored content at the lowest costs is a direct threat to the corporate economy. Innovation and creative cutting-edge services are clearly marked as competing challenges to the Amazon jungle of merchandising. The big will just get bigger.

Then the unavoidable effects from the “all the news fit to report” mass medium, intensifies their suppression of honest investigative journalism. Filtering out the alternative and truth media is the prime objective of this ruling. Eliminating political dissent from the internet is the ultimate implication. What would the net be like without access to the Drudge Report?

When the cable or satellite services bundle their programming into a “take it or leave it” format, the choices for the consumer becomes a major financial burden just to watch the few channels that have interest. Applying this pattern to the internet will cause even greater resentment.

Just look at the disaster from the Yahoo retooling. That Ms. “wicked witch” MM have pushed up the stock price, but ask any yahoo group member what they think of the new format. This is a classic example of how to turn off users and ruin your product.

Subscription services are playing with fire. With the collapse of the main street economy, the added fees to access content that is mediocre at best, is the actual fallout. Like the dinosaur TV networks, the corporatist sites risk total rejection from internet visitors.

Totalitarian culturalists are rejoicing with this latest damper on free speech. News by way of government press releases is pure propaganda. How did this happen?

For a short explanation history, Nilay Patel writes in The Wrong Words: How The FCC Lost Neutrality And Could Kill The Internet.

“The FCC tried to appease the out-of-control corporate egos of behemoths like Verizon and Comcast by pretending internet providers were special and classifying them as “information service providers” and not “telecommunications carriers.” The wrong words. Then, once everyone was wearing the nametag they wanted, the FCC tried to impose common carrier-style telecommunications regulations on them anyway.”

Credo Action believes that “FCC Chairman Tom Wheeler can undo the Bush-era decision to deregulate broadband Internet providers and allow them to operate outside of the legal framework that has traditionally applied to companies that offer two-way communication services.”

Such optimism seems naive in light of the real controllers of policy, much the same, for the Supreme Court coming to the rescue. Mark this court decision as the strategic destruction of the internet as a beacon of unfeigned free expression of information and open political speech. The programmers will be working overtime to set up layers of tasks, restrictions and huddlers to jump over. If you think Facebook censorship is bad, get ready for a purely governmental approved net along the Chinese model.

New cyberbullying law has ‘larger agenda,’ expands police powers – Canada – CBC News

New cyberbullying law has ‘larger agenda,’ expands police powers – Canada – CBC News.

Justice Minister Peter MacKay announces the government’s new cyberbullying act on Parliament Hill on Wednesday. (Sean Kilpatrick / Canadian Press)


When Justice Minister Peter MacKay unveiled the federal government’s proposed cyberbullying law on Wednesday, he touted it as a necessary tool to combat the often hurtful spread of intimate images. To emphasize the underlying point, he made the announcement during national Bullying Awareness Week.


But legal experts were left wondering why a piece of legislation that is meant to rein in online tormentors is also taking on terror suspects and people who steal cable TV signals.


“There is a much larger agenda at play here,” says Rob Currie, director of the Law and Technology Institute at Dalhousie University.

Under the banner of anti-cyberbullying measures, the government is “trying to push through a number of things that have to do with law enforcement but nothing to do with cyberbullying.”

Among other things, these new measures include giving police easier access to the metadata that internet service providers and phone companies keep on every call and email.


MacKay has acknowledged that law enforcement did not have the tools to prevent the deaths of Canadian teens such as Rehtaeh Parsons and Amanda Todd, who endured years of torment online. C-13 would give police a greater ability to investigate incidents of cyberbullying by giving courts the right to seize computers, phones and other devices used in an alleged offence.

5 years in prison

Under the proposed legislation, anyone who posts or transmits an “intimate image” of another individual without that person’s consent could face up to five years in prison.

MacKay Cyberbullying 20131018Leah Parsons, mother of the late Rehtaeh Parsons, the Nova Scotia teen who died following a suicide attempt, is greeted by Justice Minister Peter MacKay as they attend a roundtable discussion on cybercrime in Halifax in October. (Andrew Vaughan / Canadian Press)


MacKay said C-13, also known as the Protecting Canadians from Online Crime Act, reflected the government’s commitment “to ensuring that our children are safe from online predators and from online exploitation.”


Since introducing the bill, MacKay has said that C-13 is also meant to update the Criminal Code to reflect modern communications such as email and social media.


Toronto internet lawyer Gil Zvulony says that it is a necessary step, given that some aspects of the Criminal Code pertaining to communications still refer to outmoded technologies such as telegrams.


“I don’t know what the [government’s] motivation is, but there is a logical theme to all of this, in the sense that it’s trying to modernize [the code] for the digital age,” he says.


Currie, however, raises concerns about the breadth of C-13, which not only addresses cyberbullying, but also gives police heightened powers of surveillance to track terror suspects as well as individuals who use computer programs to gain unpaid access to WiFi or cable TV service.


Currie likens the omnibus nature of C-13 to Bill C-30, also known as the Protecting Children from Internet Predators Act, which was introduced in February 2012 by then-public safety minister Vic Toews.


“It was supposed to be all about [fighting] child porn, but it had all kinds of other stuff in it,” Currie says.

The ‘other stuff’

That other “stuff” included lawful access provisions, which would force internet service providers to hand over customer information to police without a warrant. This led to a public outcry and the government’s abandonment of the bill.


Although C-30 was ostensibly killed in 2012, Michael Geist, a cyber-law expert at the University of Ottawa, says that the government has been inconsistent about its position on some of the key issues surrounding lawful access to private communications.


Earlier this year, then justice minister Rob Nicholson pledged that the government “will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30.”

Still, Andrea Slane, a law professor at the University of Ontario Institute of Technology, says C-13 is in many ways “identical” to its failed predecessor — though one of the key differences is that C-13 emphasizes judicial oversight.


For the most part, the new bill still observes “the checks and balances around what judges are meant to do to make sure warrants are issued” where they are supposed to be.


That said, one thing the new bill does is allow ISPs to voluntarily give customer information to police without civil or criminal liability, Slane points out.


“That’s the one that’s most sticky for me,” she says, because it was this kind of legislation that led to widespread surveillance in the U.S.


Geist says C-13 gives police greater access to metadata, which is the information that ISPs and phone companies keep on every call and email, and he adds that in some ways metadata can be more revealing than the substance of a phone call or email.


Metadata will enable police to pinpoint a suspect’s “geographic location. It will tell who they were talking to, it will tell what device they were using,” Geist told CBC.


Currie says that, within C-13, there are proposed amendments to other acts, including the Mutual Legal Assistance in Criminal Matters Act, which allows Canadian police to gather evidence on individuals in Canada because a foreign state has requested it.


Jennifer Stoddart, Canada’s privacy commissioner, has not had a chance to examine the bill. But her office released a statement to CBC saying C-13 “appears to be a complex bill, and we will be examining all of its privacy implications and preparing to provide our full analysis and recommendations before the parliamentary committee that will be studying the legislation.”


Currie acknowledges that the bill strengthens many of the law enforcement tools needed to stem cyberbullying. But he takes issue with the sheer size of the legislation.


“This government has a history of introducing large omnibus bills that have all kinds of stuff in them – unrelated things all under the banner of one legislation,” he says.


“The problem with that is it inhibits democratic debate. There are lots of evidence-gathering tools here that we need to have a debate about.”


With files from Alison Crawford

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PRISM is driving the uptake of privacy services, but there’s no simple solution to beating the NSA|Washington’s Blog

Washington’s Blog. (source)

This article was written by IVPN’s Nick Pearson. IVPN is an online privacy platform, and Electronic Frontier Foundation member, dedicated to protecting online freedoms and online privacy.

While Edward Snowden’s PRISM revelations failed to spark much widespread outrage among the general public, an apparent spike in the uptake of Virtual Private Networks suggests the online privacy market could be entering a golden period. But when commerce is driven by fear there is plenty of opportunity for exploitation and many privacy-concerned citizens may be lulled into a false sense of security over services that won’t protect their data.

In the two months after the NSA’s spying programme was uncovered by the Guardian, IVPN – the Virtual Private Network platform I work for – saw a 56% increase in sign-ups to our platform. Following this spike we decided to run a survey, asking our subscribers what motivated them to sign-up to a VPN. Out of the eight anti-online privacy programmes we listed (ranging from SOPA to the Patriot Act) PRISM came top by a clear margin, with a 28% share of the vote. These findings werebacked-up from a number of other VPNs, who  said they’ve also seen an increase in interest since the revelations. Not to mention the much publicized numbers released by privacy-orientated search engine DuckDuckGo, which reported a 50% traffic increase in the wake of PRISM.

The fact internet users are becoming more privacy-conscious is certainly encouraging, but readers who are technically minded may have already spotted a slight problem with the above findings: VPNs won’t protect you from the type of surveillance detailed in Snowden’s leaked documents.

PRISM involved creating backdoors into major online services, allowing the NSA to monitor the content of emails and other communications. VPNs will prevent evesdroppers from knowing where you’re located and the contents of your traffic. But they won’t prevent someone accessing Google’s or Facebook’s servers, where your personal information is stored.

But the problem goes deeper than this. Some VPNs have been disingenuously cashing in on privacy fears before the emergence of PRISM –  and are continuing to do so. To understand how, you need to understand how VPNs protect your privacy beyond that of an ISP. The vast majority of ISPs operate a data retention policy of some kind. This means they store information on users, such as your IP address (which uniquely identifies you) and web logs (which record every website you’ve visited). In Europedata retention is mandated and there are some in Washington who want to take the same route. But even though it’s not written into law, we know US ISPs retain data anyway, in order to cooperate with law enforcement investigations.

VPN privacy-services supposedly offer protection from this data retention, by keeping logs for no more than a few days (or in some cases a few minutes). If there’s no data stored then it’s impossible for a VPN to cooperate with law enforcement requests to access it. Many VPN customers sign-up because they assume this is the case. But it’s frequently not. In fact, some VPNs have even worse data retention policies than ISPs. For instance HideMyAss, which is perhaps the most popular VPN on the market,retains data for two years, and this was only acknowledged after the company handed a hacker over to the FBI.

Despite PRISM being met with some cynicism by the population, the rising interest in privacy tools suggests the wider community is not quite as apathetic toward privacy as we may think. But at the same time we should not fall into the trap of believing there is a magic bullet to solve the problem of overzealous government surveillance. Even widely used, open source, tools such as TOR have their vulnerabilities. The best tools in the fight to reclaim our online freedoms are education and the support of activist organisations – such as the Electronic Frontier Foundation – in order to continue to pressure our political system and keep the issue on its agenda.


Are Governments Getting Trigger-Happy with the Internet Kill Switch? | Motherboard

Are Governments Getting Trigger-Happy with the Internet Kill Switch? | Motherboard.


NSA Admits It “Acquires” Your Internet Data From These Redacted Internet Service Providers | Zero Hedge

NSA Admits It “Acquires” Your Internet Data From These Redacted Internet Service Providers | Zero Hedge.


TekSavvy File-Sharing Lawsuit: Voltage Pictures Will Likely Get Their Way In Court, Observers Predict

TekSavvy File-Sharing Lawsuit: Voltage Pictures Will Likely Get Their Way In Court, Observers Predict.


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