Supreme Court Nominee Brett Kavanaugh Opposes Net Neutrality (arstechnica.com)

Beardydog writes: An article currently on Ars Technica examines comments about net neutrality issues by recent Supreme Court nominee Brett Kavanaugh. Kavanaugh not only rejects the FCC's reclassification of ISPs under Title II, but seems to also support a broad First Amendment right to "editorial control," allowing ISPs to selectively block, filter, or modify transmitted data.

Kavanaugh compares ISPs to cable TV operators, rather than phone companies. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes." Here's what Ars Technica had to say about Kavanaugh's argument, which did not address the business differences between cable TV and internet service: "Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth. At least for now, major internet providers don't offer a set package of websites -- they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to 'transmit' them, but ISPs have argued that they should be able to demand fees from websites."

The report also mentions Kavanaugh's support of NSA surveillance: "In November 2015, Kavanaugh was part of a unanimous decision when the DC Circuit denied a petition to rehear a challenge to the NSA's bulk collection of telephone metadata. Kavanaugh was the only judge to issue a written statement, which said that '[t]he Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment.' Even if this form of surveillance constituted a search, it wouldn't be an 'unreasonable' search and therefore it would be legal, Kavanaugh also wrote."

Comments

the real problem

[phantomfive]

The real problem is that there are only one or two internet providers in many places, and network neutrality is only one symptom of that problem. You also have price gouging, slow speeds, etc. The solution is to allow competition, and there are places in America where internet is perfectly fine, but not in Silicon Valley.

Bad Argument

[SuperKendall]

Most definitely not true in the case of the US supreme court, which is wildly corrupt, making interpretation of law based upon what they believed,

That was partly true with Kennedy as a swing vote.

Your argument falls apart completely with Kavanaugh who is a real stickler when it comes to judging based on what the law says. He has sided for and against the government in many cases where each time he was making a ruling based on law, now on what he might "believe".

Between Gorsuch and Kavanaugh it really is the case that the laws that are written will matter and not just be tossed aside at the drop of a hat because an SC justice has the feels.

That's what Judge Kavanaugh said

[raymorris]

That's along the lines of what Judge Kavanaugh said in his dissent. He wrote that the rules would have been okay if the applied to ISPs with significant market share in a particular area. The government has a legitimate interest in regulating a monopoly or duopoly or monopoly, sufficient to override the rights of businesses and customers to decide they want a "kid friendly" Internet service or whatever. As written, the rules applied to ALL ISPs, no matter what market power they had, so it was illegal to operate a kid friendly service. Fixing that would have saved the Net Neutrality rules from a 1st amendment challenge, he thought.

The other issue he pointed out is that Congress, who has the sole power to write laws, gave the FCC authority to implement a specific law covering the phone company. The FCC was to handle the details of enforcing the law that Congress wrote. Nowhere did Congress give the FCC authority to unilaterally create net neutrality.

According to Kavanaugh, here's how the Constitution provides for laws, including those related to net neutrality, to be passed:

Congress passes a law saying which principles of net neutrality should be legally required.

Congress identifies which agency they are empowering to enforce that law (FTC? FCC?).

Laws and regulations balance your rights with government interests. More burdensome regulations can be applied to ISPs with over 25% of given market or whatever.
This balances your first amendment right to provide a low-cost service designed for text rather than video, or a kid-safe service, or whatever with the government's interest in regulating businesses that aren't effectively regulated by the free market.

Re:I should add

[Anonymous Coward]

Then you should be thrilled Obamacare is going to be repealed. Obamacare is responsible for skyrocketing costs and a massive shrinking of services. Hospitals have been forced to close under Obamacare and prices have increased something like 10,000% since it went into effect.

Repealing Obamacare will bring prices back into control, greatly reduce drug costs, and improve the quality of care all around. It's a good thing. You should be for it.

Minnesota law review

[GrimSavant]

This has been making the rounds almost immediately after the announcement, though I haven't seen it here, is a Minnesota Law Review article written by Kavanaugh in 2009. In it he argues that the President should be protected from criminal investigations and prosecutions in addition to civil litigation. Here are some of the key exerts:

Congress should consider doing the same, moreover, with respect to criminal investigations and prosecutions of the President. In particular, Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.” 31 The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.
Even the lesser burdens of a criminal investigation— including preparing for questioning by criminal investigators— are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.

This seems like it is at the central concern for why Trump chose Kavanaugh in particular, and they haven't denied that they considered Kavanaugh's opinion that the President should be protected from legal inquiry of various kinds. The policy issues around him, including net neutrality, may serve to polarize opinion and political support and opposition, but this seems to be a major overriding issue beyond those given the reality that Trump is the subject of a federal criminal investigation by the special prosecutor, and the questions as to his powers to resist or even eliminate the probe are ripening.

For example, the question as to whether Trump can refuse to answer a subpoena have been regularly raised, including by his own lawyers, which seemed like they would be settled law given that Nixon was forced to relinquish his incriminating tapes under a subpoena. However, a different SCOTUS could overturn such precedent if they so fancy, they have done so before (including recently) despite the invocation of principles such as stare decisis. This is also why the reply that this law review article is advocating congressional action to protect the president is not as convincing as it may seem, since it taking the standpoint of what should be done in response to the law as it existed. When in the position of a justice of the supreme court with a little bit of the so called "judicial activism", the law could be revised if Kavanaugh could find enough like minded fellows to go along with him.

Or more likely, they could make precedent in the unexplored and unsettled areas of law that have a maximalist view of presidential powers, which seems likely given Kavanaugh's background. Ironic given Kavanaugh's role in the Starr investigation and report that led to the impeachment of Bill Clinton.

Re:You misspelled "politicians"

[serviscope_minor]

case in point

PigHogger said:

We all know that Republicans are totally retarded and clueless when it comes to technology

SuperKendall replied:

If you want to look at mastery of using Technology anyone would have to admit Trump comes out vastly on top

That pretty much proves the OP's point. You, an avowed republican, seem to believe that number of likes/followers on twitter somehow equates to understanding tech.

Re:Fake Post

[LynnwoodRooster]

Nixon wasn't impeached.

Re: Judges, not legislators

[DaFallus]

Another Anonymous Coward incredulously demanded:

50%?!? You are telling me it is too difficult and not enough to go around to provide more than 1 out of every 2 individuals a second ISP... in the US?!?

Actually, that's pretty much exactly the case. There are still a fair number of U.S. residents who live out in the boonies, where the cost-per-mile for pole space is high and the customer density is low.

At some point, it doesn't pencil out, so you take advantage of government handouts and subsidies to expand your network and then pocket the money and stop building out your network, and folks who live beyond the edge are reduced to crap like satellite internet or cellular data for broadband.

FTFY

Unless they are big ISPs, he wrote

[raymorris]

He wrote that you have a right to buy or sell a kid-safe internet service, or whatever kind of service you want, UNLESS the ISP in question is a major player in a particular market.

If there are one or two or three big ISPs in a city, the government has sufficient interest in regulating those more strictly than a start-up alternative. He wrote that the rules would have passed first amendment muster if they had applied to ISPs with significant market share, say 25%. "Market power", he wrote, the ability to make decisions that customers don't like, but there isn't much that customers can do about it. If customers can't easily choose a different service, then government can step in, he thought.

Under the NN rules, if you live in a city with Comcast and CenturyLink, it would be illegal for you to offer a kid-safe internet service. Kavanaugh said that went to far. The NN requirements are only justified for ISPs with market power , the monopolies and duopolies, unless the government shows some reason it should be illegal for a small company to offer a $5 educational internet plan that doesn't stream HD video.