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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."
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."
+1 naive
How is dragnet record requests from ISPs and telecom carriers not unreasonable?? Sorry, but I disagree with you. Stupid interpretation can be bad for the freedoms and laws we have enshrined. Because of our stupid two party system, we may not always have the right political climate to fix what was once done. The 4th would never fly if it were being proposed today. Too many blue lives / law and order types who don't see the value of privacy, and can't imagine their freedoms being taken away because "governments never persecute good Christians".
saying so let's them off the hook. They know exactly what they're doing. I just wish the voters would stop calling them names and start calling them out on their pro-corporate, anti-consumer and anti-worker agenda. There just comes a time to call a spade a spade...
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This is exactly what you are seeing here. A judge interpreting what the law (constitution) tries to say about a distributor (ISP). In this case, the judge appears to see the distributor of Internet content to be the one who chooses how that Internet content should appear if consumed through their network. That is a perfectly valid if not disastrously incompatible interpretation of "Internet" as is currently understood by Internet users. We tend to think of the Internet as a thing in and of itself, where this judge appears to think of it as a pool of possible things that an ISP can cherry-pick content from to serve up for you.
Note that supreme court judges are different from regular judges in how their interpretations are made and how they are applied. For one, AFAIK, they do not hear experts, they are the experts.
``OK, so ten out of ten for style, but minus several million for good thinking, yeah?''
/. has a lot of older folks on it, many of them have done quite well for themselves and many are right wing. Many voted for Trump (few seem to want to admit it).
/. has lots of older folks who depend on both those things). His tax cut is causing the treasure to raise interest rates to keep inflation in check driving up prices for things like houses, cars and schools. This supreme court nominee is probably going to overturn Roe v Wade, and let's not forget why we legalized abortion in America. And let's not forget the whole separating kids of asylum seekers thing or the fact that the money trail for all those detention centers leads back to him and his friends. I could go on, and on...
Trump opposed Net Neutrality, supports TPP, has rolled back none of Obama's executive orders on H1-B visas (he could have stopped spouses from working in this country with the stroke of a pen on day 1). He let Carrier and Harley Davidson get away with sending jobs overseas after they both got fat checks from the government for keeping them here. He's cut back the VA and is attacking pre-existing condition coverage (again,
His administration did just allow 3D printed guns. I'll give you that.
I guess what I'm saying is, I get it, he's not Hilary. But Hilary's gone, and Trump's poll numbers don't budge. I know Trump supporters are out there on this forum. I also know they mostly keep to themselves on political issue. But if any are out there willing to raise their voices I want to ask: what, if anything, will make you stop supporting him?
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Well in New Zealand I have access to 26 different ISPs, Fibre goes in next week and I can have 900/400 unlimited, no traffic shaping, no port blocking, ie true net neutrality for US$68 / month.
This is what happens when you keep big business out of government and you have a government by the people for the people.
You guys should try democracy.
https://en.wikipedia.org/wiki/...
In states like Colorado, Utah, Nevada, Arizona, New Mexico and Texas, out side a big city there are typically only one ISP that is it. They charge whatever they want and block everything they feel people should not see. These places have the worst internet and the highest prices. One place I went (to be unnamed) the person was paying $300 a month for 2Mb and sites like Starbucks, Amazon and Walmart were blocked because the ISP board has a issues with these sites so the end-user suffers. Completely out of control. We need to force the ISPs to NOT block anything and provide pricing that is an average nation-wide for same speeds and medium.
Because you as the user have chosen to give away that data to the carrier...
They are not searching data you hold, they are searching data the carrier holds which you have given to them.
So it's not placing an unreasonable burden on you, as the end user.
Wether it's unreasonable for the carrier is another matter.
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+ firm supporter of the 2nd amendment, without which all other amendments become moot
-1: Naive idiot.
Information is power.
Small arms are *not* power.
Certainly the constitution doesn't care about granting the government the right of telling a company what to do, that would be serious overreach. It's really just an interpretation of what it means that the constitution *doesn't* tell us how to think of the Internet.
Does that mean that the Internet is something that only exists as whatever comes out of your end of the cable when you buy a service with a local Internet provider? If so, it makes sense to think of the Internet as a product that is generated by your local ISP, and therefore, they have the full right to decide what it looks like.
But this is not how people today think of the Internet. If you ask people today what the Internet is, they imagine it as a unitary thing that is available to people world-wide, and it looks the same to all people everywhere. The Internet is a space of freedom of access, freedom of information and freedom of expression. It's extremely important to understand that this Internet of freedoms is completely incompatible with the Internet as a service idea. You cannot have a free Internet and at the same time an Internet that is a commercially-selected subset of Internet that works best in the business context of your local cable company.
An Internet-as-a-service is an Internet where the ISP is the socialist government, dictating for you, what the cyber world gets to look like. This is the consequential Kavanaugh Internet: you may think of it as an Internet born from constitutional freedoms, but an Internet born from freedoms is decidedly un-free.
Once we realize that, it's up to us to decide what we want to do. Do we want to throw our hands in the air and see what kind of Internet market forces will create for us (note: it will be different depending on what state you live in)? Or do we want an Internet that mirrors our current perception of an Internet of freedoms? If we want the latter, the only way to get an Internet of freedoms is by writing it into law. Regulation that states exactly what those freedoms are, and tells the gatekeepers that they need to provide us with at-minimum a version of Internet where those freedoms are respected.
A lot of people think it makes no sense that regulation creates freedom, and a lack of regulation creates oppression. But this is precisely how things work in the real world. You cannot be free without legislation that tells you what your freedoms are. What do you think the constitution is? It is the supreme regulation of your personal freedoms. What you need is a constitution of the Internet. This is net neutrality.
Net neutrality is the constitution of the free Internet. And it doesn't exist (and neither do your freedoms) unless we create it.
``OK, so ten out of ten for style, but minus several million for good thinking, yeah?''
The proper course of action is to vote with your wallet and take your business elsewhere. Don't act like you can't; it's a rare case these days where you have no choice of ISP's.
While most of your post is just deranged gibbering, this is actually an outright lie. The vast majority of US homes do not have a choice of ISPs. Of course, it's no surprise that someone whose sig contains whining about "offended feelings" has no interest in facts or reality.
We tend to think of the Internet as a thing in and of itself, where this judge appears to think of it as a pool of possible things that an ISP can cherry-pick content from to serve up for you.
Please find the exact clause and wording in the Constitution where it grants the government the right to tell a private company what it can and cannot distribute to customers voluntarily consuming its services.
If ISPs are common carriers then Title II applies and network neutrality is valid based on existing law. The internet, at its heart is take a packet from arbitrary source to arbitrary definition. That sounds like a common carrier to me. Title II has been around since 1964.
Ultimately it would be nice if the congress people would do their fucking jobs and officially classify it as title II so there is no room for interpretation, but they have not, since they foolishly believe that trusting corporations to do the right thing if we just give them unfettered power works. It doesn't.
Also ISPs have a ton of benefit from public easements and infrastructure to build their crap. That changes the game considerably. You can't blatantly use a public resource purely for enrichment with no consideration for the public good. This also isn't a chance where free market fairy dust fixes everything. A lot of places only have one hard line isp, and many still have none. Here is a link showing it. link.
An estimated 34.4 million people don't have access to broadband in America.
The interesting thing is conservatives tend to have flexible ethics. He says he is a strict follower of the law, but it takes a tortured interpretation to have our packet delivery network to not be a common carrier.
Now you could argue that if they ban net neutrality and such and ISPs run amuck making the internet their private toll roads, well maybe it will no longer be a common carrier, but that would be no different than saying only Walmart can use semi trucks on the highway. The original intent of the internet was as a common carrier. Interpretation of statutes should be based on that original intent, and not the intent of people wanting to make even more money by setting up more toll booths.
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.
I'm freaking out over Trump because he's attacking Obamacare. I have a type-I diabetic friend (born with it, symptom's started in his pre-teens) who is alive today because the Medicare expansion covered his insulin. Until then he was fighting with our local state government to get enough meds to live. The affect of the disease means he can't work, he spends 2-3 months out of the year just down and out. He's smart enough (smarter than me) but nobody's going to hire you if you randomly disappear 3 months out of the year and good luck starting your on business. He almost died of a heart attack once... in his 30s.
I've got other family members with medical conditions that will be screwed in the pre-existing coverage protections go away. Trump's allowing a lawsuit against those protections to go unchallenged. And I'm 40, so I've got my own problems too....
I'm not anti-Trump because he says mean things. We could do with less civility in this country. I'm so fucking tired of people stabbing me in the gut, twisting the knife and people telling me it's OK because the guy with the knife is _smilling_ while he kills me and mine...
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Please find the exact clause and wording in the Constitution where it grants the government the right to tell a private company what it can and cannot distribute to customers voluntarily consuming its services. You can't, because it doesn't exist.
It's right after the line that says corporate entities are people and have the same rights. And that great clause about money being speech.
ISPs have near monopoly status and receive taxpayer subsidies for a service considered as essential as electric and telephone. You, and this judge, have some psychotic view of corporate personhood where they can still remain exempt from additional regulations that other companies don't have to abide by, and that's bullshit. This has nothing to do with the Constitution.
And take your business elsewhere to who ffs? You think the local cable/DSL duopoly is competition? That LTE counts? That a 3rd provider is actually widespread? There is effectively no competition and you're either shockingly ignorant for a Slashdot poster, or more likely as is typically the case among conservatives who aren't otherwise fools, flagrantly intellectually dishonest.
I really dislike that whole argument of "find that in the Constitution", as if a document written over 200 years ago has every future technology, invention, social change, etc written in it. I've heard the same argument about the EPA, Department of Education, the IRS, etc. By that logic, we should disband the Air Force and the Marines, since the Constitution only mentions the Army and Navy. It doesn't mention electricity at all, or have any comprehension of ideas like nuclear weapons, so therefor the government shouldn't regulate those either, right? We should just return to an 18th century agrarian society, abandon any law having anything to do with anything not specifically listed in the Constitution. If one State doesn't like another State dumping toxic waste into a river right on their border, I suppose they should just call up their State militia and fight it out. States should be able to enact tariffs and embargoes between each other, succeed from the Union without federal interference, determine their own voting laws for any political positions inside their own State, etc. If it's not specifically in the Constitution, it's good to go!
Here is a study (skip to page 11) that estimates that over 50% of US households have 2 or more choices for 25mbps+ landline service.
Typical Republican mindset: "I've got mine, too damn bad if you didn't get yours."
Selfish people with no empathy are ruining this country. Nobody should have to move just to have a choice of broadband provider. Certainly not half of the country.
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DRM is like antifreeze, to the MPAA/RIAA it's sweet, to the consumers it's poison.