The U.S. government and the state of California are butting heads over a newly-passed state law that enforces net neutrality regulations on internet service providers (ISPs). And experts say that the outcome of the feud between federal and state law has long-standing implications for the future of net neutrality.
Senate Bill 822, passed into law on Sunday, was first introduced in March by Sen. Scott Wiener (D.-San Francisco), and mandates a thorough set of regulations on ISPs ensuring they don’t discriminate against various types of content. Wiener said in a tweet that the newly-signed bill “contains the strongest net-neutrality protections in the nation.”
NET NEUTRALITY IS NOW THE LAW IN CALIFORNIA!
— Scott Wiener (@Scott_Wiener) October 1, 2018
The bill prevents internet providers from blocking, throttling or discriminating against any Internet content. The rules are similar to those approved by the Federal Communications Commission during the Obama era, known as the Open Internet Order, which were passed in 2015 and repealed last December amid much controversy.
California’s newly-passed legislation contains other features that make it an even stronger law around net neutrality than the former FCC approach, including prohibiting “zero rating,” which would enable carriers to control which types of content would count towards a customers’ data usage – including their own streaming services or content.
But as soon as the California bill passed, the Department of Justice promptly hit back with a lawsuit alleging that its regulations are unlawful.
“I’m pleased the Department of Justice has filed this suit,” FCC Chairman Ajit Pai said in a statement. “The internet is inherently an interstate information service. As such, only the federal government can set policy in this area. And the U.S. Court of Appeals for the Eighth Circuit recently reaffirmed that state regulation of information services is preempted by federal law.”
The 2015 net neutrality regulations have been opposed by large ISPs like Comcast, AT&T and Verizon (which all also have streaming content subsidiaries). They, like Pai, argue for a market-based approach and claim that regulation is overreach.
“Not only is California’s internet regulation law illegal, it also hurts consumers,” said Pai. “The law prohibits many free-data plans, which allow consumers to stream video, music and the like, exempt from any data limits.”
But Katharine Trendacosta, policy analyst at the Electronic Frontier Foundation, argues that the law was written to be within state power.
“The argument that the FCC preempted states acting to protect the net neutrality within their borders doesn’t hold a lot of water when the FCC gave up jurisdiction of this area in the so-called ‘Restoring Internet Freedom Order,'” she told Threatpost. “You can’t throw up your hands, walk away and say it’s not your problem anymore, only to also say no one else can rush in to solve that problem. You gave up that right when you walked away.”
There is also a federal effort to reinstate net neutrality. Earlier this year, the U.S. senate voted in May to reverse the FCC repeal of net neutrality laws.
However, to pass, the effort still needs to win a majority (or 218 votes) in a House where Republicans dominate; and to get a signature from President Donald Trump, who supports the FCC’s action. Thus, the repeal still has a ways to go. As of June, the measure is still 46 signatures away from a House win, according to a tweet by Sen. Ed Markey (D.-Mass.).
Furthermore, with the 2018 midterm elections looming in November, these efforts may be seen merely as a political move to rally both parties.
California also isn’t the first state to amp up its efforts around net neutrality. According to the National Conference of State Legislatures, legislators in 30 states have introduced over 72 bills requiring internet service providers to ensure various net neutrality principles.
So far, governors in six states – including Hawaii, New Jersey, New York and Vermont – have signed executive orders around net neutrality, while three states (Oregon, Vermont and Washington) have enacted net-neutrality legislation.
Another proposed California legislative effort, Senate Bill 460, also proposes prohibiting ISPs in the state from taking certain actions regarding the accessing of content on the internet by customers. That bill remains pending.
However, California’s scope and size give the recent ruling powerful significance in terms of what it means for national versus state restrictions on critical tech, security and privacy issues.
“SB 822 also resonates outside California’s borders,” said Barbara van Schewick, professor of law at Stanford University and the director of Stanford Law School’s Center for Internet and Society, in a recent analysis. “When California acts, the rest of the country — and the world — often follows. As the largest state in the nation and the fifth largest economy in the world, California has long been at the forefront of forward-looking policy. As the home to many of the world’s most important Internet companies and the most vibrant innovation ecosystem in the world, California needed to restore net neutrality to protect its economy.”