You're going to hate this post. You're going to hate it because it's about what I decided to write about, not what you want me to write about. It's about Supreme Court nominee Brett Kavanaugh, but it's only about a very narrow issue — his treatment of free speech law under the First Amendment as a judge on the United States Court of Appeals for the District of Columbia Circuit. It doesn't talk about what he'll overturn, or about how radical or mainstream he is on any other issue, or his general method of constitutional interpretation, or the inside baseball of how he got appointed. It doesn't advance or rebut a legal realist position about whether judges make up logic to get to their desired result. It doesn't discuss whether he spells the nation's doom or its triumph. It doesn't even address his take on the free exercise or establishment clauses of the First Amendment — it only addresses the speech/press/assembly/petition clauses. It does not, outside of this sentence, acknowledge your Very Important Argument that by merely choosing what to talk about I am engaging in a partisan political act. It is I, Ken, here stomping defiantly on all your fond desires.
Good. Now that we've got that behind us, let's talk about Brett Kavanaugh's free speech record.
Here's the bullet: Kavanaugh has been an appellate judge for 12 years and has written many opinions on free speech issues. They trend very protective of free speech, both in substance and in rhetoric. His opinions are consistent with the Supreme Court's strong protection of free speech rights this century. People who buy into the "conservatives are weaponizing the First Amendment" narrative will see him as a strong advocate of that movement, in that he has applied the First Amendment to campaign finance laws, telecommunications regulation, and other aspects of the regulatory state. But he's also demonstrated fidelity to free speech principles in classic speech scenarios. Even when he concurs in a First Amendment decision, he frequently writes a separate opinion to clarify his analytical approach to the problem. He's quoted First Amendment guru Eugene Volokh — one of the leading voices in free speech analysis and a strong defender of speech rights.
Free Speech and Elections Law. Kavanaugh has voted to strike down campaign financing laws and regulations under the First Amendment. Because he's a judge on the D.C. Circuit, which tends to get cases challenging federal regulations, he's done so multiple times. In Emily's List v. Fed. Election Comm'n, 581 F.3d 1, 4 (D.C. Cir. 2009), he ruled in favor of the progressive EMILY's List, striking down the Federal Election Commission's regulations of political expenditures by nonprofits. He concurred wtihout writing a separate opinion in Pursuing America’s Greatness v. Fed. Election Comm'n, 831 F.3d 500, 510–11 (D.C. Cir. 2016), which struck down an FEC regulation prohibiting unauthorized political committees from using candidates' names in the titles of their web sites and social media pages.
Classic Speech Scenarios. In cases involving "classic free speech scenarios" — the sort of thing that's not derided as "weaponizing the First Amendment" — Kavanaugh has applied the First Amendment vigorously to protect speech. In Initiative & Referendum Inst. v. U.S. Postal Serv., 794 F.3d 21, 24 (D.C. Cir. 2015), he ruled that a Postal Service regulation that barred collecting signatures outside of post offices chilled speech and violated the First Amendment even though the Postal Service had stopped enforcing it. In Boardley v. U.S. Dep't of Interior, 615 F.3d 508, 523–24 (D.C. Cir. 2010), he wrote a strong concurring opinion in a case that struck down a National Park Service regulation requiring a permit for demonstrations on national park grounds, in which he focused both on the burden on speakers and the right to protest anonymously. On the other hand, Kavanaugh has not hesitated to apply traditional First Amendment exceptions when supported by the record. For instance, in Al Bahlul v. United States, 767 F.3d 1, 75–76 (D.C. Cir. 2014), he agreed that Al Qaeda recruitment videos aimed at inciting viewers to kill Americans were not protected under the classic Brandenburg test because they were directed to inciting and likely to incite imminent lawless action. (This led him to quote the somewhat infamous "the Constitution is not a suicide pact" line, one of my least favorite First Amendment rhetorical tropes.) And in Mahoney v. Doe, 642 F.3d 1112, 1114 (D.C. Cir. 2011), he took a somewhat you-kids-off-my-lawn tone in a concurring opinion agreeing that the government could prohibit "defacing government property" — in this case, by chalking sidewalks outside the White House — so long as it did so in a way that was neutral as to subject matter and viewpoint.
Commercial Speech. Courts treat "commercial speech" as somewhat less protected than other speech; the scope of that carve-out is a matter of dispute. Kavanaugh's opinions suggest that the "commercial speech" doctrine should be interpreted narrowly and in favor of speech. For instance, in Am. Meat Inst. v. U.S. Dep't of Agric., 760 F.3d 18, 30–32 (D.C. Cir. 2014), he wrote a concurring opinion offering a more narrow grounds for upholding a regulation requiring labeling of foreign-made goods. He rejected the government's broad argument that it had a substantial interest in forcing vendors to inform customers of the foreign origin of goods, because doing so is not tied to avoiding deception or promoting health and safety. He accepted the government's narrower argument that it had a substantial interest in promoting American-made goods.
Government Speech. The government is allowed to regulate speech on its own behalf; when the message is from and by the government it can determine its content in a way it cannot when it's someone else's speech. The government frequently invokes this doctrine at the margins to defend speech regulation — for instance, in Matal v. Tam, the government argued unsuccessfully that it could ban "offensive" trademarks because issuing a trademark is government speech. Judge Kavanaugh reads government speech fairly broadly. In DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 764 (D.C. Cir. 2007), he agreed that the government could fund only those NGOs that adopted a message of anti-sex-trafficking on the grounds that the government could fund the message it chose. In Bryant v. Gates, 532 F.3d 888, 898 (D.C. Cir. 2008), he wrote that the government could restrict who can advertise in military newspapers because such papers are government speech.
Net Neutrality and Telecommunications Regulation. Oh, people will flip out over this one. In short, Kavanaugh believes in applying the First Amendment to telecommunications regulation. He's written in numerous opinions that the government can't restrict the "editorial discretion" of internet service providers or content networks absent a showing that a particular provider "possesses market power in a relevant geographic market." Put another way, he believes that the First Amendment prohibits the government from telling ISPs and other communications providers that they have to carry competitor's content unless the government's made a showing that they have an anti-competitive level of power in a market. He's blunt about it. "[T]he net neutrality rule violates the First Amendment to the U.S. Constitution," he wrote in one dissent, pointing out that the government had not even tried to make a market power argument to support the regulation in that case. United States Telecom Ass'n v. Fed. Commc'ns Comm'n,855 F.3d 381, 418 (D.C. Cir. 2017). In Comcast Cable Commc'ns, LLC v. F.C.C., 717 F.3d 982, 994 (D.C. Cir. 2013), he wrote a concurring opinion emphasizing that the FCC could not tell Comcast or other programming distributors what content to carry absent a showing of market power requiring it. "[T]he FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing or The Volokh Conspiracy what legal briefs to feature." He sounded similar notes in his dissent in Cablevision Sys. Corp. v. F.C.C., 597 F.3d 1306, 1316 (D.C. Cir. 2010) Put another way, Kavanaugh is unwilling to assume that the goal of competition justifies regulating what content networks must provide absent specific evidence of anti-competitive circumstances.
Limited To Textual and Historical Grounds. Kavanaugh has declined to find new rights within the First Amendment. For instance, in We the People Found., Inc. v. United States, 485 F.3d 140, 141 (D.C. Cir. 2007), he agreed that the First Amendment's right to petition the government does not carry with it a right to have the government respond.
Unions. After Janus, everybody's arguing that judges have "weaponized" the First Amendment against unions, so it's worthwhile to note a union case. In Venetian Casino Resort, L.L.C. v. N.L.R.B., 793 F.3d 85, 87–88 (D.C. Cir. 2015), Kavanaugh wrote that an employer did not violate the National Labor Relations Act by calling the cops on a union protest on its premises. This was a fairly straightforward application of something called the Noerr–Pennington doctrine, which says that behavior doesn't violate federal antitrust or labor law when it amounts to petitioning the government as protected by the First Amendment. This was an unremarkable application of that doctrine. Kavanaugh noted that other conduct by the employer could violate the NLRA, and remanded the case for a determination of whether an exception for "sham petitions" applied, so it takes effort to force this into an "anti-union" narrative.
Discrimination and Employment. Kavanaugh applies, in a straightforward fashion, existing doctrines limiting lawsuits claiming discrimination or retaliation based on speech. For instance, in LeFande v. D.C., 841 F.3d 485, 496–97 (D.C. Cir. 2016), he agreed that the standard Pickering-Connick "balancing test" for whether a government employee's speech is protected permitted a police department to fire a cop for derogatory emails sent to supervisors. In Moore v. Hartman, 704 F.3d 1003, 1004 (D.C. Cir. 2013), he agreed that the law was unsettled about whether an arrest in retaliation for speech is insulated from suit when there is probable cause for the arrest, and therefore the officers enjoyed qualified immunity because the right was not "clearly established." (Notably, the Supreme Court just accepted cert to resolve that question of law.) This application of existing doctrine, though unremarkable, has the impact of making it more difficult to vindicate free speech rights.
Defamation and Anti-SLAPP. Kavanaugh has applied familiar First Amendment doctrine to limit defamation suits, and in doing so has explicitly recognized that defamation litigation can chill speech. In 2017 he wrote "[t]he First Amendment guarantees freedom of speech and freedom of the press. Costly and time-consuming defamation litigation can threaten those essential freedoms. To preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits." Kahl v. Bureau of Nat'l Affairs, Inc., 856 F.3d 106, 109–10 (D.C. Cir.), cert. denied sub nom. Von Kahl v. Bureau of Nat. Affairs, Inc., 138 S. Ct. 366, 199 L. Ed. 2d 269 (2017). In Kahl, he rejected a defamation case by a prisoner who claimed that a press summary of his case falsely attributed a prosecutor's harsh statements to the sentencing judge. Kavanaugh applied speech-protective First Amendment doctrines familiar to defamation lawyers and found that the prisoner had not offered any evidence that the publication acted with the requisite actual malice. Similarly, in Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1332 (D.C. Cir. 2015), he held that questions posed in an article could not be treated as assertions of fact, and therefore could not be defamatory. He again used fairly sweeping rhetoric about the application of the First Amendment to defamation cases.
But Abbas is controversial because Kavanaugh found that the District of Columbia's local anti-SLAPP statute did not apply in federal court. That ruling has made some people — including some colleagues and friends — fear that he's not sufficiently protective of free speech. They are, with respect, wrong. State anti-SLAPP statutes provide a procedural vehicle for defendants to get rid of meritless attacks on speech and recover attorney fees. Kavanaugh is clearly in favor of anti-SLAPP statutes in concept — in Abbas he acknowledges their purpose and importance. His ruling that state (or, in this case, District) anti-SLAPP laws don't apply in federal court is based on a rather wonky and esoteric area of law — which state laws apply in federal courts when state-law claims are tried there? Put extremely broadly, substantive state laws apply, but procedural state laws do not. There have long been disputes over how to treat state anti-SLAPP laws under this analysis, because they have both substantive and procedural elements. Other smart judges — including ones quite protective of the First Amendment — agree with Kavanaugh on this. I like anti-SLAPP laws very much, and from a result-oriented perspective I like to see them apply in federal court, but Kavanaugh's take here is not extreme and has to be viewed in the context of his strong defense of First Amendment rights in defamation cases. We need a federal anti-SLAPP law.
Conclusion. In conclusion, Kavanaugh's work on the D.C. Circuit show a judge strongly protective of free speech rights, and part of the trend of applying free speech doctrines both to classic scenarios and to government regulation. His stance on telecommunications and elections laws will get him painted as part of the "weaponize free speech" movement by results-oriented thinkers. He's strong on First Amendment limits on defamation law and his approach to anti-SLAPP statutes do not, as some have suggested, signal that he wants to make defamation cases easier. But though he might help upset applecarts by applying the First Amendment to regulatory schemes, and will not uphold broad speech restrictions, he will likely not overturn doctrines that make it hard for individuals to recover for speech violations.
Last 5 posts by Ken White
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Thank you for providing such an excellent, thorough analysis. Especially in contrast to the mass of hysterical drivel that is being churned out today. Unlike many commentators, you seem able to view both justices and nominees as being more than one-dimensional partisan parrots.
I don't remember you doing one of these for other recent Supreme Court nominees. Any reason for this analysis of Brett Kavanaugh?
I mean, I guess it's your blog, so you can just post as the mood strikes. Maybe the mood didn't strike for them?
Thank you for this post, Ken.
More and more I see speech as the defining issue of our time. As we enter a neo-1984 where speech can be shut down by invoking some magic incantation like "racist" or "fascist" all of us non-nuts need to be aggressive in protecting it.
That said, young man, I was hoping for a treatment of the new ACLU position on free speech. That was troubling, at least to my eyes. You thoughts, cogent as always, would be appreciated.
Of course ISPs like Comcast have anti-competitive levels of power . That's the whole reason Net Neutrality is a thing. Kavanaugh's questioning that is disingenuous bullshit.
When I use a non-meritorious lawsuit to chill speech, it feels as though I am forcibly wielding the government's power to stifle speech I don't like. This appears, to me, to lead to an impromptu case where the federal government almost *accidentally* violate's someone's first amendment rights by forcing them to appear before a court to answer a frivolous claim.
Which leads me to a two-part question: first, what recourse does a random person have in the face of having their rights violated by the government, and second, why does this recourse not work in the case of slapp suits?
I buy into the weaponizing free speech narrative when it is being used to strike down regulation in a wide variety of contexts and trying to extend the cases where a business is classified as having an editorial role where it frankly doesn't or shouldn't, where delivery of simple services is framed as performative speech.
A set of activists is increasingly using 1st amendment arguments to take a whole slew of business activity out of government oversight and regulation. Great if you think that the government should be as minimal as possible, less great when you think that the government has a important role to play as a rule setter and referee in society.
Ken, in the context of the travel ban ruling you discussed how picking the test picks the result. Similarily people are chosing to frame relationships which previously were not framed as 1st amendment speech as such instead and hence picking the outcome in that respect.
I'm looking forward to the FDA's marketing restrictions being challenged as infringing the 1st amendment and there could be a broader challenge on advertising restrictions as a whole. Other areas were so far a compelling interest by the government to restrict speech has been accepted are also likely to be challenged. Heck, given the recent ruling it also opens up questions around how things like fiduciary duty and a carer's/doctor's duty to inform patients can actually be enforced.
On that note, given the recent trends do you expect that challenge to expand?
I go to your stuff looking for non-partisan, reasonable takes. This was exactly that. Thank you!
I'm confused, is there a single example here of him showing anything other than party-line Republican decisions ? OK, supporting anti-SLAPP laws is not party-line Republican, but it appears that in the two mentioned cases he a( ruled against a prisoner and b) pulled a Roberts by making a bunch of speech in favor of a progressive ideal, then finding a procedural way to get the Republican outcome.
Every other instance seems to be : "No the government can't tell businesses what to do". Even the labeling case seems to come down to "the government cannot do anything to protect consumers, but sure, it can do the exact same thing as long as it's trying to boost businesses!"
Why do these decisions get him praise?
As someone who doesn't really care if an idiot wants to yell"fire" in a crowded cinema (if the movie is good enough you'll be dragging me out under protest), I can't see why anyone would be upset with this post.
I'm rather NOT willing to give up a fraction of a shred of my rights under the constitution (wouldn't be deserving of them otherwise).
"You'll Hate This Post On Brett Kavanaugh And Free Speech"
So, on a widely-read legal blog specializing in freedom of speech issues the principal author writes an extremely detailed article citing numerous and specific examples/cases where a SCOTUS nominee has upheld, in both letter and spirit, the sanctity of the first amendment over a fairly extensive and notable career….BUT the author feels compelled to first make sure his regular audience is sitting down and not currently operating heavy machinery lest they rend themselves asunder with grief and outrage.
Please forgive, during these trying times, the errant Martian who might be having trouble remembering which political faction is the crazy one.
There are days when I feel the internet is filled only with bomb manuals and porn and I wonder whether Sir Tim Berners-Lee feels his child has gone seriously astray.
Then I remember I can freely read the commentary of Popehat and the Volokh Conspiracy, and remember that occasionally the adults are in charge.
Thank you for this nuanced look. I do, however, strongly disagree with Kavanaugh on net neutrality. In a large urban area, you may indeed have many excellent ISP choices. In rural areas and small towns (like Taos, New Mexico, where I live) you’re lucky to have even one. The reality is that there’s no effective competition among ISPs in much of the nation.
His problem is that he thinks that just because a computer has a monitor then it must be like a tv. It's not, it's just like a phone, able to "call" any number. Just because those numbers are translated from names by a DNS does not change their nature, it merely enhances usability. Does my telephone provider "publish" the information my friend provides when I call them? No more does an ISP publish popehat.com when I dial it to see what the pony haters are up to. Just because the dialing mechanism is more advanced than the buttons on a phone, does not change it's nature.
Can a telephone company sell me local only service? Yes. Can they spy for the government? Again, sadly, yes. But just because they move the bits from abc.com doesn't mean that they are publishing abc's content.
@Mike Schilling
"Of course ISPs like Comcast have anti-competitive levels of power . "
Uh-huh. And that's why, pretty much without exception, internet behemoths, including Comcast, all supported Net-neutrality.
That should indicate what the "smart money" thinks the expected outcomes would actually be in terms of winners/losers.
Actually, people are "cutting the cord" like crazy with cable providers like Comcast precisely because they now have alternatives which would have had a much smaller chance of materializing had Net Neutrality been the law of the land for the last decade or so.
Net Neutrality? Meh!
It's only been around a short while and can't see that there was any impact. Just more govt getting involved in the meaningless rather than actually do its job!
Is it only me who does the Happy Dance when our elected officials go on (another) long holiday break?
@Q
"I'm confused, is there a single example here of him showing anything other than party-line Republican decisions ?"
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Is it possible that you need to re-examine your views on "party-line Republican decisions" – especially in light of the fact that one such decision maker is also a vigorous and accomplished defender of the first amendment? I mean, maybe he's also more right than wrong on some other stuff too.
"Even the labeling case seems to come down to "the government cannot do anything to protect consumers,…"
———————————————————-
This is the same government that brought us the sugar/carb-heavy food pyramid, subsidized high-fructose corn syrup and a whole generation of obesity as a result. Maybe it would be OK if they took their foot of the accelerator for a little bit.
Ignorant horseshit. Comcast will use their market power to force their captive internet customers to buy their cable service by throttling their cord cutting competitors.
Setting aside for the moment that The Supremes tend to get mind-wiped during orientation, I thought this was a great dive in to how Kavanaugh currently views the 1st Amendment. Now, on to the next significant Amendment: the 3rd.
For what it's worth Ken I love rather then hate analysis that zero down onto specific, well backed and principles oriented issues. In something as broad as this it's refreshing whether I agree or not to break the arguments down somewhat. I think it helps anyone invested in this to clarify their own thinking a bit. Helps me anyway.
One question I've been pondering today related to this is certainly the whole net neutrality part, since as a tech person it's near and dear to me and is also ground that seems a little less emotional then the pro-choice/anti-choice fights for example and in turn more interesting to debate. While I was initially irritated by his "the government requiring basic infrastructure be content neutral is against the 1st Amendment" argument, upon more reflection I wonder if it's actually necessarily something that can't be accounted for? It seems like it'd be perfectly within that to not require it as a matter of course for everybody but rather for the government to offer the classic long standing editorial control vs liability exchange instead. My minimal legal understanding at least is that normally there can be a relatively common sense power/responsibility tradeoff: the more editorial control an entity exercises, the more responsible they are for the content in question. And liability is a matter of government discretion, they can set standards for that.
That seems to lead to a potentially workable tradeoff: ISPs would be free to choose to either act as basic pipes and common carriers or alternatively to exercise editorial control and content-based monetization. If they did the former they'd receive the privilege of a legal firewall from whatever their customers did independently. If instead Comcast or Verizon or whomever wanted to assert their 1A rights and editorial control it'd be legal, but if someone sent something bad over they didn't stop they'd be civilly and criminally liable too. That seems to be fully within Judge Kavanaugh's comparison of infrastructure information services to cable TV: if Comcast broadcast something illegal on one of their cable channels, the government would come knocking on Comcast's door. Whereas if in the normal course of things a user of a common carrier requests something illegal, it's that user's responsibility, not the common carrier's (any exceptions aside).
I wonder how he'd decide though if they argued to have their cake and eat it too, ie., they want 1A when it's convenient and will make them money on their monopolies but they don't want to be held responsible for any costs otherwise? If there was a line though that seems like it might be enough for the market to take action even in the case of natural monopolies for basic infrastructure. An ISP that chose to embrace common carrier status and net neutrality would just be so much vastly cheaper to run then a full fat editorial one, even though the latter might be able to monetize a lot harder.
To add, I don't hate that post at all. :D
It provides a really handy summary of the potential justice's stances on an issue you care deeply about. Thanks for the thorough analysis. I read it with interest despite only tangentially addressing it in my earlier comment. There was nothing I could have added to it directly.
@Solaric,
I rather do find the "choice/anti-choice" arguments very interesting, inasmuch as one view is basically WWII Switzerland, and the other is an actual stance.
@Mercury
The cable companies have been fighting and lobbying heavily againt any form of net neutrality legislation. The latest example being the gutting of California's net neutrality provisions after heavy pushback from industry.
Cable TV may be dead and most Cable Companies damn well aware of that but that only makes them all the more determined to turn internet provision from a content neutral telecoms service into a pipe of published content with the first amendment preventing any legislation to return the nature of the service to what it was before.
Of course Verizon, Comcast etc have all at various points released statements that of course they support net neutrality. I mean they love their consumers don't they? Their actions have always spoken for themselves though.
RE: Maeve
You don't understand Net Neutrality well enough to have a valid opinion on the topic.
re Mercury
This is an absolute lie. Web-based companies like Google and Netflix supported Net Neutrality. ISPs like Comcast gave a vague rhetorical support for the concept but screamed like angry hyenas whenever actual rules threatened to impinge on their plans to coerce revenue out of Internet businesses.
@Mikee,
That may be true. But the not-quite-anarchist in me didn't think things were going so badly before Net Neutrality. Of course, I'm just looking up recipes and romance book reviews, so maybe the tentacles didn't reach that far.
@GrammaticallyIncorrect
We're talking about the federal, FCC regulation here.
Google: "David Cohen, Comcast net neutrality"
@ Andy
Google: "Cohen, Comcast net neutrality"
It's being regulated like a utility (Title II) that Comcast objected to (understandable if you're a for-profit enterprise).
In any case, my larger point still stands as all the mega-Silicon Valley companies were ALL all-in for net neutrality. I mean, what else about Facebook makes you think: "Hey, they're looking out for me!" ?
Net-neutrality, in a nutshell, is the government saying: "Hey, nice internet you got here. Lots of things happening, people making money, everybody's happy….be a SHAME if anything happened to it…"
@Ed in Fla.
Can you cite some examples where the government has shut down free speech due to some magic incantation like "racist" or "fascist"?
Or if that's too strong of a way to characterize your assertion, can you cite some examples of non-government actors coopting the power.
In my experience, the "magic incantation" phenomenon you're talking about doesn't exist the way you think it does. Sometimes "racist" or "fascist" (or, if you want to be bit a more fair and intellectually honest) "PC" or "SJW" or "liberal snowflake" is a nice way to call attention to something someone said, and sometimes it's negative attention (in the form of other folks exercise their own First Amendment right to express opinions critical of your expressed opinion.) The "magic incantation" doesn't cause people to start yelling at a guy whose statement was objectively reasonable and uncontroversial–it's merely the dog whistle that brings the attention of a bunch of folks most likely to view your statements unfavorably on their own merits.
Mel Gibson wasn't (temporarily) ostracized from Hollywood because people called him anti-Semitic–he was ostracized because he made statements that a lot of people view as anti-Semitic, and unfortunately for him some of the small group of people who heard him decided to say to a much larger group of people, "Hey, listen to this anti-Semitic shit Mel Gibson said," and then the majority of that much larger of people listened to what Mel Gibson and agreed it was offensive.
Magic incantation implies the ability to generate outrage (and presumably, some sort of First Amendment violating censorship) that is unwarranted. I consider that to be a ridiculous assertion on your part. By your argument, if I somehow told the entirety of American public that your post was racist and fascist, and linked to your post, you would be immediately be swamped by angry critics and bracing yourself from the angry censorious hand of government.
But we both know that wouldn't happen. Perhaps a few incredibly partisan and brain-damaged liberals might troll you in the comments for a bit, but the vast majority of people would simply skim your comment and quickly realize that nothing it in was at all racist or fascist. My use of the "magic incantations" wouldn't censor you, nor would it generate offense where none existed–if anything, it would reflect extremely poorly on myself and draw a lot of negative attention in my direction.
The whole "magic incantation" argument is a tired fallacy, and I'm beginning to feel embarrassed by how often it's espoused by people who ostensibly agree with me on speech related issues.
So, he's going to advance Republican Party policy goals from the bench in the vast majority of cases because it would be difficult for actual elected Republican representatives to do that w/o facing electoral consequences. Not really surprising.
Ken: Would you be willing to write about his background on his 4th amendment cases? I appreciated your writing on the 1st amendment, but would be curious of his track record on the 4th. thanks if you'd be willing to write "what you want me to write about".
@Mercury
About Cohen's statement on net neutrality, that is one of the PR statements I was referring to.
I have no idea how the heck you can mischaracterize the recently reversed net neutrality doctrines that much. Some sort of net neutrality regulation has been in effect or being reworked for well over a decade. The most recent version which was repealed by Pai was a rework of prior rules which were judged to have been enacted under the wrong authority.
It's not as if the FCC turned up Wheeler and and suddenly overturned what was the previous approach.
This is a good article from a long time tech commentator providing both background about net neutrality legislations and pushback and why he personally changed his mind on the issue:
https://www.techdirt.com/articles/20171206/22535138758/why-i-changed-my-mind-net-neutrality.shtml
Regarding net neutrality, I'm generally against a government mandate of what it thinks net neutrality is, but I find that the hair-splitting arguments over what business activity is or isn't speech (whether you're an internet provider or a militantly heterosexual baker) is precisely why government should not be in the business of regulating business in general. I was in the business of law for a decent chunk of my life. While drafting memos and motions doesn't leave as much room for creative expression as writing a novel, I would argue that it involved much more of my own creative agency than baking a cake or relaying data from one server to another. Yet the various Bars (under authority conveyed by their respective states' judiciaries) routinely enforce ethical rules limiting the freedom of expression of practicing attorneys.
There is no real consistency in how we have drawn the line between primarily expressive and non-expressive business conduct. Is Abercrombie and Fitch subject to employment regulations requiring them not to discriminate on the basis of race, or are they engaging in protected First Amendment free expression when they carefully cultivate a specific (clean cut, kind of Aryan) look in their stores? Is Harvard subject to prior precedent barring the use of quotas to favor some races over others, or can they claim First Amendment protection by framing admissions as "the expressive activity of building a class"?
The problem in trying to figure out where the law (and public opinion) stands on these esoteric (but highly important) questions of semantics is that most people don't actually seem to care. They base their opinions on whether they think 1) all discrimination is bad 2) all discrimination is okay 3) all discrimination is bad, but we'll look the other way when it favors whites, or 4) all discrimination is bad, but we won't worry too much if it favors minorities, and then figure out the best post hoc legal justification they can.
Personally, I think that the option of net neutrality is a good thing–it's something I want for myself, and something I am willing and able to pay a premium for if that's what the market demands. I find the idea of an ISP, or a phone company, or Fedex or USPS, curating my communications offensive. That being said, the market should be free to provide what people want. If Comcast wants to offer a discounted "no more fucking cat videos on youtube" plan, and people are willing to buy it, they should be free to do so. If the Koch brothers, or Ariana Huffington, want to subsidize free high speed internet in rural areas, on the condition that all liberal or all conservative news outlets are barred, they should be free to–for many folks, gimped, censored internet might be the only alternative, one that's far better than no internet at all. The only role the FCC–and the federal government in general–should have is to set a specific definition of what "net neutrality" entails, and to make sure that if a company touts a plan as following those principles, they are actually doing so.
Another issue may also be that safe harbor provisions (offering various protections based on the idea that platforms are not actually responsible for the speech they facilitate) will have to be strictly limited to companies that abide by net neutrality practices. To me, if the government wants to argue that Twitter or Facebook should be considered publishers because they have algorithms to promote certain content and mechanisms to censor certain content, then they can't reasonably argue that an ISP that making deliberate decisions on what content to throttle and what content to bar altogether is merely a neutral platform with no editorial control.
I'm a little surprised that you aren't commenting on the Hammond pardon, given that you wrote this long piece supporting the ordinariness and implied fairness of their conviction and sentence. You remember this, right?
https://www.popehat.com/2016/01/04/what-happened-in-the-hammond-sentencing-in-oregon-a-lawsplainer/
I guess no one can get everything right, but you did miss some important details in telling the story. One is that the US Attorney who sought the charges, Amanda Marshall, was pursuing a personal vendetta against the Hammonds over a child-custody case that she had prosecuted in her previous job, which was terminating parental rights for the State of Oregon.
Oh, yeah, she was suspended and resigned shortly before this case closed out, not around her misconduct in this case, but still over showing a lamentable lack of judgement.
Then there is the Judge who imposed the harsh sentence. A political creature, Ann Aiken was a Dem fundraiser, paid campaign staffer for Democratic gubernatorial candidate, and her husband was the chair of the Oregon Dem party. This got appointed to the District Judgeship by Bill Clinton. She was an Oregon circuit court judge for a few years previously.
Anyway, for a lot of us who live out here and have been following the case this is a great day, justice has been served, later than we hoped, but still the record has been set straight.
Trump seems to have focused his pardons on cases of government over-reach, fixing some of the many obvious political prosecutions of Obama's highly politicized Justice Department, which (despite your apologetics) this is a great example of.
As far as pardons go the great Daniel Greenfield summed it up best: "While Obama pardoned drug dealers and locked up ranchers, Trump pardons ranchers and locks up drug dealers" and "These pardons cleanse another stain from our nation's history in the dark years of Obama."
I am curious about the "incitement vs. advocacy" issue. My (perhaps very wrong) understanding of incitement was that the lawless action had to be "imminent", meaning, there was very little time between the speech and someone acting on it. I believed this mostly applied to situations where a speaker was talking to people who were, right at that time (or very soon), capable of acting on the speech they heard. (This could include a tweet, use of instant messaging, and other means of projecting your speech directly at people currently situated to do what you suggest.)
Or, the difference between an editorial in the Transylvania Times saying, "We need to have someone look into what's going on at Frankenstein's place" and a guy in a tavern screaming "We've got torches and pitchforks, let's get Frankenstein!". The former, as I understand it, is advocacy, the latter is incitement.
I don't see how a video on YouTube meets that standard under most conditions. Someone might see it and decide "Yeah, I should go kill some Americans", but this decision could be weeks or months after the video was posted. Assuming the person watching did not immediately jump up from their chair and begin killing people, and did so solely because the video told him to, I'm not seeing the imminence. I'm hoping you can explain what I've misunderstood.
I’m a little annoyed at the unnecessary Brandenburg tangent in Bahlul. He starts off perfectly by saying the defendant was prosecuted for conspiracy based on his conduct: acting as a personal secretary and media secretary for al Qaeda.” He should have followed that with “Assuming the production of recruitment videos is protected free speech, nothing prohibits a person’s speech from being used as evidence that they committed a crime.”
A post like this takes a lot of effort to compile and compose. Thank you for your investment of time and thought on this one, Ken. Bravo.
I don't agree with all of his conclusions, but there is only one I find really outrageous.
In the Net Neutrality opinion, he compares ISPs like Comcast to a large number of "edge providers", which is missing the point completely. Comcast is a communication provider, who is (supposedly) transferring information (packets of data) from one node to another, at least one of these two being a customer. They don't provide the content, or that is a different service altogether that wouldn't be regulated by Net Neutrality. (eg. Tv, VOD, hosting services, etc.)
The only target of Net Neutrality is their "communication provider" side, which should be compared, at best, to telephone or postal services.
The discussion has been framed such that any communication they allow is to be treated as "their speech"… though only for the purpose of rejecting Net Neutrality. It would be interesting to tell them: "ok, you can rely on free speech arguments, but only if you accept complete responsibility for any content going through your network". Including any criminal activity that one of their customer is involved in through Internet. It's totally stupid to handle this any other way.
@Elyce: You're right. Ken didn't do anything like this about Gorsuch, or Kagan. (I didn't site search every justice, just those two.)
Maybe he recognizes internally that the likes of Kavanaugh have a results-driven process just as much as anybody else. (They do, Ken.
@Ken: Regarding this:
My personal preference is that appellate judges have experience as trial court judges, or at least as trial court litigators, so that they have some reasonable grasp of how things actually work at the trial court level.
On your one piece about the Kagan nomination?
Some of our best justices had little to know judicial experience before sitting on the top bench — Warren, Black, Douglas, Marshall come to mind.
==
Finally, no member of the current court has seen fit (well, Gorsuch hasn't really faced such a case yet) to fully extend all of the First Amendment to secularists and Kavanaugh will be no different.
I think our humble host is very subtlety communicating he doesn't like the "weaponizing the first amendment" characterization here. Of course I could be wrong.
In DKT Int'l, Inc. v. U.S. Agency for Int'l Dev., 477 F.3d 758, 764 (D.C. Cir. 2007), he agreed that the government could fund only those NGOs that adopted a message of anti-sex-trafficking on the grounds that the government could fund the message it chose.
I see this as a seriously anti-First-Amendment position. The flaw here is that "the government" is not an individual, but an institution with the power to use force to fund itself. Thus, anything government "says", it is saying with money other people are forced to give, and thus each one of those people has the First Amendment right to veto that action.
The same goes if the "speaker" is a union and the funds are union dues.
Besides, funding NGOs (or state or local governments, for that matter) and then imposing conditions on the recipients of that funding is not among Congress's enumerated powers, and thus is not a legitimate power of the federal government. Trump should be appointing justices who will overturn Wickard v. Filburn and its follow-ons, not centralizers who will make it worse.
I agree this is a Good Idea, but it would require amending the Communications Decency Act in a very surgical way, and I do not trust Congress to do that correctly.
@Laurie Dunn
It gets worse then that. The FCC has recently made headway in calling LTE networks equivalent to broadband, so if you live in an area that has cellphone LTE coverage and a traditional ISP, your ISP is not considered a monopoly
Ken, thank you for this. And you're right, the Net Neutrality, yea… about that.
@IForgetMyName
RE: Net Neutrality post
The problem with your idea of not regulating ISP for Net Neutrality is that, well, in most US markets there IS no meaningful competition to enable a market based "pay a premium for if that's what the market demands". How are you supposed to pay a premium if you have 1 source for decent Internet access (say, FCC Broadband Definition of 25Mbps down/3 Mbps up) which is probably Cable, and perhaps slow DSL of maybe 8Mbps/1-2Mbps. And both at the same price as each other possibly.
If ANY FCC decided to require local loop unbundling (last-mile wire & infrastructure leased to competitors at regulated wholesale prices) like the cell MVNO carriers, we could have some real, meaningful competition. A market based solution. But of course the Republican's don't want that, and most especially the existing ISPs don't want that. If there were real and meaningful competition then we could easily sort these out in the marketplace, which is an idea most embraced in Republican rhetoric, and at least in ISP land they most certainly seem to reject. Last-mile wiring needs to be treated like your long-distance phone or water or electricity lines. Only makes sense to run it once, and let everybody who wants to access/use it.
I'll buy that general concept. I don't see it possibly being applied in practice. It'd be the local DA's mostly, and the ISPs sure do contribute to local elected officials campaign financing. How often do you think they'd actually get criminally prosecuted? Basically never.
@Maeve
Net Neutrality is NOT new, it's just been given a name recently. It's the status quo ever since the government start letting commercial entities onto it. Up until the big ISPs started seeing they could extract more money from their existing subscribers, or the companies which their subscribers wanted to get data from, they've been pulling all sorts of shenanigans. Net Neutrality is what the ISPs (who invariably ALSO have video, voice, etc services) fear most is being turned into a dumb pipe where all they do is pass bits and have consistent profits. Wall street demands constantly growing revenues (not necessarily profit!) from these companies, and there's nowhere else for the regular home consumer to go.
@Wyrm: Thank you for writing that, you saved me from writing something extremely similar.
The caveat I have is whether the ISPs were under Title II at the time, or not. Under Title II, they get classed as carriers, and all of what you wrote applies. Before/after, perhaps not. Neither you nor I are willing to grant them the status of curators or editors, but the law may well not agree with us.
Yet.
Again, as you point out, they've got "carrier" and "content provider" sides, and IMO there really ought to be a chinese wall between the two.
Kavanaugh is a fucking moron.
By his logic, *all* regulations are against the 1st amendment.
Also, if an ISP (or a phone company) is claiming "free speech" when violating net neutrality, that means they could no longer claim immunity via "safe harbor" protections.
That means they then become liable for *all* illegal activity their customers partake in.
The central problem against seem to be the insanity of corporate personhood and money=speech. The problem isn't defending free speech in itself, it's saying that free speech ought to apply to things other than people and speech. And also his complete failure to understand even the basic concept of how the internet works. Then of course, it's taking intellectual dishonesty to a whole new level to contend there hasn't been overwhelming evidence of monopoly/duopoly status in the vast majority of the country, and massive abuse of that position.
Alternate headline: Wife-Beater is Otherwise Nice to Most of His Friends
@GrammaticallyIncorrect says
Actually, I'm more sympathetic to 'Ben's Response' at the end of the article. Aside from the aforementioned rent-seeking, the boogey man that supposedly justifies Net Neutrality is mostly stuff that theoretically could happen in the future. The article's "long list" of past bad behavior is pretty thin gruel. Do you even know anyone who knows anyone who has been badly compromised as the result of too-light net-neutrality regs? How about we wait until a decent-sized raft those kinds of horror stories piles up before we turn the keys over to the Feds?
Surely we can both agree that robust competition is the best situation for consumers in a dynamic technology space. Do you really think we'd be this far away from dial-up modems today if the internet had been regulated like a utility for the last 25 years?
Free speech is another thing liberals will turn against if Trump favors it–just like peace in Korea and trying to avert a nuclear Holocaust. I don't even recognize my own political movement anymore.
The argument that regulations requiring net neutrality somehow with have prevented whatever significant internet (and especially web) related advancements is a canard.
The overwhelming majority of those advancements have been from individuals and non-ISP companies and instructions, and ISPs have acted as carriers with neither contribution or even detailed knowledge of the communication taking place. To whatever extent an ISP is a publisher or otherwise an actor in the communication, so is the USPS.
Kavanaugh is not respecting the first amendment in this case – he is committing a category error.
@Mercury The urgency behind net neutrality is coming from companies like Google and Netflix who hope to use it as a cudgel to upend the delicately balanced peering agreements that have kept the Internet free and open for more than a decade now.
@MelK: Modems used phone lines that were definitely regulated as utilities. My recollection is that DSL was regulated as a utility when it used phone lines. Connections over cable were initially not treated as carriers because it was understood that they were primarily for delivering cable tv.
Basically, we've only had ISPs for not quite 30 years.
For the first decade or so it used phone lines. As the internet became a thing cable companies saw that they could make some extra money by providing a connection over cable.
In the second decade the government realized the regulatory environment needed to be sorted out. Especially as ISPs began looking for loopholes to cut costs and create upcharges for captive audiences. The FCC didn't want to apply all of the utility regulations, like the rate setting rules for example, so they chose to import the neutrality rules from the utility side while classifying ISPs as an information service.
This continued into this decade, the third, with the Verizon case in 2014 overturning the latest rules. This led to the reclassification in 2015 and, still, the FCC didn't apply all the possible regulations.
Other than him being completely wrong on Net Neutrality because by definition ISPs in this country are competitors with the other content producers and by definition they have market power as well. He seems pretty reasonable.
Nothing.
There are plenty of times that Facebook has proven it isn't looking out for me, even if they'd like to pretend they are.
I do, however, happen to believe that in this case, Facebook's interests (that I be able to access Facebook without Facebook having to negotiate competing companies or risk being throttled) and that my interests (that I be able to access Facebook without having to pay for an additional 'Facebook Package') happen to align.
Most of the silicon valley companies like net neutrality because most of the silicon valley companies benefit from it. It's profitable for them. I, too, benefit from net neutrality. As does anyone else whose viewpoints are not in lockstep with those of Comcast or any other internet company. Or who doesn't want to pay extra to be able to do things that their current service would already allow.
The thrust of your point changes entirely if it's not the ISPs that are supporting it.
@Mafia Kirby says
There is a finite capacity on any data pipe.
The servers whose massive content is throttling the fixed-bandwidth pipes are the same servers who don't want any restrictions on how much data they can send down those pipes without consequences or variable pricing.
If you're say, in the video streaming business like Netflix (which requires the same amount of additional bandwidth with each additional viewer of the same material – unlike broadcasting) you're basically the biggest single user of capacity at any given time (Netflix alone has actually clocked in around 30% in many places/times). So, if things get slow on the internet on Friday night, the biggest single factor is Netflix. Net Neutrality means that Netflix's content gets treated the same as other content, most of which is using .00001% of the bandwidth that Netflix is using. So of course Netflix wants to "keep the playing field level" because that ensures that the check for dinner gets wacked up into X equal parts regardless of how many bottles of wine Netflix orders for itself.
Without Net Neutrality, Netflix is more likely to seek alternatives which is an incentive for innovation and infrastructure build-out – which is exactly how we got from dial-up to where we are today.
Are you this passionate about a flat income tax too?
Errr… Comcast has violated net neutrality multiple times. It's been taken to court over this. It, Time Warner, and other biggies (all, like, 2 of them) have lobbied heavily against net neutrality, up to and including filing thousands of fake comments to the FCC, under random peoples' names, to try and make it look like the public WANTS to pay more for less service.
As for cutting the cord – the major providers literally don't care. They're on record as not caring. Because what it actually refers to is getting rid of standard cable TV, and streaming things over the internet. You still only have one, maybe two if you're lucky, decent providers in your area. Which means you're still paying the exact same people for content. They don't especially care which particular wire you use to get your data. It's all 1's and 0's, and they KNOW that.
As for those companies that only arose because net neutrality didn't exist? The opposite is actually true. Without equal treatment of data, they never could have prospered. When Comcast and the like violate net neutrality, it's to HARM companies like Netflix, or online gaming, or anything they don't turn double profit from, not to help those sectors.
You give me a situation where there are 10 companies, minimum, in every area, providing service at a European level (ie: vastly better than Comcast or time Warner/Spectrum), and who have in VERY clear language their contracts for what content they make move fast or slow? I'll agree it MIGHT be ok to let them pick which content moves at which rate. Right now? To suggest that internet access is the US is not anti-competitive? It's a sign of stupidity, dishonesty, or both. There are literally no other true scenarios that are possible.
Kavanaugh is a bad pick who has made a career of ignoring the letter and spirit of the law in order to harm the US. He's been ok on free speech – that's basically the very best that can be said of him. Unfortunately, any Trump pick was going to be a not terribly honest person bent on hurting the people of the US, so this is no surprise.
Interesting Free Speech case. I've followed this from the tech and 2nd amendment aspect. this came as a surprise.
https://www.wired.com/story/a-landmark-legal-shift-opens-pandoras-box-for-diy-guns?mbid=social_fb
Netflix isn't just flooding the myriad pipes of the Internet with content willy-nilly in the hopes that someone will see it. Every bit they send was specifically requested by an endpoint device some customer is looking at. They're 30% of Internet traffic at peak times because that is what people are using the Internet for.
Well put, Nope on what Kavanaugh is about.
Well put, Guest, on the facts on Net Neutrality rather than what some dittoheads here are saying.
==
Oh, Ken? Justices of all stripes practice "results-oriented jurisprudence." Some are just more hypocritical than others about how and why they do that.
@Ken:
Two interesting questions, if you feel like writing any more on this:
1) How many, if any, of these decisions would you consider to be… Unusual, controversial, ground-breaking, precedent-setting, anything of that general nature? Is Kavanaugh *especially* First Amendment respecting/disrespecting in any particular way, or is this essentially what you'd expect to see from any judge who's made decisions on a bunch of different cases?
2) How relevant to the overall process of selecting a nominee, approving one, etc. do you feel Kavanaugh's First Amendment views in particular were/will be? Do you think he's been chosen *for* his First Amendment views, that his First Amendment views will be a particularly key part of his hearings, etc?
@franklyn adams:
I believe the entire purpose of the initial paragraph is to disclaim any interest in writing about absolutely any part of Kavanaugh's views apart from his First Amendment ones, and to disclaim all interest in anything that a judge might do that has any bearing on any right or point of law beyond the very specific lines of 'free speech'. That's a… very specific and unusual view, but it's a clearly stated one.
@picklefactory
…and Netflix's ability to offer that particular service, at the expense of the quality/speed of ALL data transfer in the pipe, is enhanced by one-size-fits-all regulations.
Net Neutrality abets oligopolies which is why all internet oligopolies are for Net Neutrality.
@ Mercury
"This is the same government that brought us the sugar/carb-heavy food pyramid, subsidized high-fructose corn syrup and a whole generation of obesity as a result."
Literally proving the original commenter's point, since all of these things happened at the behest of industry lobbyists.
@Mercury
Netflix has the ability to send data to people on the internet because they, like the average human sitting in front of their phone or computer, have paid an ISP to hook them up to the Internet and send the 1s and 0s requested by their customers who are also on the Internet.
Historically, the way the Internet has worked is that if I have software, and some other company also has software, and we both have addresses and the ability to send and receive data on the Internet, we can get just on with sending and receiving data.
ISPs have link utilization caps. I can't suddenly get 2 Gbps from Comcast instead of 300MBps just because I need to download some software and I want it bad. Netflix is in the same position. ISPs certainly have the ability to use network management to meter their customers as well.
So I'm paying Comcast for access to the Internet. Netflix is paying their content distribution network to send data over the Internet to subscribers who ask for it.
Comcast would like Netflix, or maybe Comcast's subscribers, to pay Comcast more in order to use this last-mile hop to use Netflix, because this sending and receiving of data that happens to be video is in competition with Comcast's media production business, and this additional operating cost will make their competitor, Netflix, less competitive.
Netflix's competitors also don't care to pay Comcast (who is also their competitor) more money to deliver their video data, so they would also prefer that net neutrality obtains. Their operational costs are low now because they don't have nearly as many subscribers as Netflix, but once they have millions they will certainly be paying for heavier utilization of their content distribution network.
Rent-seeking ISPs are the only businesses that will benefit from the destruction of net neutrality as a norm.
@Laurie Dunn It's actually even worse than it appears. Although big cities when taken as a whole often have quite a few broadband providers, when you look at the level of what options an individual address has access to, it's often just one or two. Apartments get it even worse, as apartment management often has exclusivity deals with ISPs. And unlike the rural area, the "relevant geographic market" will look competitive enough that they'll still be allowed to control the content that their captive customers can see.
@drij
The government is still responsible for its own actions.
Beldar says July 10, 2018 at 1:31 pm:
Ditto. Thanks, Ken.
@Maeve: The most infamous example of what Net Neutrality was trying to prevent was Verizon's throttling of Netflix. Verizon customers suddenly found that Netflix worked much worse than it used to, and that it mysteriously worked better when using a VPN, which is contrary to normal laws of physics. It turned out Verizon was throttling Netflix's traffic in order to shake them down for a fee. Double-paying for bandwidth — not just to your hosting provider, but also to every regional ISP — in order to let customers use your service is not how the Internet has traditionally worked.
So by logical extension we risk ending up in a situation where new services are essentially unable to get off the ground, because if you've got a neat new idea for a business, you probably can't afford to pay off every ISP in order to let their customers access your website. The only companies that will be able to cost-effectively launch new services are the ISPs themselves. It's part of a general effort to turn the Internet into a broadcast medium with defined channels controlled by a few players, instead of a peer-to-peer one where anyone can play.
@Jackson: What bothers me most of about the Hammond pardon is that it seems like yet another instance of the right signaling, in a winking way, that threats of armed violence will be rewarded — if you're white, conservative, and have a rural accent. The way the wildlife refuge occupiers were treated was so utterly different from how people of any other race or ideology would be treated in the same circumstances that it's hard not to see it as deliberate.
@Mercury
I'm already paying (through the nose compared to many other countries I may add) for the bandwidth needed for Netflix to deliver the content to me through my ISP. It's simply that my ISP wants to extract even more money by charging other people to access me. They want to turn their subscribers into another product they can sell.
Now that is not in any way shape or form surprising since that would bump up their already large margins.
I am not surprised you are more in line with Ben Thompson's reply. Again though he elides that regulation was the status quo and that de-regulation is the change. The legislative backing for the regulation following repeated challenges by cable companies and ISPs but the substance of the regulation hasn't.
Worries about investment seems to be the main driver of his position. It is not regulation that has been driving investment (or underinvestment) in broadband. All carriers have been happily pocketing government subsidies (many provide due to them being classified as a communications service and they don't forsee these payments stopping even if they do get reclassified). They have been Making grand promises of improved coverage to stave of further regulation or competition from localities and then just not pulling through on them. Lack of competition is driving underinvestment not government regulation.
If you look at Ben's blog post linked he also overlooks ir ignores many examples of ISP and cable company misconduct and states that the couple examples he mentions are the full examples of major ISP and cable company abuses.
To summarize they have been happy to provide the bare minimum of service required with neither competition being present or government action being present to drive the ISPs to invest. If they gain the ability to increase revenue per subscriber they will pocket the gains since nothing is driving them to improve their service.
@DerangedDan & @Laurie Dunn To add to your comments. I live in New York and my choices are between Verizon dial up and Optimum cable (i.e. no chaoice at all). Verizon has been humming and hawing for well over a year about rolling out fiber. Looking at New York as a whole you have the choice of Optimum, Verizon, RCN, Comcast but basically never all at once.
@GrammaticallyIncorrect: Same here in California. There are many, many ISPs in California, as you might expect. But where I live there are only two options: Cox Cable, and Frontier DSL. (In theory there's a third option, a wireless ISP, but they're even slower than DSL, have punitive data caps, and exist purely to serve rural areas not wired for cable.) Frontier's offerings cost as much as Cox's but deliver a fraction of the speed, and aren't available in all neighborhoods. (Phone companies see DSL, and wireline services in general, as dying technology and won't expand capacity.)
Lists of broadband providers by state or even by county often obscure the fact that they're almost never in direct competition; they stick to their own monopoly territories.
Internet content providers are in favor of net neutrality, yes. But not for the same reasons consumers should be.
For the consumer, it means that when you pay for internet bandwidth, it means you can use it for whatever you want, and it works equally well regardless of what you use it for.
For content providers it means they don't face extra charges from ISPs in order to get their hardware to work properly for their service.
With net neutrality there are also advantages for small content providers, in that they can't be forced out of the market for being unable to pay ISPs.
Really, it is a much better implementation, where everyone gets paid for providing services instead of not providing them.
Yeah I hated it. But, good analysis. There is more than one issue a Judge can rule on besides Roe v. Wade.
You know, it never occurred to me that calling the cops is a 1A petition right. Seems obvious in retrospect.
FedEx and USPS provide faster services (like Priority Mail) for extra fees, don't they?
"Netflix isn't just flooding the myriad pipes of the Internet with content willy-nilly in the hopes that someone will see it. Every bit they send was specifically requested by an endpoint device some customer is looking at. They're 30% of Internet traffic at peak times because that is what people are using the Internet for."
While it's true that Netflix isn't just pushing random data to random people, it's not true that every bit they send was specifically requested. Netflix has significant control over the entire experience. It's their platform that decides what codec to use, what quality to send video in, and so on. Netflix is better positioned than anyone else to provide the highest customer quality per byte sent, so it makes economic optimization sense to impose most of that cost on them.
"Comcast would like Netflix, or maybe Comcast's subscribers, to pay Comcast more in order to use this last-mile hop to use Netflix, because this sending and receiving of data that happens to be video is in competition with Comcast's media production business, and this additional operating cost will make their competitor, Netflix, less competitive."
There's a good reason to think this is not true. The practice of paid peering for these types of interconnects predates this kind of competition. Historically, content provider networks and internet service providers did not compete, yet settlement was the norm.
There are rationales for paid settlement that have been the norm for the internet for decades, and they go like this: Unless we're talking about attack traffic of some kind, it's reasonable to expect that each packet that traverses the internet benefits the sender and the receiver roughly equally. Thus it makes sense that they should do equal work or, if the work is unequal, the side that does less work should pay some money to the side that does more work.
Consider, for example, if there's network traffic from New York to California. If one side is doing all of the long haul, it makes sense that that side should receive some money from the side that is not doing the long haul. For settlement-free peering, they should each be doing half of the long haul. Internet routing typically uses nearest exit which means that the norm is for the receiving network to haul the traffic further. Thus networks that receive more traffic are doing more work and are entitled to compensating payments from networks that send more traffic.
Another issue is that some businesses have unusually low costs. Netflix, for example, can locate their servers in data centers. Others naturally have higher costs. AT&T can't ask their mobile and home internet customers to move into data centers to cut their costs. Since the traffic benefits both sides equally and AT&T has higher costs, it makes sense for Netflix to pay AT&T a compensating payment. And, again, this has been the norm on the Internet for decades.
It is disingenuous to claim that their motives are anti-competitive when the practice predates the competition and has been the accepted norm in the industry.
They do!
Are those fees dependant on the identity of the recipient (beyond that recipient's location) or the content of the package (beyond that package's size/weight)?
Sure they are: FedEx and USPS delivers the packages only to those recipients faster to whom those packages are addressed by the sender.
Sure they are: FedEx and USPS delivers only those packages faster to their recipients for whom the sender (or the recipient) deemed the faster delivery based on the content of the packages important enough to pay the extra fees.
So, neoteny, the decision-making entity is the customer, not FedEx or USPS (the carrier)? Isn't getting rid of net neutrality about letting the ISPs (the carrier), not the customer, be the decision-making entity?
Your example doesn't seem a good comparison.
The decision for the faster delivery is made by the customer; the decisions involved in effecting the faster delivery is made by FedEx and USPS.
Nope; why would any ISP deliver certain packets faster if not paid for the faster delivery by the customer (sender and/or recipient)?
The equivalent of net neutrality in the snail mail system would be FedEx and USPS being barred (by law) from offering priority delivery for extra fees.
Quite true, but AT&T can pass their naturally higher costs on to their customers. I've noticed that my ISP bill is higher than my Netflix bill, for instance. And they have a comparatively competition-free zone to do it in, given the dearth of choice for broadband Internet access in the US.
Comcast has made this untrue by becoming ISP, cable provider, and content owner/producer: it benefits them less to receive Netflix's packets, when they could be paying nobody for peering by sending customers Comcast's video from within their own CDN, or when they could be watching a channel or service that will pay Comcast's advertisers. Rent-seeking pays off, because now they can simply decide to make a customer's choice to use a competing service more profitable for them.
@Orv
The wildlife refuge occupiers and the Hammonds were two different groups of people and the later did not even endorse the former. Neither group work black hoods or hammer and sickles like Antifa, so of course it wasn't obvious to the media that they were good-guy protesters.
The federal government charged the Hammonds with arson and destruction of federal property for having done nothing more than utilize the same fire-management tools that the government routinely employs. A federal jury acquitted them of most charges save the fire-setting charges (which they admitted to), the judge went easy on them but Obama & Co. appealed and persuaded a different judge in 2015 to impose a mandatory five years each under the 1996 Antiterrorism and Effective Death Penalty Act.
But I'm sure they were planning on being super "neutral" once they built up a bureaucracy around the internet.
"Quite true, but AT&T can pass their naturally higher costs on to their customers. I've noticed that my ISP bill is higher than my Netflix bill, for instance. And they have a comparatively competition-free zone to do it in, given the dearth of choice for broadband Internet access in the US."
They do pass some of those costs onto their customers. But as I explained, it is both an economic efficiency optimization and more fair for them to pass some of those costs onto the networks that are pushing that traffic onto their networks.
"Comcast has made this untrue by becoming ISP, cable provider, and content owner/producer: it benefits them less to receive Netflix's packets, when they could be paying nobody for peering by sending customers Comcast's video from within their own CDN, or when they could be watching a channel or service that will pay Comcast's advertisers. Rent-seeking pays off, because now they can simply decide to make a customer's choice to use a competing service more profitable for them."
While that's probably true, it's a non-sequiter because it has no bearing on any of the issues we're discussing. If you think it does, explain how. I suppose it's possible I'm missing something.
My point is simply that there has been a presumption in the Internet business for decades that if A and B are the endpoints exchanging traffic, the costs and work to move that traffic should be roughly evenly split between A and B because the presumption is that the traffic roughly equally benefits A and B. In the case of, say. Netflix and an AT&T customer, if we assume no money flows between AT&T and Netflix, two things happen:
1) Netflix has much lower hauling costs because they can move their servers to the internet. AT&T can't move their customer to the Internet.
2) Netflix is sending a lot more traffic and AT&T is receiving a lot more traffic. It is more expensive to receive traffic than to send it due to nearest exit.
So unless AT&T charges Netflix for access to its network, AT&T's customer will have to bear a disproportionate share of the costs. Of course, if Netflix has to pay AT&T, they'll raise their rates and the customer will still ultimately pay the costs. The difference is that now Netflix has a more accurate incentive to minimize traffic to cut their costs and the customer has a more accurate incentive to judge how much Netflix is costing them.
The more important point, however, is that the urgency surrounding net neutrality is coming from companies like Netflix and Google who want the government to intervene in these peering decisions that have previously operated as a free market and kept the internet stable and open for decades. There are a few examples where it has not worked, but how few they are and how quickly they were resolved is a testament to the efficiency of the free market. Content providers want a better deal than they got from free and fair negotiations.
Also, the claim that net neutrality is just codifying what has always been the existing practice is simply false. The existing practice has been negotiations for peering pricing without significant government intervention. All the net neutrality proposals that have been supported by companies like Google and Netflix have provisions to change this, and I strongly suspect that's what they're really after.
Thanks Ken, both for providing an assessment of Judge Kavanaugh's opinions within your field of expertise, and for not offering an assessment on issues you don't deal with on a day-to-day basis. The Interwebs would be so much more useful if more people would just shut up about things they really don't know about {or enough more to give their opinions more weight than mine, which is pretty damn rare).
Those Internet opinions show that Kavanaugh is a moron and/or does not understand how the Internet works. They're not television networks, they're more like mail carriers, if you have to compare things that aren't really alike because the Internet and how it works are their own thing. He's basically saying that FedEx should be able to chuck your mail out of the truck if they don't like you, or that your phone company should be able to keep you from talking to people they don't want you to over their lines. Never mind how a lot of people live in places where one ISP or another has an effective monopoly, meaning that if he had his way, the ISPs could basically control a lot of other people's speech. ISPs' "speech" rights > The people's right to speak, apparently.
Besides, I'd bet money that, if an ISP blocked Fox News or something on all their services and the case made it to him, he'd change his tune real quick.
"Also, the claim that net neutrality is just codifying what has always been the existing practice is simply false. The existing practice has been negotiations for peering pricing without significant government intervention. "
—————————————–
Generally, situations that are working well enough when self-governed and/or governed at a fairly local level…aren't improved by federal fiat.
That might better describe the crux of the political left/right disagreement on this issue and be a better lens through which to view internet regulation…rather than "free speech".
The purpose of the political left is to advocate for the marginalized, dispossessed and powerless but that doesn't mean that wherever the political left applies leverage this situation actually obtains.
@mercury, part of the point you miss is that netflix is paying for the pipe on their end. I, along with a multituded of others, is paying for the pipe on the other end. Comcast, Charter and the bells are in the middle having contracted to carry requested and provided traffic. Why shouldn't they be neutral carriers? After all, both the providers of content, and the consumers of content (and at many times we're both, like here) have paid for carrier service. We don't buy editorials as a general rule. There are filtering services that some pay for, more power to them.
But noone, not me, not you, and not google or netflix or facebook is getting a "free ride" because we all pay the last mile. And the fed, states, and local governments subsidize the pipes in place with taxpayer money. So it's not like any of the carriers have footed the entire check of the infrastructure that they are making so much money renting to the likes of us.
@Mercury
The point is though that they are not working well without regulation. People have had their internet service disrupted due to slap fights between ISPs and content providers et al
@neoteny
And I pay my ISP a pretty packet for 400 Mbps instead of 100 Mbps. They don't even properly deliver on that.
"The point is though that they are not working well without regulation. People have had their internet service disrupted due to slap fights between ISPs and content providers et al"
Sure, very rarely and for very short periods of time. That happens in free market negotiations where one company wants to extract money from the other and one company wants to pay as little as possible. It's worked remarkably well for decades. While net neutrality has been dishonestly pitched as just codifying what has been the standard practice, in reality it's the opposite — replacing free market negotiations that have served us remarkably well for decades with government regulations.
There ought to be a pretty high bar to the claim that increased regulation of "fairness" will make things better, just showing that the existing system hasn't been perfect doesn't cut it.
"part of the point you miss is that netflix is paying for the pipe on their end. I, along with a multituded of others, is paying for the pipe on the other end. Comcast, Charter and the bells are in the middle having contracted to carry requested and provided traffic. Why shouldn't they be neutral carriers? After all, both the providers of content, and the consumers of content (and at many times we're both, like here) have paid for carrier service."
Okay, so say there are two computers, A and B. A is in San Francisco and B is in New York. They are exchanging traffic. Say that due to the nature of the traffic and the routing technology the Internet uses, A's ISP is doing almost all of the long haul from San Francisco to New York. Why is it unreasonable for B's ISP to say to A's ISP that if the costs are going to fall asymmetrically, there needs to be a settlement to compensate them for doing more work but getting the same benefit?
That is how the internet works today and how it has worked for decades.
Sure, the system you have suggested is not an unreasonable system. The system that the internet has actually used is free market negotiations between both ends to establish how the costs of the traffic will be split. In cases where costs fall asymmetrically, the party with the lower cost has agreed to pay money to the party with the higher cost. Where the parties have equal cost, the peering has historically been settlement free.
This incentivizes both parties to reduce the costs that they impose on the other party. That seems like a good thing to me.
Net neutrality seems to be a fundamental change to the internet backbone's economic model.
At what point do you want to discuss the element of the equation that you readily ignore: The ISP is selling an assessed speed of data delivery to the end consumer, and the throttling of certain data to "enhance negotiation powers" provides a degraded experience that fails to meet the contractual obligations to said end consumer.
Who do you think was suing the ISPs?
@David Schwartz
"It's all fine, my water only occasionally runs brown and smelly but it always clears up after a week or two."
Not to mention the ISP's Flint style initial denial of any issue, followed by user and advocacy groups showing that something blatantly is wrong. Now, unlike Flint that has generally resulted in a quiet rollback of throttling by ISPs (several times after they managed to extort what they wanted) which is better than the alternative. Not in any way ideal though.
One thing that is disspointing about content providers and internet companies is how they surprisingly quickly change their tune about net neutrality once they have reached an arrangement with ISPs which allows them privileged access to their consumers and hence can kep their competitors out as well…
Have you tried running one of the many net speed tests out there? My ISP delivers within 10% of the nominal (download) speed (just now); of course they contract only up to that nominal speed.
On the other hand, if the sender (server) can't push out data fast enough, then there's no way for the ISP to "properly" deliver at the nominal download speed.
@neotany
They do, and on principle I am all for that sort of free market solution. Where people have legitimate concerns is the past conduct of ISPs and the potential for abuse due to the complexity of the systems involved.
It's reasonable to charge extra for Priority Mail. It's reasonable to charge different rates (either higher or lower) for high-volume mailers, such as Playboy Magazine. It's reasonable to refuse to continue to do business under previous pricing schemes if, for example, it is shown that the bulk mail rate for advertisements doesn't actually cover the costs associated with mailing everything. It feels a lot less reasonable if USPS starts deliberately sticking all the Playboys into the oldest, most unreliable trucks, sent along needlessly long, indirect routes. It feels even less reasonable if if they lie to Playboy as a negotiation tactic, denying that they're deliberately slowing Playboy and other magazines, implying that all mail is slowed because you can't afford to build/maintain enough trucks to keep up with demand under previous pricing schemes. It begins to look more like fraud, and perhaps breech of contract, if they also deceive the subscribers, telling them "Oh, you didn't see Miss March until the end of May? Sorry, we have aging infrastructure, and it's just bad luck that the stuff mailed by the guys with the deep pockets took four times as long to arrive as the stuff from the local library."
These are things that can–and generally should–be dealt with through contracts and the civil court system, but it would be disingenuous to pretend that ISPs aren't in a unique position to make this incredibly difficult. Anybody can wander by a USPS distribution center (in theory) and observe that the guys in charge are deliberately putting certain magazines in the worst trucks, and having them tag along with a handful of letters taking a long, indirect route, while other magazines get in the shiny trucks taking the fastest routes. Fewer people have the knowledge to analyze and understand network traffic, and it's much harder to even access all this information unless the ISPs volunteer to share it, unaltered. Add on the fact that in many regions ISPs have a local monolopy and that ISPs are the gatekeepers to the most commonly-used tool for people considering lawsuits, and you can understand why "contract negotiations and the tort system" aren't reassuring to some folks.
This isn't to say I favor a regulatory solution over a free market one–I don't. However, the "Priority Mail" analogy is an incredibly imperfect one. Keeping the ISPs honest the way we keep Fedex and USPS honest simply isn't possible given the current level of consumer sophistication, current industry norms, and existing non-government watchdog groups.
In the absence of net neutrality, I am okay (in principle) with "net neutral" internet being a premium package, and with content providers who use a ton of bandwidth somehow having to pay more because they use more. However, there has to be a way for the subscriber to know for sure that the ISP is holding up their end of the contract. If I pay for net neutral internet, and Comcast throttles Netflix because it's time to negotiate next year's contract with Netflix, I really have no way to know unless Netflix volunteers that information. With a lot of complex network analysis, maybe you can make a compelling case that "It really looks like everything is working just fine until we get to Comcast and everything slows down, but only for Netflix." At which point the best case scenario is that a favorable judge allows you to file suit, and a few months later Comcast is forced to turn over the incriminating documents on discovery
To go back on the topic of Kavanagh, I'd be interested in another assessment by Popehat of what all the prior statements now being dug up by people are potential cause for concerns or can be allayed slightly like his comment about indicting a sitting President. The storm about his paper trail from both the left and the right has really blown up. I'm sure a lot of it is hot air but it is difficult to get proper context in the current febrile atmosphere.
It's real interesting how it shows up the schism on the right of the Republican party. Kavanagh is about as conservative as it gets and very right wing on one axis (corporate rights etc) but to many Republicans is too much in the old school Republican mode rather than the radical bomb throwing mode. I can definitely see Kavanagh overturn several decade long precedents but more around removing restrictions on corporate power, striking down the constitutionality of regulation, and curtailing the power of government further, but less likely than some other candidates to overturn abortion rights and let religious convictions guide his decisions on the bench (though he apparently made some statements about how separation of church and state is a misreading of history…).
@neoteny
Yes, that is from a speed test. A neighbourhood in one of the US's international metropolises just happens to have a bit of an internet dead spot. Anecdote is not data so I don't know how much of an issue it is in New York more generally but it is certainly annoying to me.
@IForgetMyName
Just to add, going through the courts to get a routine contract dispute sorted is hellishly expensive, very slow, and for class actions the remedy passed on to consumers generally does not make them whole.
It's great to know that after half a decade I get a check for $40 after having half the stuff I wanted to look at throttled in the meantime.
The regulation in place made the rules of the playing field clear, lessened the burden on consumers, and shifted the focus of enforcement from costly litigation which only ever kicks in years after harm was done.
I should also add that if you do want to take your dispute to the courts as a internet services consumer you most likely cannot do so due to the mandatory arbitration clause which is nearly certain to be in your contract. So even attempts at litigation will most likely get you nowhere.
Are you saying that the law as a state monopoly fails to deliver satisfactory solutions to disputes between citizens (and corporations formed by them)?
It was GrammaticallyIncorrect who brought up FedEx and USPS first:
Sure you do: your Netflix streamed show is choppy or unsatisfactory some other way due to restricted bandwidth. You let Netflix know this (after all, you're payin Netflix to beam down to you a satisfactorily enjoyable stream), then Netflix can figure out if the problem is on their end (i.e. they're unable to pump the stream into the net fast enough), or the culprit is Comcast: if it is they who fail to transmit the Netflix stream packets to you fast enough (although they're catching the stream packets from Netflix fast enough).
That aspect of net neutrality has been done to death and is well understood. From the public conversation, you'd think that was what net neutrality was really about. It's only when you read the actual rules and look closely at the negotiations that you see that it's really about peering, not throttling. For example, the reaction when California took the peering part out of their proposed net neutrality rules.
This is always the argument for increased government regulation — the free market is imperfect and regulation can only make it better. Why are the people who should be suspicious of that kind of argument so on board with net neutrality. Hmm, maybe it's because what they really want is to get a better deal from their partners than the free market gave them?
@Mercury
Wait, wait, wait. Let me get this straight. So Netflix has set up servers to serve the content, sorted out licensing rights, lined up a whole slew of things to ensure that a sweet high quality video stream of the great comedy series I want to watch reaches my ISP, who I pay to get that content from that point to me. Instead of doing that they chop up and degrade the stream.
You're saying that at that point I should be pissed at Netflix and complain to them and not my ISP?
Said ISP also being the only game in town?
@David Schwartz
Also, ISPs serving end users can bleat as much as they want about imbalanced peering arrangements, I don't care. That's the business they got into as soon as they started selling consumer lines. Of course more traffic is going to flow into than out of that kind of network. That's what users pay for.
I'd have more sympathy if it was the Tier 1 networks raising hell rather than Verizon and the like since they are the ones delivering that content and don't have as much access to sweet sweet consumer and government subsidy dollars.
Funny think in that regard, Centurylink rather changed its tune about regulation after acquiring Level3 a Tier 1 network provider:
https://www.fiercetelecom.com/telecom/centurylink-says-fcc-should-continue-to-oversee-interconnection-agreements-following-net
Rather pathetically they were floating regulating everything under Title I as if that had not been specifically ruled out by the courts (hence being regulated under Title II).
A couple of year's earlier when it was just a consumer ISP it's line was rather different:
https://www.fiercetelecom.com/special-report/centurylink-s-jones-net-neutrality-special-access-and-500m-connect-america-fund
Ahh, but there we have a choice. And given your argument that the sender is making the choice, Netflix does not have any other viable way to get the content to my TV other than Comcast, who controls the pipe into my house. So there is factually no choice to be made.
@GrammaticallyIncorrect
I doubt very much that whatever actual bad behavior ISPs have engaged in is at a level of magnitude that justifies the level of government control and bureaucracy that full-on Net Neutrality regulations would inevitably blossom into.
As usual, the standard by which this situation should be judged isn't utopia, it's whatever viable alternatives are available, including increased regulation, with all the trade-offs, warts, downsides and possible unintended consequences.
All that said, and to get back to the actual core issue here, it's likely that "free speech" isn't actually the best lens/template to view, argue or decide this issue.
Which choice do you mean? The choice between FedEx and USPS, or the choice between economy/regular mail and priority (faster) mail?
@neoteny
Certainly a much freer choice in logistics provider as you don't have a gatekeeper demanding a toll on the last mile of the road to vans who are not their own. There is nothing preventing the vans actually getting to me other than failure on the logistics' companies' part. Well, or me being located in the literal wilderness.
In addition to that you also have a government provider of services to ensure full coverage at a maximum price across the entirety of the US. You don't have mail deserts like there are broadband deserts.
Now I personally do not think that as it stands the government should set up their own universal service in the case of broadband, the pushback would be too big and we can get most of the way there without launching a giant government infrastruture project (to be discussed in the upcoming Infrastructure Week pushed for by the White House!).
@Mercury
There I would firmly beg to disagree. In my opinion it is the least burdensome way to safeguard the interests of all stakeholders. The previous regulatory regime was not a utopia but closer to one then where we are moving to now.
You also say "would ultimately blossom into" but that did not happen over the decade and change. Not to mentioned that we have just witnessed it moving into the wild west, ad hoc and post hoc remedies only zone instead.
The lobbying has been very strong here and industry interest and concerns always were very strongly considered during the entire process. It just that they weren't able to have everything they wanted to before and now they have.
A much freer choice for whom? When the USPS ensures full coverage at a maximum price across the entirety of the US, then those customers where it is cheaper to provide (regular) mail service subsidize those customers where it is more expensive to provide the same service — and those customers don't have a choice in such a subsidization.
Every entrepreneur is a gatekeeper of the resources owned by them. I gather that you're a lawyer: you're a gatekeeper to access to your lawyerly services which are owned by you. You decide to whom you provide what of your services (which involve resources owned by you) at what price.
But the giant government infrastructure is already there: it is the government itself, i.e. the legislative, executive and judicial branches. After all, "get[ting] most of the way there" means making, deploying and enforcing government regulation, which involves all three branches of government.
Furthermore, you've explained to us how the judicial branch of the government doesn't even work (in a reasonable enough manner): considering that, it is hard to see why do you think that it is possible to "get most of the way there" through government regulation.
On Net Neutrality.
I firmly believe that lack of competition in the ISP space is why NN is needed. For example, I have one, and only one choice of broadband provider in my city – there is a DSL provider, but up-to 10Mbps isn't broadband. If they decide to start throttling certain content or decide that I have to pay more to get to some services I have no choice but to accept that becasue I need the Internet just as much as I need phone service and mail service, honestly I need it more.
Are you suggesting that Kavanaugh would be open to an anti-trust angle on Net Neutrality? Because to me that's really the crux of the matter – If there was actual competition then I'd have a choice. And that's without going into price gouging and poor customer service due to lack of competition.
"Also, ISPs serving end users can bleat as much as they want about imbalanced peering arrangements, I don't care. That's the business they got into as soon as they started selling consumer lines. Of course more traffic is going to flow into than out of that kind of network. That's what users pay for."
They don't though. It's companies like YouTube and Netflix that are bleating about it. That's why they're pushing for net neutrality.
There's no reason to think ISP's aren't willing to do the thing they signed up for — bear half of the costs of the traffic their customers originate and terminate so they can interoperate with anyone else who is also willing to bear half of the costs. As I have said many times already, that has been the norm on the Internet for decades.
AT&T isn't asking to change it. Verizon isn't asking to change it.
"I'd have more sympathy if it was the Tier 1 networks raising hell rather than Verizon and the like since they are the ones delivering that content and don't have as much access to sweet sweet consumer and government subsidy dollars."
Imagine if the norm in the package delivery business was that both senders and receivers paid companies to send and receive packages on their behalf. And imagine further that the contracts between shipping companies specified that reasonable package delivery costs would be split down the middle between the sender and the receiver with settlements made as necessary to adjust imbalances. This is, more or less, how the Internet works today.
Who would be pushing for the government to change the business and revenue model such that each side always bears their own costs?
The rule has been pretty simple and fair — if you do half the work, then you get free peering. If you do less than half the work, then you have to pay. If you do more than half the work, you get paid. This has incentivized networks not to develop in ways that impose unnecessary costs on their peers. It has worked very well with very little government intervention for decades. Now, there's a sudden push (coming from those who financially benefit from the change) to upend this with government intervention.
Where's the skepticism?
But… Why? Netflix is no longer in control here.
As it is TODAY Netflix is suffering from things slowing down when too many people watch Netflix. Because Netflix slows down too. Netflix doesn't get in free and clear while everyone else slows down. In fact, as an example, Netflix is terrible, because Netflix may take up so much of that bandwidth, but they're an HD streaming site, which means they're the first to suffer as well. Specifically BECAUSE the companies aren't allowed to distinguish between Netflix and anyone else.
Indeed you're assuming only ONE of many possibilities is the only one that'll happen. One which assumes, of course, that Time Warner and Comcast are purely altruistic entities.
And in fact, what exactly is it that you're expecting to happen? Time Warner and Comcast slow down Netflix because of how much it takes? Netflix is used by such a large number of people and requires such a large amount of bandwidth (since it's HD video) and thus takes up a large amount of bandwidth. When my net gets slow only Friday nights, it's because everyone's watching Netflix, as you say. So, what, they should be… Unable to watch Netflix? Because too many people like it? (Or, more likely, people would have to pay more on top of their $10 a month to Netflix…)
You can't make things worse for a company like Netflix, without making it even worse for the consumers. Netflix is already incentivized to shrink its bandwidth usage because of those times the net gets slow on Friday nights, which mean that Netflix ALSO gets slow. We're punishing Netflix in a way that primarily punishes the consumer, by making the Netflix product worse. They're already being incentivized.
Slowing them down would either mean they need to pursue the same R&D projects they're already pursuing, but it becomes more important… Which means they have to hire more people, and the consumers need to pay more to them, and thus it's more expensive for us. Or potentially the other choice is done, and they get preferential treatment, which means companies that AREN'T Netflix that may be better get punished and things can't improve from where they are.
Which of course doesn't count the very likely possibility that Netflix becomes a service consumers have to pay Verizon and Comcast extra for.
Can someone correct my strained metaphor, I'm not 100% clear how transfer on the internet works.
In the net neutral system, where the ISPs are fedex and Netflix is one of any of a thousand shippers (albeit the biggest..say, amazon), and the fedex truck comes every day, then consumers are essentially paying for the size of their mailbox and the size and speed of the fedex truck.
So a consumer may pay for 400 packages per day and they may come from various places, but they are paying a consistent rate for those packages to travel at a fixed speed to their house. So say the consumer pays $100 to fedex, but due to distance and coverage, a good leg of the journey is covered by UPS. UPS does this because fedex and ups have assessed all the traffic that is reciprocal across their networks and have free market negotiated fair pricing for each to use each other networks. Presumably the balance of that trade reflects an equilibrium between who has a longer leg of the journey and who has access to more customers?
So now there is no net neutrality. Fedex now goes to amazon and says, "hey, your whole business model is predicated upon getting goods to consumers quickly and though i've previously allowed you to get good or equal pricing per package per mile per day, i'm going to charge you more because i have market power over you."….or…."hey amazon, i'm going to charge you more to send packages because you're using too much traffic, but really, i've just purchased walmart and id rather sell my own packages to your consumers than let you sell yours at your current profit margins"
It seems like this shifts the choice for which 400 packages were delivered each day from the consumer to the shipper. And the only way for the consumer to pay more to get the product they want delivered is to pay and additional rent to the shipper?
Why is it better to shift the choice of what is delivered from the consumer to the shipper?
Don't toll roads (a darling of libertarians) work this way? Amazon pays per axle per mile. The consumer orders what they want and pays a price that reflects amazon's cost to ship. The toll road doesn't get to ask the driver if they are an amazon or walmart truck and charge them a different rate accordingly.
"You can't make things worse for a company like Netflix, without making it even worse for the consumers. Netflix is already incentivized to shrink its bandwidth usage because of those times the net gets slow on Friday nights, which mean that Netflix ALSO gets slow. We're punishing Netflix in a way that primarily punishes the consumer, by making the Netflix product worse. They're already being incentivized."
I don't think that's true though. If you make things worse for Netflix, Netflix will spend money to fix things. This will mean Netflix has to charge more for their services which makes great sense because this is to cover expenses that Netflix is causing. This will cause some of Netflix's customers to either stream less or perhaps consider other streaming services that cost less either because they use less bandwidth, use bandwidth more efficiently, or design their networks to impose lower costs on their peers.
"Which of course doesn't count the very likely possibility that Netflix becomes a service consumers have to pay Verizon and Comcast extra for."
Why shouldn't Netflix just charge their customers more? Why upend the economic model the Internet is based on and weaken Netflix's incentive to reduce the costs they impose on their peers? Especially since we know that when ISPs do charge extra for Netflix, they'll be accused of trying to tax a competitor and more government intervention will be demanded to fix the problem created by this proposed government intervention.
Thank God we'll have someone on the SCOTUS willing to stand up for the right to be, say, a racist piece of shit. Loud and proud fuckweasel of all stripes, rejoice! The fundamental right to be a shouty asshole is the core of our entire civilization, and is the only thing that really constitutes our right to free and open expression, unlike (checks notes) those stupid voting and civil rights laws Kavanaugh's going to wipe his ass with.
I actually would prefer if the federal government had broad discretion to regulate campaign financing. I acknowledge that outlawing privately funded campaigns for public office would definitely be a restriction on speech. But it would be a content neutral restriction on speech. Those I don't mind. That being said, having someone who takes a narrow view of what speech is and is not defamatory on the Supreme Court is much more important than restricting campaign financing. With the internet + social media + mass surveillance, everyone's opinions are now on the public record. I don't want to be sued for defamation for implying that some guy on 4chan takes giant transwoman penises in the butt on purpose.
Yep, the right to say things everyone would wish you would go to jail for saying is pretty darn important to a free society. People were jailed (or killed) for saying "Hey, maybe black people are actually, you know, PEOPLE, and not property?" or "What if we let consenting adults do whatever they want to each other, regardless of their respective genders?" or "What if, like, we didn't have property and money and we all just shared things?"
And if your reply is, "Well, sure, but it's not MY forbidden ideas I want banned, it's THEIR forbidden ideas!", I assume you are a registered and voting supporter of the Leopards Eating People's Faces Party, as you're quite confident they'll never eat *your* face.
Besides, the social utility of letting racist fuckwads self-out is high. It's hard to pass a law forcing people to admit they're scum (as it turns out, scum often lie about being scum – fancy that!), so, why not actually encourage then to self-identify, so we can exercise our rights of free (dis)association and shun their bigoted asses?
(And anyone saying, "But I'm a racist, and I'm not scum!"… well, there you go. Scum lying about being scum. "Racist scum" is redundant. It's like "shrimp scampi" or "tor hill".)
And yet, in Verizon New England v. NLRB (826 F.3d 480), Kavanaugh enthusiastically embraced an arbitrator's definition of "picketing" as, I kid you not, encompassing people putting signs in the windows of their cars, all in the service of finding that the relevant union had waived its members' rights to free speech. (The union, of course, said that this was absurd, because it was absurd.)
No, I'm afraid that the guy is a partisan fascist hack, and just as with Gorsuch, where people who said "this guy is obviously a partisan fascist hack" were unjustifiably poo-poohed by various legal-academic scolds who insisted that of course he was a fairminded and upright jurist, it's going to feel really shitty to say I told you so in two or three years.
@neoteny
Fun fact: Many ISPs fast-track data to common speed-test sites (or have done so in the past). This artificially inflates their reported data transfer rates. That's why Netflix set up fast.com as their own speed test site to show the rate you'd get from Netflix. It can't be inflated by the ISP without the ISP providing optimal service for all Netflix traffic.
That's very interesting. Went to fast.com, ran their tests and got 60% of my nominal speed. Then went to speedtest.net (as recommended by fast.com) and got 115%. Went back to fast.com, and ran it several times, getting these (rounded) values:
70%
90%
90%
110%
115%
It looks like my ISP watches out for fast.com and improves the transfer rate on repeated runs.
And how is that working out?
The people are self-identifying, the guy in charge is sympathizing, the party in charge is trying to buy their votes, and no one is disassociating and shunning their bigoted asses.
Net result: their ideas are becoming normalized. Genocide and bigotry are winning in the "marketplace of ideas," because people are stupid and awful and will buy any idea that makes them the hero of the story.
When you have literal Nazis marching in the streets, and the government's only action is to table a law to penalize people for trying to impose consequences on the Nazis… Maybe you've reached a failure state of free speech absolutism.
@Richard: Surely the solution isn't to give more power to restrict speech to the very group that used its existing power to try to penalize people for trying to impose consequences on the Nazis.
So, so true.
I did five genocides before breakfast this morning!
I guess by "impose consequences," you mean murder? I'm not really against anti-grievous bodily harm laws myself, but you do you.
Ah, those lovely miscomparisons of Net Neutrality to other delivery systems.
Do we really want to compare it to a postal service? Ok. The internet is like the Post Office, or UPS, or FedEx:
You pay for delivery of desired goods (1's and 0's in the case of the internet)
You pay more if you want it to get there faster (priority shipping, or a bigger bandwidth)
Things slow down a bit if there's unexpected load on the system.
The people, through taxation, payed for the lion's share of the infrastructure to sustain the deliveries.
But it's UNLIKE those services, because:
With internet, you pay for shipment AND delivery. The people who send the goods have to pay. And the people who receive the goods have to pay.
The internet providers claim endlessly that they provided all the wires to move the 1's and 0's. The post office never seems to claim that it built all the roads needed to move the mail.
With parcel delivery, you have meaningful competition: in most areas, you have at LEAST two or three package delivery options that will give similar results. In most areas, you have only ONE internet option of any real value.
And without net neutrality: the internet provider opens up your package, looks at which 1's and 0's you asked for, and adjusts how fast they get to you based on the content. The post office, FedEx, etc. almost NEVER do that, and when they do it's because you're shipping hazardous materials that are required to go via a different mode of transport.
Now, there HAS been a lot of whining about 'peering', and how it's being ignored. Well: it SHOULD be ignored. It's literally not the complaint. The complaint is that the big internet providers are throttling traffic based on what you request – that's what people learn is happening, and what they sue over. That's what's frankly dangerous – internet providers snooping on which 1's and 0's you ask for, and determining how fast you get them based on which you request, rather than providing the fastest speed they're capable of, up to the bandwidth you agreed to pay for. Peering is part of the new internet backbone – it's NOT what net neutrality is about right now.
Those bringing up 'peering' and ignoring the actual issue are doing just that – they're ignoring the actual issue, and trying to distract you with technicalities. The companies already get paid at both ends for data transmission – now they want to get paid a third time, to make sure nothing bad happens to those 1's and 0's on their way to your computer.
Sol asks the right question. On "classic" free speech issues, Kavanagh is no different from any other inferior court judge capable of understanding and doing what he is told — no better and no worse. Where he matters is in the commercial/regulatory lines of cases, where many sensible people who are fiercely devoted to classic free speech think the Supremes have taken a wrong turn and applied the first amendment to matters where it and its core values aren't really implicated, often as a fairly transparent cover for hostility to the underlying regulation. If people want to have an honest fight over the underlying regulatory issues — as to which I express no opinion — then by all means have at it. But I and many others think this First Amendment Lochnerism is a mistake.
That is simply not true. Peering is the actual issue. Traffic prioritization is a smoke screen. A ban on traffic prioritization won't do a thing if peering is not regulated by the government.
Say AT&T wanted to degrade the performance of YouTube on their network. They could accomplish this by de-prioritizing traffic to YouTube. But they could accomplish precisely the same result by reducing their peering with YouTube.
If the rationale is to prevent ISPs from causing their customers to suffer poor performance when exchange traffic with content providers that compete with services the ISP also offers, it *must* also regulate peering interconnections or it won't change anything.
Obviously, YouTube would love to have negotiating leverage when they need more bandwidth to AT&T. Net neutrality is really about stripping ISPs of that negotiating leverage so that content providers won't have to minimize the costs ISPs bear. And, again, this is a serious change to the revenue and interconnect model that the Internet has used for decades.
This is complete nonsense and could only be written by someone who is entirely ignorant regarding the way the internet has operated for decades. If you genuinely believe this, somebody has lied to you or you've just assumed it.
Consider two computers with different providers, one in New York and one in California. Say one computer is sending a lot of traffic to the other. The operators of these networks can hand off that traffic in New York, in California, or somewhere in the middle.
Sane traffic engineering prohibits varying the handoff point routinely. And often choosing an intermediary point raises the total cost for both networks. It makes the most sense to hand off this traffic either in New York or in California.
But how do we choose where to do it? If we hand it off in California, the provider in New York is doing more than their fair share of work. If we hand it off in New York, the provider in California is doing more than their fair share of work.
Every reasonable solution is going to result in one provider doing more work than the other. And absent some way to charge each other, each provider will have an incentive to push as much of the cost onto the other provider as possible. That's not a sane way to build a network and so that's not the way the Internet has ever worked.
But it's interesting to see this false narrative being pushed being companies like YouTube and Netflix that have historically done less than their fair share of the traffic hauling and have historically paid settlements to the providers they impose these costs on. Obviously, they'd love to have more negotiating leverage.
I second @Lizard's question about the incitement case.
How can generic Al Qaeda podcasts pass the "imminency" test, if between hearing them and carrying out a terrorist attack, a listener would have to invest plenty of time and planning on their own, using their own ideas and decisions?
I thought (likely based on previous Popehat posts) that "incitement of imminent lawless action" is supposed to exclusively apply to situations of the kind where a lynch mob forms and gets so worked up by the words of the speaker in front of them who's stoking them up, that for a brief moment, his words "override" their own free-will decision-making, and cause them, right then and there, to charge into criminal action without having made a conscious decision to do so?
Can someone please clarify this?
@foog
You could have made your point without demonstrating it personally.
@Mercury
"Please forgive, during these trying times, the errant Martian who might be having trouble remembering which political faction is the crazy one."
Both of them. Anyone that thinks otherwise is seriously deluded or delusional. Both parties are corrupt to the core and the recent election results show just how fed up the general voting public is getting with "business as usual", "the establishment", and corporate interests buying laws and regulations that pervert any attempts to reign them in. The party leaderships are still in denial over this (both Republican and the Democrats) and both are doing everything they can to limit populist uprisings in their own parties (evident with Bernie Sanders' very strong showing against Clinton and in extremis with Trump's soundly beating party favorite sons and ultimately wining the presidency).
The problem with Mr. Kavanaugh isn't that he has opinions – everyone does, and they're welcome to them – it's that he's inconsistent with them.
So the White House can bar scribbling on their sidewalks as a protest, while the National Parks cannot? Um, hello there… There are other inconsistencies just in Mr. Ken White's relation of cases, and oddly enough, they're all in favour of private profit-seeking enterprises. How strange.
Jon (fD)
I wonder what is stance is on all the other amendments.
Bit concerned about what this scotus pick may of said about the Nixon Watergate tapes SCOTUS court ruling about releasing them
Would that have any indication as to his beliefs as to indicting a sitting President?
Care to elaborate?
@David Schwartz.
I hate to break it to you but more often than not the "long haul providers" or "guys in the middle" are not AT&T and Comcast. They're companies Cloudflare and Level3 or Tier1 network providers. Interestingly enough they're all strong proponents of net neutrality. Based on that alone your argument falls flat.
I'm more interested in why edge providers can get away with not being liable criminal acts conducted over their service but somehow they're allowed to be content editors according to Kavanaugh's reasoning.
So in Kavanaugh's view ISPs are editors?
Would that not make them co-conspirators in drug, sex, arms, and all sorts of illicit-trafficking? You can't have it both ways: either you're an editor, and responsible for the content, or you're not.
It's laughable. To use an analogy Kavanaugh would probably understand, ISPs are no more editors than the paperboy who throws the paper in your yard every morning, because that's exactly who they are: the delivery person, not the editor.
@Theo
I'm not sure why you think that conflicts with my argument. The purpose of my argument was to show the technical ignorance behind the arguments I'm responding to. Of course the long haul networks don't care who pays for their services. This is a fight between content provider networks (like Google and Netflix) and end customer networks (like AT&T and Comcast) over how their costs should be split. Historically, it has been roughly 50/50.