Net neutrality and the US Constitution

It is said that nothing is certain except death and taxes. It may be in order to add to that chestnut "federal litigation to negate any progressive legislation enacted by the State of California."

On Oct. 1 Gov. Jerry Brown signed Senate Bill 822, enacting the California Internet Consumer Protection and Net Neutrality Act of 2018, that will protect users in California from interference with their unencumbered use of the internet, protections recently abandoned by the Republican majority on the Federal Communications Commission. That same day the Department of Justice in Washington filed suit to block the California law from taking effect.

Before the recent FCC action, the policy governing the internet protected it from interference by major internet service providers (e.g., AT&T, Spectrum, Comcast). The public has become accustomed to internet access that allows them to use any sites and services they like, without restrictions by their ISPs. The policy of net neutrality, which guaranteed that all internet sites and services were on a level playing field, was adopted by the former Democratic majority on the FCC in 2015, and was supported by universities, libraries, public health organizations, and major civil rights proponents like the ACLU and Electronic Frontier Foundation. Practically the only dissenters from that policy were the ISPs themselves. The FCC, taking the position that it had only limited authority over the internet, in 2017 repealed net neutrality. California's law would assert that needed authority.

If the California law is derailed, the opening salvo against a free and open internet may appear trivial. ISPs may charge subscribers a premium for unthrottled access to streaming services like Netflix. Subsequent steps might be more serious. They may include data caps, limiting consumption to certain services to monthly maximums. ISPs may "zero rate" their own preferred services. ISPs may partner with (or promote their own) video streaming services by not counting use of particular sites towards monthly subscriber data caps. ISPs that also provide cable television service may steer users away from internet-based TV by charging a premium for access to those sites.

Without net neutrality -- with the power to "unbundle" the internet -- ISPs gain new tools to extract profits from consumers. À la carte pricing on the internet will lead to greater profits for ISPs, at the expense of consumers. It will also shift profits away from internet properties like Netflix, Google and Amazon, toward the ISPs and their associated services.

The real horror, though, is that when ISPs are not required to treat all data alike, they will have the right to put some sites in the "fast lane," others in a slow lane, and block some from the internet entirely. They will have the power to censor. Your internet provider can decide whether it will allow you to access The Nation or the National Review, the New York Times or the Times-Gazette.

California's position, and the reality, is that net neutrality is not radical overregulation, but common sense employed in the public interest. ISPs should not hold the keys to the kingdom, and net neutrality means that they don't. Without net neutrality rules, the default technological reality (that ISPs can censor what they like because they control the last mile of the wire) means allowing a few large corporations control over our access to one another and the rest of the world.

The conflict between California and the Trump administration is but one more area in which the conflict raises issues of federalism under the U.S. Constitution. The Justice Department's release announcing its suit argues that the internet is interstate commerce, to be regulated by the federal government under the Constitution. The California law recites the state's "inherent police power to protect and promote the safety, life, public health, public convenience, and general well-being of society," increasingly depending on "and open and neutral" internet.

Other disputes between the state and the national government are ongoing and represent deep divisions. California has strongly objected to the administration's immigration policies, enacting legislation denying cooperation to federal immigration law enforcement. Federal efforts to question the legality of these efforts have been largely unavailing.

Similar disputes exist with respect to policies to combat the effects of climate change, a global phenomenon which the administration minimizes or denies. These issues include regulation of all emissions from polluting sources, and requirements of increased gas mileage of cars and trucks.

Disagreements bleed over into foreign policy, where the administration's withdrawal from the Paris accord on global warming impelled the California state government to insert itself into the international scene as an American voice.

These disputes (and others) involve fundamental constitutional issues of the power of the federal government and the rights of the states as sovereign entities. Many of them will be eliminated by a change of administration in Washington. But there is concern that once the major ISPs cement their grip on the internet, it may be a grip extremely difficult to release.