INSUBCONTINENT EXCLUSIVE:
DC Circuit Court Judge Brett Kavanaugh has been nominated for the position of Supreme Court Justice, and on this occasion I think it
warranted that we revisit in detail the sound intellectual thrashing this man suffered at the hands of his colleagues just last year on the
topic of the internet and net neutrality
Because Kavanaugh was very, very wrong then and gives every indication that he will take his ignorance unapologetically to the highest court
in the land.
To set the scene: In 2015 the United States Telecom Association sued the FCC, alleging the Open Internet Order that passed
earlier that year, establishing net neutrality as we know it — or rather, knew it — was illegal.
This highly watched case was heard late
in 2015 and the decision was issued six months later, in June of 2016
DC Circuit Judges Srinivasan, Tatel and Williams ruled against the telecoms, essentially finding that the FCC was well within its
jurisdiction in establishing net neutrality rules to begin with, and also that the rule as written was lawful.
Unsatisfied with this ruling,
the USTA petitioned to have the case reheard &en banc,& meaning with all active circuit judges present
This petition was denied, primarily because the Open Internet Order was by that point in peril of replacement, and new deliberations would
as likely as not soon be rendered moot.
But two judges had dissenting opinions to bruit, and so the court published them alongside the
denial — though unfortunately for them Srinivasan used the same opportunity to demolish their arguments
It would have been better for them, in retrospect, if they had remained silent, rather than raising their profound ignorance like a dirty
flag to be mocked and pointed at forever — as we do here today.
I covered this disaster in less detail then, because it was only one case
and news story among many having to do with net neutrality, and having no official consequences (the motion, after all, was denied) it was
only worth touching on in brief
But now, with Kavanaugh ascendant, I feel it is important to resurface his late folly as evidence of his unsuitability for the position to
which he has been nominated
His dissent deeply misinterprets multiple Supreme Court decisions, demonstrates a profound lack of understanding about how the industry
works and produces absurd results if taken to its logical conclusions.
I&ll present Kavanaugh arguments in good faith, since they were
offered that way, and then summarize their point-by-point demolishment by Srinivasan, the FCC or common sense.
Wrong on
jurisdiction
Kavanaugh first argument is that the FCC rule is illegal to begin with because it does not have authority to issue it
He cites what he calls the &major rules& doctrine, which is that an agency like the FCC requires clear and explicit permission from Congress
to issue &decisions of ‘vast economic and political significance.& &
This makes perfect sense — there have to be limits so serious
questions of policy aren&t defined by a small group of commissioners
He writes:
If an agency wants to exercise expansive regulatory authority over some major social or economic activity®ulating cigarettes,
banning physician-assisted suicide, eliminating telecommunications rate-filing requirements, or regulating greenhouse gas emitters, for
example&an ambiguous grant of statutory authority is not enough
Congress must clearly authorize an agency to take such a major regulatory action.
Congress has never enacted net neutrality legislation or
clearly authorized the FCC to impose common-carrier obligations on Internet service providers.
As this is primarily a question of authority
and precedent and not technology, I won&t go too into detail here
If you&re curious, this article goes into the various court and agency decisions that led to the 2015 rules.
Commission Impossible: How and
why the FCC created net neutrality
In brief, however, the question comes down to whether Congress has authorized the FCC to make a decision
like that made in the 2015 rules: to classify broadband providers as common carriers and exert its powerful Title II authority over them
Srinivasan explains that it most certainly is:
We have no need in this case to resolve the existence or precise contours of the major rules
(or major questions) doctrine described by our colleagues
Assuming the existence of the doctrine as they have expounded it, and assuming further that the rule in this case qualifies as a major one
so as to bring the doctrine into play, the question posed by the doctrine is whether the FCC has clear congressional authorization to issue
Indeed, we know Congress vested the agency with authority to impose obligations like the ones instituted by the Order because the Supreme
Court has specifically told us so.
And it told us so in a 2005 decision known as Brand X — which Kavanaugh himself cites
In Brand X it was decided that the FCC could in fact define DSL as telecommunications but cable internet as an information service (again,
the piece above has more context for these terms).
Kavanaugh argues that Brand X shows that the 1996 Telecommunications Act, from which the
FCC derives its authority, is ambiguous in its definition of internet services
This ambiguity, he says, means there is no specific mandate from Congress to create a major rule such as net neutrality.
&That analysis,&
Srinivasan explains in his enjoyable prose, &rests on a false equivalence: it incorrectly equates two distinct species of
ambiguity.&
&Whereas Brand X found statutory ambiguity on whether ISPs are telecommunications providers, the decision found no statutory
ambiguity on whether the FCC gets to answer that question,& he writes (emphasis mine)
And once the Supreme Court decides something is legal, he concludes, &our inquiry is over.& Ouch.
It important to note here that Brand X
isn&t some obscure case — it extremely influential and well-studied
Kavanaugh interpretation of it is exceptional in its backwardness, attempting to wring the complete opposite conclusion from what has been
accepted for more than a decade
This kind of poor reasoning isn&t the kind you expect to find in a Supreme Court Justice.
Wrong on tech and wrong on free speech
But the
question of jurisdiction is only prefatory to the main event, in which Kavanaugh truly embarrasses himself.
&Imposing common-carrier
regulations on Internet service providers violates the First Amendment,& he writes
And to be clear, he talking about the First Amendment rights of the internet service providers
He cites the Supreme Court again, this time two cases from the &90s involving Turner Broadcasting.
Some readers may already be exhibiting
Turner Broadcasting In the &90s Wasn&t that a completely different era and industry It was, but Supreme Court decisions can be surprisingly
broad and durable; precedents may stand for decades, if not centuries
So let hear Kavanaugh out, shall we
The cases, he explained, had to do with Turner Broadcasting challenging &must-carry& rules that required
cable operators to carry certain programming — local stations, for instance
Turner argued that the government requiring it to broadcast certain information infringed on its right to free speech
And indeed, although the court ultimately decided that the must-carry rules should be enforced, it was also acknowledged that Turner does
indeed exert free speech rights when it decides what content to broadcast or not broadcast.
&The First Amendment basic principles ‘do not
vary when a new and different medium for communication appears,& & he writes, &Although there of course can be some differences in how the
ultimate First Amendment analysis plays out depending on the nature of (and competition in) a particular communications market.&
Starting
from this solid ground, Kavanaugh immediately drifts into the hard vacuum of ignorance
Please remember that the following was written by someone nominated to be a Justice of the Supreme Court.I really can&t condense it because
every sentence has, as Srinivasan might put it, a distinct species of ignorance (emphasis mine).
Here, of course, we deal with Internet
service providers, not cable television operators
But Internet service providers and cable operators perform the same kinds of functions in their respective networks
Just like cable operators, Internet service providers deliver content to consumers
Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just
as cable operators decide what content they will transmit
Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First
Amendment purposes.
Indeed, some of the same entities that provide cable television service & colloquially known as cable companies &
provide Internet access over the very same wires
If those entities receive First Amendment protection when they transmit television stations and networks, they likewise receive First
Amendment protection when they transmit Internet content
It would be entirely illogical to conclude otherwise.
Setting aside the unprofessional and unjustified bravado that concludes this
breathtaking little salvo, it really would take hours and thousands of words to explain satisfactorily, to Kavanaugh himself, all the
different ways he is incorrect
I&ll attempt to satisfy the demands of posterity and brevity in summarizing them.
1
Packet-based internet service is fundamentally different from cable broadcasting, even if the latter has converted to packet-based
transmission over the last decade
What they have in common is that they are transmitted as electrical impulses, sometimes over wires
It akin to the level of similarity between a telephone call (mostly also packet-based now) and a cable television signal.
2
The idea that because things are transmitted via the same medium, they are legally identical, is so mystifyingly naive and backwards that
I&m surprised to see it in a legal document of any kind, let alone a judge official dissent in a major case
Just as a basic counter-example, what about radio waves They are used in countless different capacities by countless different devices, many
of which are differently regulated, subject to different laws, possessed of different capabilities and so on
What about DSL It runs over telephone lines; should it be regulated like phone calls
3
Outside some very basic and well-understood limits, internet service providers do not decide what content to deliver to users
And in many cases, thanks to encryption, they are totally unable to track (and therefore unable to control) what data they are providing
If all the traffic on the internet was encrypted and ISPs only transmitted data that was totally unintelligible to them, they would still be
able to advertise and provide the exact same, highly valuable service to their users.
Kavanaugh does touch on, and dismiss, some of this as
follows:
[T]he FCC argues (and the panel agreed) that Turner Broadcasting does not apply in this case because many Internet service
providers do not actually exercise editorial discretion to favor some content over others… I find that argument mystifying.
It may be true
that some, many, or even most Internet service providers have chosen not to exercise much editorial discretion, and instead have decided to
allow most or all Internet content to be transmitted on an equal basis
But that &carry all comers& decision itself is an exercise of editorial discretion
Moreover, the fact that the Internet service providers have not been aggressively exercising their editorial discretion does not mean that
they have no right to exercise their editorial discretion.
We have already established, of course, that ISPs not only do not decide what
content to transmit, but that in many (approaching all) circumstances, it cannot do so
But beyond this elementary oversight, Kavanaugh has also failed to comprehend, or perhaps even to read, the rule he is railing
against.
Because his exact argument is preemptively dealt with in the text of the rule itself, which in the first place defines entities
affected by the rules as advertising and providing &the capability to transmit data to and receive data from all or substantially all
Internet endpoints& — a definition that precludes editorial control
And if that too ambiguous for Kavanaugh, several paragraphs are dedicated to addressing his concerns in detail
Some excerpts:
As a factual matter, broadband Internet access services are nothing like the cable service at issue in Turner I.
Cable
operators… both engage in and transmit speech with the intent to convey a message either through their own programming directly or through
contracting with other programmers for placement in a cable package.
Broadband providers, however, display no such intent to convey a
message in their provision of broadband Internet access services—they do not engage in speech themselves but serve as a conduit for the
speech of others.
There more (paragraphs 544 to 549 or so) in the Open Internet Order if anyone (for instance, Judge Kavanaugh) is curious
And in case you are worried that these definitions and assertions have been found wanting by others or challenged by the parties affected,
allow Srinivasanto set your mind at ease:
An ISP has no First Amendment right to engage in those kinds of practices [i.e
editorial content control]
No Supreme Court decision suggests otherwise
Indeed, although the two dissenting FCC Commissioners objected to the agency adoption of the rule on multiple grounds, neither suggested the
rule poses any First Amendment issue
Similarly, the principal parties challenging the Order in this court, who collectively represent virtually every broadband
provider—including all of the major ISPs—bring no First Amendment challenge to the rule.
Considering especially the length and
thoroughness with which now-Chairman Ajit Pai excoriated the original rule, it may be expected that if there were free speech
considerations, he would have brought them up
Likewise the many ISPs and trade organizations, which would have loved to have something like Constitutional grounds to challenge the
order.
The only ones who bring up the issue are Kavanaugh and a tiny ISP in Texas called Alamo, which wanted to offer a &family-friendly&
edited subset of the internet to its customers.
Funnily enough, this is permitted! And by publicly stating that it has no intention of
providing access to &substantially all Internet endpoints,& Alamo would exempt itself from the net neutrality rules! Yes, you read that
correctly — an ISP can opt out of the rules by changing its business model
They are, to Kavanaugh evident bafflement, essentially voluntary
But here Srinivasanagain enlightening his colleague:
There is no need in this case to scrutinize the exact manner in which a broadband
provider could render the FCC Order inapplicable by advertising to consumers that it offers an edited service rather than an unfiltered
No party disputes that an ISP could do so if it wished, and no ISP has suggested an interest in doing so in this court.
In the event that an
ISP nonetheless were to choose to hold itself out to consumers as offering them an edited service rather than indiscriminate internet
access—despite the potential effect on its subscriber base—it could then bring itself outside the rule
In that sense, the rule could be characterized as &voluntary,& [as Kavanaugh describes it], but in much the same way that just about any
regulation could be considered voluntary, insofar as a regulated entity could always transform its business to such an extent that it is no
longer in the line of business covered by the regulation.
Wrong on the slippery slope
Lastly, not content to be wrong on several Supreme
Court cases, the technical basis for the industry he is writing about or the rule itself he is suggesting is unconstitutional, Kavanaugh
felt the need to offer, as a rancid cherry on top, a dose of FUD suggesting that if this rule (which as he sees it permits government
tampering with free speech without evidence of monopoly) were lawful, the government could move on to regulating the speech of edge
providers from Google and Facebook to this website:
If market power need not be shown, the Government could regulate the editorial decisions
of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter
Can the Government really force Facebook and Google and all of those other entities to operate as common carriers Can the Government really
impose forced-carriage or equal-access obligations on YouTube and Twitter If the Government theory in this case were accepted, then the
After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it
could do the same to all those other entities as well.
The vast and numerous differences between a broadband internet provider and a service
like Facebook, let alone a press outlet like The New York Times, are perhaps unsurprisingly lost on Kavanaugh
Once more Srinivasanexplains it concisely:
Those companies evidently do not share our colleague concern—all but one is a member of a group
that supports the rule in this court.
That may be in part because those companies, in contrast with broadband ISPs, are not considered
common carriers that hold themselves out as affording neutral, indiscriminate access to their platform without any editorial filtering.
The
real slippery-slope concerns run in the reverse direction
Under our dissenting colleague approach, broadband ISPs would have a First Amendment entitlement to block and throttle content based on
their own commercial preferences even if they had led customers to anticipate neutral and indiscriminate access to all internet
content.
That the last thing on the long list of things about which Kavanaugh needed to be schooled in order to issue even a reasonably
incorrect opinion on this subject.
This has been a rather long exposition, but I thought it was important that everyone see, in Kavanaugh
own words, exactly how poor of a study he is, at least as far as this issue is concerned, and how little he seems to think through both his
own arguments and those of others.
As Srinivasan notes, what Kavanaugh essentially suggests is that, against the explicit findings of
several Supreme Court decisions, the regulators, and the regulated industry, internet providers should be granted free speech rights that
allow them to arbitrarily limit the free speech of their users.
Is this the type of twisted logic, inadequate research and shallow
understanding that we want in a Supreme Court Justice I think not
Kavanaugh brash and embarrassing failure on this case alone is in my opinion generates sufficient doubt regarding his competence that his
nomination should be denied.
