27 December 2010

Now that it matters, where is the EFF on net neutrality?

Update: Of course, just as I post this, the EFF posts an update.  Still, it is not nearly the statement I am hoping to hear from them.  They soon need to move on from a "wait and see" attitude to forceful opposition to the process.

The Electronic Frontier Foundation has long been a supporter of the concept of net neutrality.  Yet on May 3rd, Fred von Lohmann of the EFF wrote an article entitled "Net Neutrality: FCC Trojan Horse Redux." In the article, he argued that basing the FCC's proposed net neutrality rules on the FCC's "mandate from Congress to deploy broadband to all Americans in a timely manner" is "a bad idea, no matter what your views of the wisdom of the FCC's proposed net neutrality regulations."  He went on to say:
Whatever your views on net neutrality, this is a terrible idea. If you oppose the proposed FCC net neutrality regulations because you are worried about expansive federal regulation of the Internet, then you should oppose an expansive reading of "Title I ancillary authority," because that reading would be an invitation for even more federal regulations down the road.
The quote above about deploying broadband to all Americans in a timely manner is from Section 706 of the Telecommunications Act of 1996.  This is what the EFF called a "terrible idea," and this is precisely the authority the FCC is asserting (see paragraph 117 of the FCC net neutrality order).

To be fair, this article seems to mix Section 706 and "Title I ancillary authority" into the same bucket, and the FCC's new net neutrality rules seem to drop "Title I ancillary authority" in favor of Section 706 (and a hodgepodge of other supposed authority).  But the general idea is the same--the FCC is basing their claims of authority on terrible legal ground.

One would assume then that the EFF still thinks this is a terrible idea.  The problem is that they have been largely silent.  The EFF's "Deeplinks Blogs related to Net Neutrality" has been quiet since December 8th.  The only news is an article by Abigail Phillips entitled, "Genachowski Wins on Net Neutrality, Sort of" which spends precisely one paragraph on the "bad" and "terrible" idea, but this time simply calls the FCC's basis for regulation "disconcerting."

The EFF supports the concept of net neutrality, but the arguments made by Fred von Lohnmann are precisely the same procedural arguments that I have made against net neutrality.  Arguing the substance of the regulations is fine, as I have already done here, but when the entirety of that substance is based upon a "rotten legal foundation" (the EFF's words, not mine), you would think they would come out more forcefully against the process.

The EFF said back in May: "we don't think that the FCC has—or should have—broad powers to regulate the Internet for any reason..."  I agree. I know it's the holiday season and things are slow everywhere, but as the New Year begins I hope we can expect a strong and forceful statement from the EFF against the FCC's net neutrality rules.
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