30 April 2014

On January 14, the Federal Appeals Court for the District of Columbia struck down a Communications Commission rule that guaranteed what is called “net neutrality.” The rule prohibited internet providers from blocking internet traffic to consumers based on content or bandwidth or charging consumers a greater fee to access content. The split decision by the court in favor of Verizon and MetroPCS had additional support in the form of briefs from right­wing lobbying groups and the conservative former Attorney General of Virginia, Ken Cuccinelli. Cuccinelli had filed friends of the court briefs to assist the appellants in their case. The court leaned heavily on a similar decision in 2010 in favor of ComCast, that prompted renewed rules prohibiting the blocking of internet traffic based on content.


Verizon brought the new lawsuit that asks to charge both the internet subscriber for access and the content providers for access to the subscribers. One of Verizon's lawyers, Heidi Walker, was quoted by Bloomberg News during oral arguments, saying “I’m authorized to state from my client today that but for these rules we would be exploring those types of arrangements.” Comcast, which owns NBC, could charge both ABC for access to the consumer and the consumer a premium to view video news from ABC. Companies can now also block entire services, such as TOR (an anonymous internet browser) and peer­to­peer file sharing services such as BitTorrent.


The free speech and freedom of the press issues did not seem to phase Judge Laurence Silberman, who concurred with part of the 131-page decision for the majority and part for the minority decision as well. “In any event, as the majority recognizes, the Commission did not make this argument, so the anti­blocking rules must fall,” Silberman wrote in his concurrence. Judge David Tate wrote the majority opinion. Tate's views on press freedom gained notoriety during the Valerie Plame affair when he upheld the jailing of New York Times reporter Judith Miller on contempt charges for refusing to reveal her sources to a grand jury.


Although economic arguments and questions of bandwidth dominated the proceedings and the majority opinion, it appears as though speech and content dominate the thinking and motivation of the three parties that choose to submit friend of the court briefs on Verizon's behalf. One of those, the National Association of Manufacturers, has long been partisan in favor of the rights of big business versus the rights of labor, stretching back through its opposition to Roosevelt's New Deal to its founding in 1895. In 1911 its president's address at its convention contained the assertion that “The American Federation of Labor is engaged in an open warfare against Jesus Christ and his cause."


The friend of the court brief presented by the Competitive Enterprise Institute (CEI) came backed by four lawyers in support of Verizon's winning position. The CEI is a libertarian-aligned think tank that receives funding from Exxon Mobil, Phillip Morris, Texaco, and Pfizer Pharmaceuticals. It also receives grants from top­shelf names amongst conservative charitable foundations including the Scaife Foundation, the Bradley Foundation, the David H. Koch Charitable Foundation, the Charles G. Koch Foundation and the Koch brother-controlled Claude R. Lambe Charitable Foundation. The Bradley Foundation also provided grants to the Project for a New American Century, which united leading hawks of the Bush Administration during the Clinton years in demanding war with Iraq.


One of CEI's major focus issues is opposing the idea of global climate change. One of its adjunct scholars, Fox News commentator Steven Milloy, penned an anti­environmentalist book entitled Green Hell: How Environmentalists Plan to Control Your Life and What You Can Do to Stop Them. On top of his work at CEI, he also opposes research into global climate change from his website junkscience.com. Milloy also has publicly denied the concept of human evolution.


Opposition to climate science seems to unite CEI with the third pro­Verizon friend of the court, Cuccinelli, whose office petitioned the Environmental Protection Agency in 2010 in an effort to overturn its findings on greenhouse gas emissions under the Clean Air Act. A quote from Cuccinelli in a press release from his office showed a clearly partisan pro­business and anti­ environmental agenda: “We cannot allow unelected bureaucrats with political agendas to use falsified data to regulate American industry and drive our economy into the ground.” Cuccinelli used his office in an attempt to investigate and possibly prosecute a prominent climate scientist Michael Mann for fraud because of his work on climate modeling. Cuccinelli is also staunchly anti­gay. He views non­straight sex as “behavior that is not healthy to an individual and in aggregate is not healthy to society.”


Although Verizon seems to want to squeeze more dollars from both ends of the internet pipe, it is clear that Verizon's fellow travelers want to limit free speech. The idea that internet providers, unlike the NSA, do not concern themselves with individual users viewing habits, appears to be a false one. In addition to providing internet services, ComCast is also a cable provider. In that capacity, ComCast has definitely collected data on the cable TV viewing habits of individual customers.


ComCast is currently embroiled in a lawsuit against one of its former employees who designed a device to secretly monitor cable subscribers' viewing habits. ComCast alleges that a former employee, Robert Orlowski, signed ComCast up for a free trial of his service while still employed there and then attempted to market an expanded service to the company without disclosing his connections.


ComCast did not object to monitoring its customers' TV viewing habits for free and collecting data that could later be seized by the NSA on the business records provisions of the Patriot Act. This is a clear case of a cable and internet provider spying on its own subscriber base without their knowledge or their consent.


No charges have been brought against ComCast for looking over its customers’ shoulders. The fact that a market exists for devices to secretly monitor the viewing habits of cable/internet subscribers makes it clear that broadband providers do concern themselves with individual users consumption of content.


Verizon's friends of the court also seem concerned with what content exists at all in the public domain. When well­funded right­wing interests align with conservative politicians and broadband providers who spy on their customers to make it legal to block content, it is only a matter of time before the electronic commons dies an untimely death.


Taken together, these developments and revelations leave a free and independent press searching for new ways to bring about the unfettered flow of information and opinion that are essential to a democratic society. In their efforts to squeeze out a final dime, Verizon may only succeed in choking the internet to death.