State of the Net conference features continued crosstalk about net neutrality

WASHINGTON – State of the Net - More than two decades after legal scholar Tim Wu uploaded the phrase "net neutrality" into tech policy discourse in a 2003 paper, the debate over the shape of a net neutrality policy – including if one should even exist – continues to take place over conflicting frequencies.

This conference here Monday featured an early denunciation of FCC chair Jessica Rosenworcel's move in September to revive the sort of Title II-based net neutrality rules that the commission had adopted in 2015 and then axed in 2017.

Net gains or losses

"I think the state of the net, from the ISP layer, is actually pretty good," FCC commissioner Brendan Carr said, arguing that recent advances in the U.S. broadband landscape and the continued absence of providers blocking or throttling sites proved the wisdom of the 2017 FCC deleting the work of the 2015 FCC. "Speeds on the Internet, on the fixed side, are up over 3.5 fold. On the mobile wireless side, we've seen speeds increase over 6-fold."

Echoing points he made in a speech at MWC Las Vegas in September, Carr invoked the resilience of home broadband during the early days of the pandemic as proof that no net-neutrality rules were needed to keep networks open: "Covid was the ultimate stress test of global telecom policy."

And with fixed-wireless service, mostly from T-Mobile and Verizon, continuing to eat away at cable subscriber rolls, Carr said the picture for broadband competition has improved greatly, too, with the share of American households with a choice of two or more high-speed providers increasing by 30% since 2017. 

But he also took a swipe at the Biden administration’s spectrum policy, saying it’s "fallen into a bit of malaise" and calling the National Spectrum Strategy released in November inadequate for not "freeing up even a single megahertz of spectrum."

Carr didn’t mention Congress's strange failure to renew the FCC’s spectrum auction authority. But his entire denunciation of revisiting net neutrality also skipped over one of the major points Rosenworcel has invoked for returning to the net neutrality well: establishing broadband privacy protections.

Privacy, please

It fell to another State of the Net panel to bring that up. 

"It's not just about net neutrality," said Christopher Lewis, president and CEO of the nonprofit advocacy group Public Knowledge, as he recalled how quickly a new Republican majority in Congress acted in 2017 to stop pending broadband privacy rules that the FCC had approved the previous year upon its Title II authority. 

"Congress came in and repealed those privacy laws," Lewis said. "Now we have Congress clamoring for privacy laws."

Another speaker on this panel, Matthew Brill, a partner and chair of the communications practice at the law firm Latham & Watkins, acknowledged the privacy concern after saying, "We didn't need a heavy-handed governmental regime to make the Internet work better." 

Brill first defended the 2017 FCC's punt of privacy enforcement to the FTC, left that work to “a pretty important cop on the beat and an aggressive one," then put in a plug for enacting a national privacy law.

Lewis countered that the FTC's privacy authority stops at requiring companies to abide by their own posted privacy policies: "It's why everyone at the FTC wants a privacy law."

Congress doing just that – or merely passing a more limited net neutrality law that would not grant the broad, utility-style regulatory powers inherent in Title II-based rules – would alleviate what panelist Diane Holland, a partner at Wiley Rein LLP, called the "whiplash" of the FCC from one administration to another. 

But much of the rest of the conference's talks offered little hope for the kind of comprehensive federal privacy legislation that even large tech companies have been requesting for years in one form or another.

A can’t-do Congress

The short version of that assessment came from Rep. Don Beyer (D.-Va.) in a morning keynote: "The do nothing Congress has been doing nothing."

Speaking later in the morning, Rep. Glenn Ivey (D.-Md.) decried the current House's focus on other things.

"When we're not doing hearings on Hunter Biden, the actual hearings we're doing on substantive matters usually last all of two hours," he cracked. 

In one of the day’s last panels, John Beezer, a senior advisor with the Senate’s Committee on Commerce, Science and Transportation, sketched out scenarios for the fate of a privacy law.

"One is that we do nothing and the logic for that is, well, that's what we always do," he said.

Another was that demands for a meaningful AI bill would drag some privacy laws into existence because so many areas of AI anxiety involve the application of people’s data.

Or ongoing discussions – Beezer assured listeners that they are actually happening – over such proposals as the American Data Privacy Protection Act could actually get a privacy bill to a vote in the House and Senate. 

"We're much closer than it looks," Beezer said. "Anything could happen."

Unless nothing happens. Again.