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California Enacts State Net Neutrality Rules, Gets Sued Immediately

California's new law is a legal mess.

Andrey Metelev/Dreamstime.comAndrey Metelev/Dreamstime.comCalifornia Gov. Jerry Brown signed a sweeping new net neutrality bill into law on Sunday. Within minutes, his state was hit with a Department of Justice lawsuit.

"Under the Constitution, states do not regulate interstate commerce—the federal government does," said Attorney General Jeff Sessions in a press release. The release also accused California of unlawfully imposing "burdensome state regulations on the free Internet."

Sponsored by Sen. Scott Weiner (D–San Francisco), the law aims to reimpose the Obama-era net neutrality rules, which the Federal Communications Commission (FCC) repealed this year with its Restoring Internet Freedom order.

California is hardly the first state to take this step. Oregon, Washington, and Vermont have passed similar state-level net neutrality bills, and governors in six states have issued executive orders imposing net neutrality–like requirements on ISPs that contract with the state government.

But California's bill is exceptionally sweeping. Its restrictions on Internet Service Providers (ISPs) include bans on zero-rating (offering certain content or applications for free), paid prioritization (letting consumers pay more for faster download speeds for certain content), or otherwise blocking, slowing down, or speeding up internet traffic because of its content, source, or destination.

Many of these regulations directly conflict with the "light-touch" approach to internet regulation spelled out in the Restoring Internet Freedom order. The order also included a provision preempting state and local net neutrality laws. The Justice Department's lawsuit argues that S.B. 822 therefore "is invalid under the Supremacy Clause and is preempted by federal law."

That should be a pretty straightforward case for the federal government to make, says Tom Struble, an attorney and technology policy expert with the R Street Institute. He expects the feds' lawsuit against California to serve as a vehicle for overturning the other state net neutrality laws as well.

"Because California's [net neutrality law] went the furthest, I think the [Justice Department] was waiting for them to pass that one because it makes the easiest case to win," Struble tells Reason. "I think they're going to win the case. I think it's pretty clear the law is illegal, at least two times over, if not three or four."

Defenders of state-level net neutrality laws argue that the FCC, by choosing not to impose certain regulations on how ISPs treat the content on their networks, has opened up a space that allows states to act.

Washington state Rep. Brian Hansen (D–Bainbridge Island), author of Washington's net neutrality law, told Reason last year, "The FCC is declaring that a certain set of federal statutory provisions do not give it the authority to regulate standards of conduct on the internet. Yet somehow, as if by magic, that same statute gives them the authority to preempt state attempts to regulate standards of conduct on the internet. I'm not sure how that can coexist."

Struble rejects this premise, arguing that the FCC did not abdicate its own authority to regulate broadband internet by repealing the Obama-era rules. Rather, he says, the FCC was merely switching from a more regulatory approach to a less regulatory one, which does nothing to impact its ability to preempt conflicting state laws.

Meanwhile, the Dormant Commerce Clause forbids a state from discriminating against out-of-state companies, or otherwise unduly burdening interstate commercial activity without a strong state interest in doing so, regardless of what the federal regulatory framework is.

By banning things like zero-rating—something mobile service providers are already offering in California—S.B. 822 imposes just such an undue burden on interstate commerce, argues Struble. Even the Electronic Frontier Foundation, which backs net neutrality, has said that state-level net neutrality regulations are vulnerable to challenges on Dormant Commerce Clause grounds.

The obvious legal problems with California's net neutrality law make it as much a political statement against the Trump administration as it is a seriously regulatory proposal.

The law's defenders have certainly been happy to raise the #resistance flag in response to the lawsuit.

"Sessions and his boss Donald Trump aren't satisfied with the federal government repealing net neutrality. In their world, *no one* is allowed to protect an open internet," said Weiner in a statement, adding that California had been "down this road before" in successfully fending off Justice Department lawsuits about its sanctuary city policies. "California fought Trump and Sessions on their immigration lawsuit—California won—and California will fight this lawsuit as well."

This anti-Trump zeal might be good for rallying progressive activists, but appears unlikely to save S.B. 822 from the legal challenge.

Photo Credit: Andrey Metelev/Dreamstime.com

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  • albo||

    California uber alles. Their legislative silliness will always disproportionately impact the rest of us who aren't as silly

  • Dillinger||

    it's the Suede Denim Secret Police...

  • sarcasmic||

    Defenders of state-level net neutrality laws argue that the FCC, by choosing not to impose certain regulations on how ISPs treat the content on their networks, has opened up a space that allows states to act.

    There must be regulation. If you don't have regulation, then people will do things without asking permission and obeying orders. That would be chaos and anarchy. So if the feds choose not to regulate, the states must. The alternative is people making their own decisions, and that cannot be allowed.

  • Leo Kovalensky II||

    ... among anarchists

  • sarcasmic||

    Without government force their are no rules. That is why rules for sports, internet protocols, and industry standards are all defined in legislative statute. That's why every game, every computer, and every factory is monitored by the police to be sure that the rules are followed. Without the threat of men with guns, there would be no rules. Life would be Calvinball.

  • Unicorn Abattoir||

    I would watch Calvinball.

  • Scarecrow Repair & Chippering||

    Only if the rules at that time allowed it.

  • Unicorn Abattoir||

    The game isn't played the same way twice applies to viewers, too?

  • Scarecrow Repair & Chippering||

    Depends.

  • Scarecrow Repair & Chippering||

    Instant replays are ... different ... in Calvinball.

  • Unicorn Abattoir||

    You can't watch a replay without affecting the outcome. Quantum physics on the macro level.

  • sarcasmic||

    I actually run into that at work sometimes. I'll get an error that only happens when I don't step through the code. Turn on the debugger and it works fine. Let 'er rip and bam I get the error. I call them quantum bugs.

  • Unicorn Abattoir||

    I find that the number or errors in my work is directly proportional to the amount of work that I do. I try my best to keep the number of errors down.

  • Unicorn Abattoir||

    *facepalm*

    of, not or.

  • Dillinger||

    error discussing errors hilarioso.

  • Colossal Douchebag||

    Logging uber alles

  • Dillinger||

    would you play?

  • Unicorn Abattoir||

    It's quite possible that spectators could end up as competitors.

  • Book 'em Dino||

    Who says UA isn't playing by watching? It's the Observer Effect Rule.

  • Unicorn Abattoir||

    Perhaps it's the spectators that are competing, providing entertainment for those on the field of play.

  • Dillinger||

    i figure i'm playing at all times, everyone else must be

  • CDRSchafer||

    But somehow the internet existed before/after net neutrality.

  • Unicorn Abattoir||

    If you choose not to regulate, you still have made a choice.

  • Brandybuck||

    "Under the Constitution, states do not regulate interstate commerce—the federal government does," said Attorney General Jeff Sessions


    As much as it pains me to say so, the midget in charge of justice is correct. States cannot regulate interstate commerce, and no matter how you slice up net neutrality, it's interstate commerce. Real interstate commerce and not that fake kind where you grow pot in your garage for your personal use.

    Unless one can limit this so it only applies to in-state services across in-state copper through in-state routers owned by in-state companies to in-state users, it's interstate commerce.

  • Unicorn Abattoir||

    So you're saying to cut all the communication lines leading into and out of CA?

    Nice idea, but I don't think it goes far enough.

  • ByteRot||

    I would be absolutely fine with cutting all the cables to California, especially if the idiots voted to do it themselves. With the advent of distributed content networks, even the physical presence of the majority of tech jobs and headquarters in California would mean nothing for the continued operation of the internet -- except that a bunch of programmers would have to leave the state to continue their employment. Which would also be a good thing, now that I think about it -- we could get tech labor that wasn't saddled by the ridiculously high overhead imposed by the cost of living in the Bay area, and distribute those jobs to dying industrial America more equitably.

  • Unicorn Abattoir||

    and distribute those jobs to dying industrial America more equitably.

    You had me up until this point.

  • ByteRot||

    Why? I'm suggesting cultural/market forces at work, here, not government ones.

    I'm saying that if it suddenly became difficult for Californians to work in tech, it would break the chicken-and-egg cycle that perpetuates the strong coastal tech hubs despite their clear overcrowding and cost of living disadvantages.

    Even the tech companies are recognizing this -- look at some of the finalists for Amazon HQ2; they're medium sized urban centers in the Midwest or mid-Atlantic, where cost of living is much lower than the usual tech industry suspects. This would just be an impetus for other companies to reassess those market forces sooner.

  • Rev. Arthur L. Kirkland||

    distribute those jobs to dying industrial America more equitably

    Economic opportunity is already distributed in a generally equitable manner in America, as markets arrange, informed people understand, and libertarians applaud.

  • ThomasD||

    "Nice idea, but I don't think it goes far enough."

    Well, we already drove the carrier pigeon to extinction.

    These things take time.

  • Leo Kovalensky II||

    As much as it pains me to say so, the midget in charge of justice is correct.

    In related news, a blind squirrel found a nut today.

  • Leo Kovalensky II||

    "Sessions and his boss Donald Trump aren't satisfied with the federal government repealing net neutrality. In their world, *no one* is allowed to protect an open internet," said Weiner in a statement

    Are all the Weiners of the world Democrats?

  • Magnitogorsk||

    Zero rating is real shady. It seems to be getting into anti-competition territory. Comcast using their position as an ISP to give their TV shows an advantage over competing shows, for example, is the kind of thing net neutrality was originally about before the progs transformed it into a rallying call to destroy the internet via regulation.

  • ||

    Bullshit. Zero rating is and was *the* model before even cable TV. Acting like NN wasn't a prog sham since the beginning is a farce.

    The only way zero-rating is shady is if it lowers your bandwidth or transfer caps whether you want/use it or not and whether they tell you or not. As it is, you can still buy 'loose' bandwidth at cost right alongside zero-rated bundles and vendors make little-to-no effort to conceal this. My neighbor can have HBO, CNN, and Hulu from his connection to AT&T while I watch Youtube and the kids play Fortnite over my connection to Comcast. The phone market is far more 'zero-rated' than the larger mass media market and no one gives a shit.

    The only real thing that's changed is successive rounds of useful idiots willing to fall for fraud and stupid arguments in favor of regulation.

  • ThomasD||

    "The only real thing that's changed is successive rounds of useful idiots willing to fall for fraud and stupid arguments in favor of regulation."

    This. But, in defense of the useful idiots, over the last couple years the content creator brigade and their tech media allies have been out in force practically brainwashing people into thinking that government control equals freedom .

    It really has been a thing to behold.

  • Diane Reynolds (Paul.)||

    Comcast using their position as an ISP to give their TV shows an advantage over competing shows

    How?

  • ByteRot||

    Diane Reynolds (Paul.): the simplest example would be if Comcast implemented metered bandwidth, or throttling, and zero-rated the bandwidth for their streaming TV service (so that Comcast-owned TV shows didn't count against your monthly bandwidth), or throttled other streaming TV services so you could only access them at poor picture qualities.

  • Diane Reynolds (Paul.)||

    the simplest example would be if Comcast implemented metered bandwidth

    That's if. I'm always told we need net neutrality IF these things happened. Again, this has been explained again, and again and again. This is a temporary industry spat that will not be solved by a bunch of regulators with spiffy matching binders. Ever. If we don't learn from the past, we're doomed to repeat it.

    and zero-rated the bandwidth for their streaming TV service (so that Comcast-owned TV shows didn't count against your monthly bandwidth)

    Cell phones companies do this now.

    or throttled other streaming TV services so you could only access them at poor picture qualities.

    Consumers would deal with this through their pocketbooks. If...if this ever happened.

  • sparkstable||

    And would probably LIKE it because they are getting something for FREE!

    So my cable provider wants to give me more access to content with better speeds and in more places at no extra cost and I'm supposed to be mad? I've never understood this. If other people are mad... maybe they should switch providers.

  • ByteRot||

    Oh, I don't disagree. I'm not a supporter of Net Neutrality. I'm inclined to be a little more interventionist than usual because we've already screwed around with the market by subsidizing massive capital investment on the part of major ISPs of all flavors, and given those sins of the past, we should be extra careful they don't turn into even worse monopoly situations given the huge barrier to entry for competitors, especially new players.

    My hope is that players like Google with the capital to do so will disrupt the market, as Google has with Project Fi in the mobile market, and was testing the waters with in its fiber urban test markets.

    I will take issue with your suggestion that consumers will deal with anti-competitive measures with their pocketbooks -- the prior sins I've mentioned have left us in a position where for large swaths of the country, consumers have no real choice. Municipal cable monopoly deals, telephone monopolies, and other terrible (and often corrupt) local government deals of the past have left most non-urban communities in a position where they count themselves blessed if they have even TWO competing broadband ISPs available to them, and one of them probably barely qualifies as broadband.

  • ThomasD||

    "How?"

    And how does this differ from Amazon using their streaming devices to give their shows an advantage over competing shows?

  • ByteRot||

    If vertical integration gets to the point where consumers are ill-served by anti-competitive measures, we have anti-trust laws to deal with that.

  • CDRSchafer||

    California needs nut neutrality. Their nuts are far too dangerous.

  • Mr. Dyslexic||

    California is the petri dish of bad laws and horrible ideas. We should thank them for being our guinea pigs.

  • Rev. Arthur L. Kirkland||

    Observing yahoos from our can't-keep-up backwaters -- the depleted human residue and concentrated dysfunction that remains after generations of being on the wrong end of bright flight -- take shots at California and Californians is always entertaining.

    Carry on, clingers.

  • Chipper Jones||

    Have you ever been to California? I grew up in San Diego and now live in the Bay Area and can assure you that California is mostly made up of uneducated backwater types. It might be not the same brackish backwater of a place like Mississippi, but it's shit nonetheless.

  • NotAnotherSkippy||

    San Jose is an absolute dump. Nothing but brown and single-story, strip malls. But even better? It's the fecal and car burglary capitol of the US. I dread every trip there.

  • Juice||

    San Jose must truly be a unique place. I don't even think we have more than a handful of fecal burglars in this area.

  • NotAnotherSkippy||

    Pretty sure the oxford comma doesn't change that. Perhaps a hyphen.

  • Diane Reynolds (Paul.)||

    Yet somehow, as if by magic, that same statute gives them the authority to preempt state attempts to regulate standards of conduct on the internet. I'm not sure how that can coexist."

    Commerce clause, bitch. The federal government's application of the commerce clause is to keep free trade regular between the states. It's the one and only proper use of the commerce clause.

  • chipper me timbers||

    ^THIS!

    Sadly there are 0 justices on the bench who understand this.

  • ByteRot||

    Liberals must be so confused. It's the Interstate Commerce clause being invoked in an Interstate Commerce case! They must have forgotten that it can be applied to things that aren't some dude making or growing a thing to use for themselves.

  • Leo Kovalensky II||

    Close. The confusion for liberals is that the Interstate Commerce clause is being invoked to LIMIT government power. It's usually only invoked to limit individual liberty.

  • ByteRot||

    Good call. I'll concede the modification.

  • MatthewSlyfield||

    "it can be applied to things that aren't some dude making or growing a thing to use for themselves."

    But the tools he used to make/grow that thing traveled in interstate commerce.*

    *It is the current stance of the DOJ (and has been for a while) that it's enough for federal criminal jurisdiction to attach on a commerce clause basis if any of the tools/equipment that were used to commit the crime once traveled in interstate commerce.

  • Uncle Jay||

    "California Gov. Jerry Brown signed a sweeping new net neutrality bill into law on Sunday. Within minutes, his state was hit with a Department of Justice lawsuit. "Under the Constitution, states do not regulate interstate commerce—the federal government does," said Attorney General Jeff Sessions in a press release."

    Now how is the fascists in California's Ministry of Information going to censor if the US Constitution gets in the way?
    Did Sessions ever think of that?

  • XM||

    It's not like CA's revenues are overly dependent on things like tech and stock, right?

    Verizon already left CA (and other states) and dumped their state assets on Frontier. Other ISPs might follow suit now.

    "Sorry, you can't charge more for premium services that cost more money". I'm sure that's music to the ears of businesses at the state.

  • Diane Reynolds (Paul.)||

    It's not like CA's revenues are overly dependent on things like tech and stock, right?

    A lot of the tech companies support net neutrality because they see it as a way to hobble their competition.

  • XM||

    Internet speed in CA is nothing to write home about, and if ISPs can't do anything about people who hog bandwidth then lots of businesses will be affected.

    The tech companies might support NN as a matter of politics, but do their shareholders and investors share that position?

  • NotAnotherSkippy||

    And as a way to free ride on their carriers. Google is all about the free ride.

  • Colossal Douchebag||

    Christ, what assholes.

  • Diane Reynolds (Paul.)||

    If we don't allow people to uninstall internet explorer 4.0, Micro$oft will control the internet!

  • Unicorn Abattoir||

    +1 flying toaster

  • Rev. Arthur L. Kirkland||

    Right-wingers demonstrated long ago that their concern about states' rights starts and ends with popular bigotry.

  • XM||

    States don't have right to regulate interstate commerce, doofus. States never had autonomy that conflicts with federal authority.

    They don't have to cooperate with Feds on immigration enforcement. They can't stop feds from entering their soil and apprehending illegals themselves. That's just one example.

  • Juice||

    They can't stop feds from entering their soil and apprehending illegals themselves.

    They have in the past. It's called nullification.

  • NotAnotherSkippy||

    Meanwhile, the Dormant Commerce Clause forbids a state from discriminating against out-of-state companies, or otherwise unduly burdening interstate commercial activity without a strong state interest in doing so, regardless of what the federal regulatory framework is.

    Now do CAFE and emissions standards...

  • Juice||

    "burdensome state regulations on the free Internet."

    Like ISP monopolies?

  • ThomasD||

    Are these Federal monopolies? Or are you suggesting that the Feds start regulating what localities do?
    ...

    Making the last mile more competitive is certainly a good idea. But bad approaches (with government regulation about being the worst) might only serve to create stasis in an otherwise rapidly changing market environment.

  • Eric Bana||

    I thought the internet was already dead.

  • Gilbert Martin||

    Ask these leftists who want to selectively invoke "states rights" to override the feds on the internet why that same principle wouldn't apply to Obamacare and allow states to override the feds regulation of health insurance.

  • ThomasD||

    Tennessee has toyed with legislation that would exempt locally made firearms from all Federal laws. Instead of just a serial number on the frame they'd also have a State marking indicating they were not for sale or transfer outside Tennessee.

    Sure wish they would do it. If only for the inevitable legal challenges.

  • RPGuy16||

    "Washington state Rep. Brian Hansen (D–Bainbridge Island), author of Washington's net neutrality law, told Reason last year, "The FCC is declaring that a certain set of federal statutory provisions do not give it the authority to regulate standards of conduct on the internet. Yet somehow, as if by magic, that same statute gives them the authority to preempt state attempts to regulate standards of conduct on the internet. I'm not sure how that can coexist.""

    Rep. Hansen not so smart.

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