California passes new law preserving fair and open access to the Internet
When the Santa Clara County Fire Department last month accused Verizon Wireless of hindering its battle against the Mendocino Complex Fire by dramatically slowing its Internet speed due to data limits, Santa Clara University law professors Catherine Sandoval and Allen Hammond IV were disappointed, but not surprised.
Over the years, in correspondence with the Federal Communications Commission, the two professors had predicted many such risks to the public if the FCC repealed the nation’s 2015 “Net Neutrality” regulations that preserve fair and open access to the Internet. The FCC did so in December.
Since then, several states, along with tech companies and consumer advocates, have sued in federal court arguing that without those rules in place, handing over control of the web to Internet Service Providers like Verizon, Comcast, and AT&T poses threats to public safety, such as what happened in the Mendocino Complex fire. Verizon has apologized and said it will remove data caps for basic public safety workers, but the offer falls short of a blanket promise to never throttle their speeds. And there is no such guarantee from other ISPs.
California, however, is moving ahead: On Sept. 30, Gov. Jerry Brown signed into law legislation creating the strongest net neutrality rules in the nation, which ISPs will have to follow for California customers. The U.S. Department of Justice immediately sued the state.
We recently talked with Sandoval, a former commissioner on the California Public Utilities Commission, who supports the California law and recently joined Prof. Hammond and two other professors in a legal brief supporting one of the lawsuits against the FCC.
What is the thrust of your amicus brief?
Our brief argues that the FCC’s order to repeal net neutrality violated the law by failing to consider the effect that overturning the rules would have on public safety and critical infrastructure such as energy and water, and democracy.
How does net neutrality affect public safety?
Cell phones and Internet hot spots are increasingly used as a critical firefighting tool. If you have a functioning communications system on the ground, firefighters can receive data from specialized planes that fly over the fire, using radar, lidar, and other means to see through the smoke and map information about what is happening in real time. That helps them decide where to deploy their resources. Firefighters need real-time information on the wind speed and direction, weather, lightning, heat, and the marine layer. All of this data is layered through geographical information system programs and transmitting it requires a lot of bandwidth.
How else could the repeal pose a hazard?
Environmental impact, for one thing. Internet-enabled resources such as smart thermostats, connected light bulbs, or a solar array, help manage the electric grid and reduce carbon emissions. If they aren’t reliable, their benefit erodes. And energy providers increasingly use the Internet to manage resources, increase reliability and safety, and reduce rates. If they can’t do that because of Internet unreliability, you can have small electric failures, or cascading outages like what happened in San Diego in 2011.
You’re also very worried about “paid priority,’’ which allows Internet Service Providers to offer top-tier access, including faster speeds, to Internet users that pay higher fees than other users. What’s at stake, in your opinion?
Under the rules that the FCC adopted, the ISP does not have to offer paid priority to everybody, nor do they have to charge them the same price; they can discriminate. You know all those findings about Russian interference in the last election? A lot of that interference was perpetrated through the Internet. The FCC imposed no restrictions on who could buy paid priority–foreign or domestic. So some company from Russia or North Korea could pay top dollar to an ISP for paid priority. Or maybe there’s a trigger, like every time it hits 95 degrees in California, a company that pays for priority—let’s say, a video game company—gets Internet priority. That’s going to interfere with your energy signals, so you’re more likely to have blackouts. A bad actor could buy paid priority before an election, or the day of an election, so that other communications that day get delayed or even fail. This raises new risks for democracy.
Now that Gov. Brown has signed into law Senate Bill 822, which would prohibit Internet Service Providers from blocking, throttling or treating Internet traffic differently, will it supersede federal law?
It would impose California’s law adopted under the state police power to protect life, limb, health, and the welfare of the people of the state to regulate ISPs operating in California. The state police power is why we have local police and state highway patrol, and not a national police force. SB 822 recognizes that the Internet is integral to voting, education, public safety, energy and water management, the environment, and many other areas governed by the state police power.
What happens next?
ISPs have threatened to sue the state and would likely argue that the FCC’s order pre-empts the states from adopting rules inconsistent with that order. The state would argue that the FCC’s order that repealed net neutrality infringes on the power and duty of the states to protect their residents’ health and safety. If the appeals court determines that the FCC’s order repealing net neutrality was “arbitrary and capricious,” the court may set aside the repeal and send the case back to the FCC.