The future of the open internet is in danger this October 31st, not from ghosts and goblins, but from the broadband companies that control internet access in most of the United States.  
 
These companies would love to use their oligopoly power to charge users and websites additional fees for “premium” internet access, which they can create by artificially throttling some connections and prioritizing others. Thanks to public pressure and a coalition of public interest groups, the Federal Communications Commission (FCC) has forbidden such paid prioritization and throttling, as well as outright blocking of websites. These net neutrality protections ensure that ISPs treat all data that travels over their networks fairly, without improper discrimination in favor of particular apps, sites or services. 

But the lure of making more money without investing in better service or infrastructure is hard for broadband services like Comcast and AT&T to resist. So the big telecom companies have challenged the FCC’s rules in court—and their case has now made its way to the Sixth Circuit Court of Appeals. 

A similar challenge was soundly rejected by the D.C. Circuit Court of Appeals in 2016. Unfortunately the FCC, led by a new Chair, repealed those hard-won rules in 2017—despite intense resistance from nonprofits, artists, tech companies large and small, libraries, and millions of regular internet users. A few years later, FCC membership changed again, and the new FCC restored net neutrality protections. As everyone expected, Team Telecom ran back to court, leading to this appeal. 

A few things have changed since 2017, however, and none of them good for Team Internet. For one thing, the case is being heard in the Sixth Circuit, which is not bound by the D.C. Circuit’s earlier reasoning, and which has already signaled its sympathy for Team Telecom in a preliminary ruling. 

And, of course, the makeup of the Supreme Court has changed dramatically. Justice Kavanaugh, in particular, dissented from the D.C. Circuit majority when it reviewed the 2015 order—a dissent that clearly influenced the Sixth Circuit’s initial ruling in the case. That influence may well be felt when this case inevitably makes its way to the Supreme Court.   

The central legal questions are: 1) what did Congress mean when it directed the FCC to regulate “telecommunications services” differently from “information services,” and 2) into which category does broadband fall. This matters because the rules that we need to preserve the open internet — such as forbidding discrimination against certain applications — require the FCC to treat access providers like “common carriers,” treatment that can only be applied to telecommunications services. If the FCC has to define broadband as an “information service,” it can impose regulations that “promote competition” (good) but it cannot do much to forbid paid prioritization, throttling or blocking (bad). 

The answers to those questions will likely depend on whether the Sixth Circuit thinks regulation of the internet is a “major question,” meaning whether it is an issue has “vast economic or political significance.” If so, the Supreme Court has said that agencies can only address it if Congress has clearly authorized them to do so.  

The “major questions doctrine” is on the rise thanks to a Supreme Court majority that is deeply skeptical of the so-called administrative state. In the past few years, the majority has used it to reject multiple agency actions, such as the CDC’s temporary moratorium on evictions in areas hard-hit by Covid.  

Equally importantly, the Supreme Court recently changed the rules on whether and how court should defer to plausible agency interpretations of the statutes under which they operate. In the case of Loper Bright Enterprises v. Raimondo, the Court ended an era of judicial deference to agency determinations. Rather than allowing agencies to act according to the agencies’ own plausible determinations about the scope and meaning of the authorities granted to them by Congress, courts are now instructed to reach those determinations independently.  
 
Ironically, under the old rule of deference, in 2003 the Ninth Circuit independently concluded that broadband was a telecommunications service – the most straightforward and correct reading of the statute and the one that provides a sound legal basis for net neutrality protections. In fact, the court said it had been erroneous for the FCC to say otherwise. But the FCC and telecoms successfully argued that the courts should defer to the FCC’s contrary reading, and won at the Supreme Court based on the doctrine of judicial deference that Loper Bright has now overruled. 

Putting these legal threads together, Team Telecom is arguing that the FCC cannot classify current broadband offerings as a telecommunications service, even though that’s the best reading of the statute, because that classification is be a “major question” that only Congress can decide. Team Internet argues that Congress clearly delegated that decision-making power to the FCC, which is one reason the Supreme Court did not treat the issue as a “major question” the last time it looked at the issue. Team Telecom also argues that, after the Loper Bright decision, the court need not defer to the FCC’s interpretation of its own authority. Team Internet explains that, this time, the FCC’s interpretation aligns with the best understanding of the statute and the facts. 
 
EFF stands with Team Internet and so should the court. It will likely issue a decision in the first half of 2025, so the specter of uncertainty will be with us for some time. Even when the panel issues an opinion, the losing side will be able to request that the full Sixth Circuit rehear the case, and then the Supreme Court would be the next and final resting place of the matter. 

Section 1201 of the Digital Millennium Copyright Act is a ban on reading any copyrighted work that is encumbered by access restrictions. It makes it illegal for you to read and understand the code that determines how your phone or car works and whether those devices are safe. It makes it illegal to create fair use videos for expressive purposes, reporting, or teaching. It makes it illegal for people with disabilities to convert ebooks they own into a format they can perceive. EFF and co-counsel at WSGR challenged Section 1201 in court on behalf of computer science professor Matthew Green and engineer Andrew “bunnie” Huang, and we asked the court to invalidate the law on First Amendment grounds.

Despite this law's many burdens on expression and research, the Court of Appeals for the D.C. Circuit concluded that these restrictions are necessary to incentivize copyright owners to publish works online, and rejected our court challenge. It reached this conclusion despite the evidence that many works are published without digital access restrictions (such as mp3 files sold without DRM) and the fact that people willingly pay for copyrighted works even though they're readily available through piracy. Once again, copyright law has been used to squash expression in order to serve a particular business model favored by rightsholders, and we are all the poorer for it.

Integral to the Court’s decision was the conclusion that Section 1201’s ban on circumvention of access restrictions is a regulation of “conduct” rather than “speech.” This is akin to saying that the government could regulate the reading of microfiche as “conduct” rather than “speech,” because technology is necessary to do so. Of course you want to be able to read the microfiche you purchased, but you can only do so using the licensed microfiche reader the copyright owner sells you. And if that reader doesn’t meet your needs because you’re blind or you want to excerpt the microfiche to make your own fair use materials, the government can make it illegal for you to use a reader that does.

It’s a back door into speech regulation that favors large, commercial entertainment products over everyday people using those works for their own, fair-use expression or for documentary films or media literacy.

Even worse, the law governs access to copyrighted software. In the microfiche analogy, this would be microfiche that’s locked inside your car or phone or other digital device that you’re never allowed to read. It’s illegal to learn how technology works under this regime, which is very dangerous for our digital future.

The Court asserts that the existing defenses to the anti-circumvention law are good enough – even though the Library of Congress has repeatedly admitted that they weren’t when it decided to issue exemptions to expand them.

All in all, the opinion represents a victory for rightsholder business models that allow them to profit by eroding the traditional rights of fair users, and a victory for device manufacturers that would like to run software in your devices that you’re not allowed to understand or change.

Courts must reject the mistaken notion that draconian copyright regimes are helpful to “expression” as a general matter rather than just the largest copyright owners. EFF will continue to fight for your rights to express yourself and to understand the technology in your life.

The Federal Communications Commission (FCC) has released draft rules to reinstate net neutrality, with a vote on adopting the rules to come on the 25th of April. The FCC needs to close some loopholes in the draft rules before then.

Proposed Rules on Throttling and Prioritization Allow for the Circumvention of Net Neutrality

Net neutrality is the principle that all ISPs should treat all traffic coming over their networks without discrimination. The effect of this principle is that customers decide for themselves how they’d like to experience the internet. Violations of this principle include, but are not limited to, attempts to block, speed up, or slow down certain content as means of controlling traffic.

Net neutrality is critical to ensuring that the internet remains a vibrant place to learn, organize, speak, and innovate, and the FCC recognizes this. The draft mostly reinstates the bright-line rules of the landmark 2015 net neutrality protections to ban blocking, throttling, and paid prioritization.

It falls short, though, in a critical way: the FCC seems to think that it’s not okay to favor certain sites or services by slowing down other traffic, but it might be okay to favor them by giving them access to so-called fast lanes such as 5G network slices. First of all, in a world with a certain amount of finite bandwidth, favoring some traffic necessarily impairs other traffic. Secondly, the harms to speech and competition would be the same even if an ISP could conjure more bandwidth from thin air to speed up traffic from its business partners. Whether your access to Spotify is faster than your access to Bandcamp because Spotify is sped up or because Bandcamp is slowed down doesn’t matter because the end result is the same: Spotify is faster than Bandcamp and so you are incentivized to use Spotify over Bandcamp.

The loophole is especially bizarre because the 2015 FCC already got this right, and there has been bipartisan support for net neutrality proposals that explicitly encompass both favoring and disfavoring certain traffic. It’s a distinction that doesn’t make logical sense, doesn’t seem to have partisan significance, and could potentially undermine the rules in the event of a court challenge by drawing a nonsensical distinction between what’s forbidden under the bright-line rules versus what goes through the multi-factor test for other potentially discriminatory conduct by ISPs.

The FCC needs to close this loophole for unpaid prioritization of certain applications or classes of traffic. Customers should be in charge of what they do online, rather than ISPs deciding that, say, it’s more important to consume streaming entertainment products than to participate in video calls or that one political party’s websites should be served faster than another’s.

The FCC Should Clearly Rule Preemption to be a Floor, Not a Ceiling

When the FCC under the previous administration abandoned net neutrality protections in 2017 with the so-called “Restoring Internet Freedom” order, many states—chief among them California—stepped in to pass state net neutrality laws. Laws more protective than federal net neutrality protections—like California's should be explicitly protected by the new rule.

The FCC currently finds that California’s law “generally tracks [with] the federal rules[being] restored. (269)” It goes on to find that state laws are fine so long as they do not “interfere with or frustrate…federal rules,” are not “inconsistent,” or are not “incompatible.” It then reserves the right to revisit any state law if evidence arises that a state policy is found to “interfere or [be] incompatible.”

States should be able to build on federal laws to be more protective of rights, not run into limits to available protections. California’s net neutrality is in some places stronger than the draft rules. Where the FCC means to evaluate zero-rating, the practice of exempting certain data from a user’s data cap, on a case-by-case basis, California outright bans the practice of zero rating select apps.

There is no guarantee that a Commission which finds California to “generally track” today will do the same in two years time. The language as written unnecessarily sets a low bar for a future Commission to find California’s, and other states’, net neutrality laws to be preempted. It also leaves open unnecessary room for the large internet service providers (ISPs) to challenge California’s law once again. After all, when California’s law was first passed, it was immediately taken to court by these same ISPs and only after years of litigation did the courts reject the industry’s arguments and allow enforcement of this gold standard law to begin.

We urge the Commission to clearly state that, not only is California consistent with the FCC’s rules, but that on the issue of preemption the FCC considers its rules to be  the floor to build on, and that further state protections are not inconsistent simply because they may go further than the FCC chooses to.

Overall, the order is a great step for net neutrality. Its rules go a distance in protecting internet users. But we need clear rules recognizing that the creation of fast lanes via positive discrimination and unpaid prioritization are violations of net neutrality just the same, and assurance that states will continue to be free to protect their residents even when the FCC won’t.

Tell the FCC to Fix the Net Neutrality Rules:

1. Go to this link
2. For "Proceeding" put 23-320
3. Fill out the form
4. In "brief comments" register your thoughts on net neutrality. We recommend this, which you can copy and paste or edit for yourself:

Net neutrality is the principle that all internet service providers treat all traffic coming through their networks without discrimination. The effect of this principle is that customers decide for themselves how they’d like to experience the internet. The Commission’s rules as currently written leave open the door for positive discrimination of content, that is, the supposed creation of fast lanes where some content is sped up relative to others. This isn’t how the internet works, but in any case, whether an ISP is speeding up or slowing down content, the end result is the same: the ISP picks the winners and losers on the internet. As such the Commission must create bright line rules against all forms of discrimination, speeding up or slowing down, against apps or classes of apps on general traffic in the internet.

Further, while the Commission currently finds state net neutrality rules, like California’s, to not be preempted because they “generally track” its own rules, it makes it easy to rule otherwise at a future date. But just as we received net neutrality in 2015 only to have it taken away in 2017, there is no guarantee that the Commission will continue to find state net neutrality laws passed post-2017 to be consistent with the rules. To safeguard net neutrality, the Commission must find that California’s law is wholly consistent with their rules and that preemption is taken as a floor, not a ceiling, so that states can go above and beyond the federal standard without it being considered inconsistent with the federal rule.

Take Action

Tell the FCC to Fix the Net Neutrality Rules

Generative AI has sparked a great deal of hype, fear, and speculation. Courts are just beginning to analyze how traditional copyright laws apply to the creation and use of these technologies. Into this breach has stepped the United States Copyright Office with a call for comments on the interplay between copyright law and generative AI. 

Because copyright law carries draconian penalties and grants the power to swiftly take speech offline without judicial review, it is particularly important not to hastily expand its reach. And because of the imbalance in bargaining power between creators and the publishing gatekeepers with the means to commercialize their work in mass markets, trying to help creators by giving them new rights is, as EFF advisor Cory Doctorow has written, like trying to help a bullied kid by giving them more lunch money for the bully to take. Or, in the spirit of the season, like giving someone a blood transfusion and sending them home to an insatiable vampire.

In comments to the United States Copyright Office, we explained that copyright is not a helpful framework for addressing concerns about automation reducing the value of labor, about misinformation generated by AI, privacy of sensitive personal information ingested into a data set, or the desire of content industry players to monopolize any expression that is reminiscent of or stylistically similar to the work of an artist whose rights they own. We explained that it would be harmful to expression to grant such a monopoly – through changes to copyright or a new federal right.

We believe that existing copyright law is sufficiently flexible to answer questions about generative AI and that it is premature to legislate without knowing how courts will apply existing law or whether the hypes, fears, and speculations surrounding generative AI will come to be.