California Assembly Committee Pitches ‘Easy Solution’ to Net Neutrality Bill Fight
California Assembly members planned another stab at the state Senate’s net neutrality bill, with a key committee proposing simplified language to mandate compliance with the FCC’s now-reversed order. Assembly Privacy and Consumer Protection Committee staff suggested the change before a Tuesday hearing on SB-822 and after sponsor state Sen. Scott Wiener (D) claimed a different committee “mutilated” his bill (see 1806200048). Net neutrality advocates prefer language passed by the Senate. Lawmakers also could pass state privacy rules after replacing the text of last year’s ISP privacy bill (AB-375) with language similar to a California privacy ballot initiative for November (see 1806220061 and 1806060063).
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Privacy Committee staff highlighted a difficult situation with net neutrality supporters seeking reversal of last week’s amendments by the Assembly Communications and Conveyance Committee. “To preserve the integrity of the institution and the committee hearing process, it is improper for one committee to wholly undo the exact amendments of the prior committee,” the Privacy Committee staff wrote in a bill analysis. The hearing is at 1:30 p.m. and includes SB-1186, to require local law enforcement to have public notice and comment before using new surveillance technologies (see 1805310050).
With ISPs arguing SB-822 goes too far beyond 2015 net neutrality rules, a “relatively easy solution” is simply to require ISPs to comply with exact text of the 2015 rules and prohibit state agencies from contracting with ISPs that don’t comply with that order, staff said. “While the FCC ‘final rules’ are relatively short and in ‘black and white,’ they began on well over 280 pages into a 300-plus page order which informed the interpretation and operation of those ‘final rules.’ To codify just the technical verbiage of the ‘final rules’ at the end of a 313 page order and present that as the FCC’s net neutrality rules to protect and preserve an open internet for consumers, as the FCC understood those same rules, would at best be misinformed about how FCC rules operate, and disingenuous at worst.”
It would be better to reverse last week’s amendments, returning to language passed by the Senate, said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon in an interview. Copying an agency order doesn't make for good legislation, he said. Such an approach would lack teeth, agreed Demand Progress Campaign Director Robert Cruickshank. “Without specific legislative protections against things like creating fast and slow lanes, charging businesses or users fees to access websites [and] zero rating … Californians have no way to actually enforce net neutrality.”
Last week’s amendments “mechanically cut any text that was taken from the 2015 Open Internet Order and left only the text that was in the 2015 Open Internet Rules,” Stanford Law School professor Barbara van Schewick blogged Sunday. “This stripped out all of the protections in the 277-page order that adopted the two pages of rules and explained what they meant.”
“Anything might happen” at Tuesday’s hearing, “but the cards on the table now point toward modest and rickety repairs, rather than complete reversal of [last week’s] damage,” Tellus Venture Associates' President Stephen Blum blogged Monday. Simply incorporating the 2015 rules may be more difficult to enforce than what was proposed in the Senate-passed version of SB-822, he said. “Although the FCC’s decision is chock full of policy analysis and examples, it’s weak on thou shalts and thou shalt nots,” said Blum. “It’s a very poor basis for enforcement by courts that interpret and apply laws, rather than make policy, as the FCC does.”
“A state-based approach to net neutrality policy remains ill-advised,” emailed Mike Montgomery, executive director of CALinnovates, an advocacy group with partners including AT&T and Uber. He said the repealed FCC order “was bad policy in 2015 and three years and countless political and legal disputes haven’t made it age any better.”
The California Senate was to have read the privacy measure a second time Monday, a procedural step before a final third-reading vote. If AB-375 clears the Senate, the Assembly may vote Thursday, Democratic sponsors Assembly member Ed Chau and Sen. Robert Hertzberg said Friday. Senate and Assembly leaders supported the privacy bill, and the ballot initiative’s sponsor, privacy activist Alastair MacTaggart, said he will kill the ballot initiative if the legislature passes the bill by Thursday’s deadline to pull the ballot vote. If the bill fails, “we will proceed to the November election,” said MacTaggart, noting the initiative got about 629,000 signatures. “We are content either way, as we feel that both the legislative solution, and our initiative, provide tremendously increased privacy rights to Californians.”
“The agreement reached with the initiative proponents to move forward with a legislative solution is a significant step in providing California consumers more control over their data,” Chau said. Lawmakers continued to refine the privacy bill's language Monday. The Internet Association, CTIA and other industry groups didn’t comment.
Fervor for privacy rules continued after AB-375 failed last year, with outrage simmering over Facebook and other data breaches, Blum blogged Sunday. “Attention turned to how companies -- of all kinds -- collect, keep and use data about and belonging to consumers.”