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Supreme Court rejects industry challenge of 2015 net neutrality rules

94 points by magoghm 8y ago

AdmiralAsshat 8y ago
More details here: https://arstechnica.com/tech-policy/2018/11/supreme-court-wont-rule-on-legality-of-obama-era-net-neutrality-rules/ https://arstechnica.com/tech-policy/2018/11/supreme-court-wo... I'd like to point out that this is may only be temporary victory. Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms.
- sctb 8y ago
  Thanks, we've updated the link from https://www.theregister.co.uk/2018/11/05/supreme_court_neutrality/ https://www.theregister.co.uk/2018/11/05/supreme_court_neutr....
- jagger27 8y ago
  Any word on why those judges recused themselves?
  - singingboyo 8y ago
    From what I've seen: Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. Roberts has major holdings in Time Warner Cable, now merged with AT&T. AT&T was part of the case, so there's a conflict of interest there.
    - thaumasiotes 8y ago
      > Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. This is an interesting reason to recuse. You're supposed to recuse in cases where you cannot be impartial (or, similarly, where you cannot appear to be impartial, regardless of your inner thoughts). Recusing because the defendant is your brother makes sense. But Kavanaugh was presumably offering a standard, "impartial" judicial opinion when he dissented on the lower court. It's definitely true that he's likely to come into the case at the Supreme Court level with a preformed opinion of the merits. Superficially, that's an obvious reason to recuse. But why? That preformed opinion was, by hypothesis, formed by considering the merits of the case as an impartial judge, which is the only thing he's supposed to do when hearing it in the Supreme Court too.
      - sbov 8y ago
        Because of https://www.law.cornell.edu/uscode/text/28/47 https://www.law.cornell.edu/uscode/text/28/47 It makes sense. When you appeal you want a different person's opinion, not the same person's multiple times.
        thaumasiotes 8y ago
        It makes less sense on closer examination than it does at first glance. I want a different person's opinion when I lose in court, regardless of whether I do appeal or whether I can appeal. But wanting it doesn't mean there's a reason I should get it. I can appeal to a higher court because the higher court has authority over the lower one; the basis for an appeal is that the lower court made a mistake, not that I personally feel that I'd be better off with a judgment going the other direction.
        sbov 8y ago
        Courts make mistakes (in the appealer's view) because people misinterpret evidence/the law. If you get the same people in a higher court the same mistakes will happen again.
        thaumasiotes 8y ago
        But mistakes in the appealer's view don't matter. You win an appeal if the lower court made a mistake in the view of the higher court.
        deleted 8y ago
        [deleted]
  - craftyguy 8y ago
    The article mentions why.
- dragonwriter 8y ago
  > Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms. Even assuming Roberts and Kavanaugh would actually side with the telecoms in substance, the Justices that wanted to take the case did not side with the telecoms or even want to give them a hearing, they said they would have accepted the petition only as a vehicle to direct that the decision be vacated as having been rendered moot; the telecoms want a ruling that under the FCCs statutory authority, it can't order net neutrality. There were zero votes to even give that position a hearing.
  - zerocrates 8y ago
    The USTA (the telecoms) position was that the lower decision should be vacated as moot: Thomas, Alito, and Gorsuch were indeed siding with the telecoms by being in favor of granting cert and vacating the circuit court decision. The (now-surviving) decision upholding the previous FCC order is an inconvenience for the telecoms as it's more or less a roadmap for reintroducing the FCC's previous rules under a Commission with a different makeup. Of course the ideal for them would be to have the case flatly overturned, that was obviously not in the cards once the FCC reversed itself. Vacating the decision would be the next best option (and, to be fair, one that's perfectly defensible as a proper course of action for the Court to take). It was also the new position of the FCC itself, for fairly clear reasons. So it's an interesting case where both parties, by the time of the actual decision, agreed on what they wanted the Court to do (and didn't get it). From the USTA's latest filing: > The petitions for a writ of certiorari should be granted, the decision below vacated, and the case remanded for the court of appeals to dismiss the petitions for review as moot.
- SilasX 8y ago
  Sorry if OT, but I'm kinda surprised Kavanaugh is already doing SC things; I thought there was some delay after swearing in or that the SC schedule was limited to fixed times of year.
  - wool_gather 8y ago
    The schedule of cases is indeed limited to a portion of the year, and he missed the first few days of the session, but once he was sworn in, he was a justice. There's no waiting period.
- kevin_b_er 8y ago
  It is quite narrow and temporary. We are still at risk of the Republican Judiciary deciding that the FCC declining to regulate ISPs on the basis that they don't have the authority means the ISPs are immune to all state laws regulating them.
  - jdmichal 8y ago
    By "all state laws", do you mean "all federal laws"? AFAIK, the FCC is a federal institution and has never upheld state laws. And, AFAIK, several states have re-introduced versions of net neutrality in various ways, specifically to route around the issues of the FCC abandoning any form of enforcement on such rules.
    - kevinh 8y ago
      The FCC is attempting to prevent the state laws from going into place.
    - alphabettsy 8y ago
      The FCC is trying to preempt state laws to prevent that from happening.
- r00fus 8y ago
  Sounds a lot like they're kicking the can to avoid impact to the midterm elections. Kavanaugh for sure is in hiding lest he inflame the Dems even more. They'll put NN on the operating table / torture room in Dec or Jan at the latest.
RcouF1uZ4gsC 8y ago
The Supreme Court is good at avoiding theoretical cases. Basically, the original net neutrality regulations were already rescinded by the Trump administration. Because of this, the Supreme Court has no reason to intervene as it is a moot point.
- deleted 8y ago
  [deleted]
- craftyguy 8y ago
  That's actually not at all what happened here. The Supreme Court decided not to hear challenges to the FCC policies under the Obama administration. In other words, Trump and Pai did not get their way this time.
jwineinger 8y ago
What's with the "Beer enthusiast" comment?
- ergothus 8y ago
  During the confirmation hearings Kavanaugh repeatedly explained his high-school (and presumably college) activities by defensively and repeatedly emphasizing that "I like beer". Regardless of any good/bad quality of it, he was clearly defensive and memorable, and many memes were born. I'd suspect that ~arstechnica~ [Edit: Guardian, link was changed since I first read it] is showing how "hip" and "with it" they are by bonding with their audience on this point - so far as I know, some of those both those for and against Kavanaugh's confirmation made fun of that exchange, so while I'd not be surprised to find an anti-kavanaugh tilt in the author, I suspect the inclusion was for less political and more marketing reasons.
  - AdmiralAsshat 8y ago
    The term "beer enthusiast" was actually used in the Guardian article that was originally submitted--it appears nowhere in the Ars Technical article.
    - deleted 8y ago
      [deleted]
deleted 8y ago
[deleted]
gjsman-1000 8y ago
I might not _like_ this result, but I do understand why Net Neutrality can be regulated or deregulated. Even if the Supreme Court took the case, I'm more curious on what the industry would even defend net neutrality _by_. I mean: Drugs, Birth Control, Healthcare... all able to be regulated. I'm not sure how they would argue against Internet regulation.
- ohithereyou 8y ago
  Changing gears slightly, what would you like regulated about the Internet?
  - erikpukinskis 8y ago
    My understanding is the issue at hand is whether the government can block ISPs from metering and throttling different kinds of traffic differently. Net neutrality = yes, legislators can say all ISPs must be neutral to traffic content Non-neutrality = no, legislators may not regulate the way ISPs differentiate traffic because traffic differentiation is speech
- djsumdog 8y ago
  I think the big difference between the other three is that the Internet and telecommunications in general (even phone and text) are first and foremost, primary means of speech. That is protected by the first amendment. You could make the argument the government cannot regulate it at all (at least to limit it).
aerovistae 8y ago
A real doozy of an excerpt from the article: > Kavanaugh dissented from the ruling upholding net neutrality rules in 2017, arguing that the rules violate the First Amendment rights of Internet service providers by preventing them from "exercising editorial control" over Internet content. Jesus fucking christ.
- djsumdog 8y ago
  I wish there had been less focus on the alleged sexual assault and more focus on the fact that Kavanaugh doesn't understand the constitution (or just ignores it) and supported the Bush administration in defending torture. Keep in mind statements like this are very double edged. Hosting providers are already denying the ability for people to even host platforms. Platforms are de-platforming people (and not all of them are hate groups. Just check out Carey Wedler's ban from Twitter). It's not a huge stretch to then say, ISPs should be allowed to regulate what content flows through their servers. I can't seem to find it, but isn't there another case coming up to the Supreme Court soon over just this issue? You can't deny service to someone due to their race. I really feel like we're getting to the point where that really needs to apply to speech.
  - dragonwriter 8y ago
    > I wish there had been less focus on the alleged sexual assault and more focus on the fact that Kavanaugh doesn't understand the constitution (or just ignores it) and supported the Bush administration in defending torture. Since the sexual asssault allegations came at the tail of the process, had there been attention to the other things (EDIT: or the serial misrepresentation in regard to his role in the Bush Administration detainee policy, which ought to be disqualifying for the federal bench whether or not his actual role was problematic), the sexual assault issue may never have arisen.
  - thaumaturgy 8y ago
    There was significant criticism of him professionally before the multiple allegations of rape were made. It didn't matter. Then the multiple allegations of rape were made. And it still didn't matter. So let's not kid ourselves that there was ever any chance of stopping his confirmation. He's the political version of a made man.
rayvy 8y ago
In the strangest of ways, I hope that ISPs do get the ability to "exercise editorial control" - because I think that will be the proverbial straw that breaks the camels back (i.e., sparks the kind of innovation needed to break the ISP monopoly).
- skybrian 8y ago
  Many websites are encrypted already. What sort of interference did you have in mind? Maybe interference would accelerate that trend a bit, but it doesn't seem to require all that much innovation?
  - richmarr 8y ago
    Does it matter that the content is encrypted? Surely the main issue in a non-neutral world is the throttling of traffic from specific sources based on commercial priorities. The sources can be identified by IP regardless of whether the content is encrypted.
    - skybrian 8y ago
      Okay, they could still throttle. I was thinking of other things like ad injection, DNS redirection, and so on.
- nisa 8y ago
  > i.e., sparks the kind of innovation needed to break the ISP monopoly How so? Internet is infrastructure, LTE is infrastructure (from the same ISPs) - mesh networks don't scale due to inefficient wifi and too little spectrum. You can't break physics. The innovation you have is paying for a VPN and pay up for your non-ISP-netflix traffic. What do you think would be possible? If it's over the air it will be regulated and licenced (i.e. non public spectrum) and if it's not over the air you have huge costs nobody is willing to pay to build a network (even Google ditched Fiber due to costs?)
  - ypeterholmes 8y ago
alphabettsy 8y ago
People here have been worried about providers like GoDaddy when this excerpt arguably has the potential to be much worse; “Kavanaugh dissented from the ruling upholding net neutrality rules in 2017, arguing that the rules violate the First Amendment rights of Internet service providers by preventing them from "exercising editorial control" over Internet content.“

94 points by magoghm 8y ago

More details here: https://arstechnica.com/tech-policy/2018/11/supreme-court-wont-rule-on-legality-of-obama-era-net-neutrality-rules/ https://arstechnica.com/tech-policy/2018/11/supreme-court-wo... I'd like to point out that this is may only be temporary victory. Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms.

sctb 8y ago
Thanks, we've updated the link from https://www.theregister.co.uk/2018/11/05/supreme_court_neutrality/ https://www.theregister.co.uk/2018/11/05/supreme_court_neutr....
jagger27 8y ago
Any word on why those judges recused themselves?
- singingboyo 8y ago
  From what I've seen: Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. Roberts has major holdings in Time Warner Cable, now merged with AT&T. AT&T was part of the case, so there's a conflict of interest there.
  - thaumasiotes 8y ago
    > Kavanaugh dissented on the lower court ruling (as it happened while he was still part of said lower court). So, he recused himself from re-hearing the case. This is an interesting reason to recuse. You're supposed to recuse in cases where you cannot be impartial (or, similarly, where you cannot appear to be impartial, regardless of your inner thoughts). Recusing because the defendant is your brother makes sense. But Kavanaugh was presumably offering a standard, "impartial" judicial opinion when he dissented on the lower court. It's definitely true that he's likely to come into the case at the Supreme Court level with a preformed opinion of the merits. Superficially, that's an obvious reason to recuse. But why? That preformed opinion was, by hypothesis, formed by considering the merits of the case as an impartial judge, which is the only thing he's supposed to do when hearing it in the Supreme Court too.
    - sbov 8y ago
      Because of https://www.law.cornell.edu/uscode/text/28/47 https://www.law.cornell.edu/uscode/text/28/47 It makes sense. When you appeal you want a different person's opinion, not the same person's multiple times.
      - thaumasiotes 8y ago
        It makes less sense on closer examination than it does at first glance. I want a different person's opinion when I lose in court, regardless of whether I do appeal or whether I can appeal. But wanting it doesn't mean there's a reason I should get it. I can appeal to a higher court because the higher court has authority over the lower one; the basis for an appeal is that the lower court made a mistake, not that I personally feel that I'd be better off with a judgment going the other direction.
        sbov 8y ago
        Courts make mistakes (in the appealer's view) because people misinterpret evidence/the law. If you get the same people in a higher court the same mistakes will happen again.
        thaumasiotes 8y ago
        But mistakes in the appealer's view don't matter. You win an appeal if the lower court made a mistake in the view of the higher court.
        deleted 8y ago
        [deleted]
- craftyguy 8y ago
  The article mentions why.
dragonwriter 8y ago
> Roberts and Kavanaugh recused themselves, and they both would have voted in favor of the challenge if they had voted. If at any point in the future the issue is retried and the two justices don't recuse themselves, a majority of the SCOTUS would side with the Telecoms. Even assuming Roberts and Kavanaugh would actually side with the telecoms in substance, the Justices that wanted to take the case did not side with the telecoms or even want to give them a hearing, they said they would have accepted the petition only as a vehicle to direct that the decision be vacated as having been rendered moot; the telecoms want a ruling that under the FCCs statutory authority, it can't order net neutrality. There were zero votes to even give that position a hearing.
- zerocrates 8y ago
  The USTA (the telecoms) position was that the lower decision should be vacated as moot: Thomas, Alito, and Gorsuch were indeed siding with the telecoms by being in favor of granting cert and vacating the circuit court decision. The (now-surviving) decision upholding the previous FCC order is an inconvenience for the telecoms as it's more or less a roadmap for reintroducing the FCC's previous rules under a Commission with a different makeup. Of course the ideal for them would be to have the case flatly overturned, that was obviously not in the cards once the FCC reversed itself. Vacating the decision would be the next best option (and, to be fair, one that's perfectly defensible as a proper course of action for the Court to take). It was also the new position of the FCC itself, for fairly clear reasons. So it's an interesting case where both parties, by the time of the actual decision, agreed on what they wanted the Court to do (and didn't get it). From the USTA's latest filing: > The petitions for a writ of certiorari should be granted, the decision below vacated, and the case remanded for the court of appeals to dismiss the petitions for review as moot.
SilasX 8y ago
Sorry if OT, but I'm kinda surprised Kavanaugh is already doing SC things; I thought there was some delay after swearing in or that the SC schedule was limited to fixed times of year.
- wool_gather 8y ago
  The schedule of cases is indeed limited to a portion of the year, and he missed the first few days of the session, but once he was sworn in, he was a justice. There's no waiting period.
kevin_b_er 8y ago
It is quite narrow and temporary. We are still at risk of the Republican Judiciary deciding that the FCC declining to regulate ISPs on the basis that they don't have the authority means the ISPs are immune to all state laws regulating them.
- jdmichal 8y ago
  By "all state laws", do you mean "all federal laws"? AFAIK, the FCC is a federal institution and has never upheld state laws. And, AFAIK, several states have re-introduced versions of net neutrality in various ways, specifically to route around the issues of the FCC abandoning any form of enforcement on such rules.
  - kevinh 8y ago
    The FCC is attempting to prevent the state laws from going into place.
  - alphabettsy 8y ago
    The FCC is trying to preempt state laws to prevent that from happening.
r00fus 8y ago
Sounds a lot like they're kicking the can to avoid impact to the midterm elections. Kavanaugh for sure is in hiding lest he inflame the Dems even more. They'll put NN on the operating table / torture room in Dec or Jan at the latest.

RcouF1uZ4gsC 8y ago

The Supreme Court is good at avoiding theoretical cases. Basically, the original net neutrality regulations were already rescinded by the Trump administration. Because of this, the Supreme Court has no reason to intervene as it is a moot point.

deleted 8y ago
[deleted]
craftyguy 8y ago
That's actually not at all what happened here. The Supreme Court decided not to hear challenges to the FCC policies under the Obama administration. In other words, Trump and Pai did not get their way this time.

jwineinger 8y ago

What's with the "Beer enthusiast" comment?

ergothus 8y ago
During the confirmation hearings Kavanaugh repeatedly explained his high-school (and presumably college) activities by defensively and repeatedly emphasizing that "I like beer". Regardless of any good/bad quality of it, he was clearly defensive and memorable, and many memes were born. I'd suspect that ~arstechnica~ [Edit: Guardian, link was changed since I first read it] is showing how "hip" and "with it" they are by bonding with their audience on this point - so far as I know, some of those both those for and against Kavanaugh's confirmation made fun of that exchange, so while I'd not be surprised to find an anti-kavanaugh tilt in the author, I suspect the inclusion was for less political and more marketing reasons.
- AdmiralAsshat 8y ago
  The term "beer enthusiast" was actually used in the Guardian article that was originally submitted--it appears nowhere in the Ars Technical article.
  - deleted 8y ago
    [deleted]

deleted 8y ago

[deleted]

gjsman-1000 8y ago

I might not _like_ this result, but I do understand why Net Neutrality can be regulated or deregulated. Even if the Supreme Court took the case, I'm more curious on what the industry would even defend net neutrality _by_. I mean: Drugs, Birth Control, Healthcare... all able to be regulated. I'm not sure how they would argue against Internet regulation.

ohithereyou 8y ago
Changing gears slightly, what would you like regulated about the Internet?
- erikpukinskis 8y ago
  My understanding is the issue at hand is whether the government can block ISPs from metering and throttling different kinds of traffic differently. Net neutrality = yes, legislators can say all ISPs must be neutral to traffic content Non-neutrality = no, legislators may not regulate the way ISPs differentiate traffic because traffic differentiation is speech
djsumdog 8y ago
I think the big difference between the other three is that the Internet and telecommunications in general (even phone and text) are first and foremost, primary means of speech. That is protected by the first amendment. You could make the argument the government cannot regulate it at all (at least to limit it).

aerovistae 8y ago

A real doozy of an excerpt from the article: > Kavanaugh dissented from the ruling upholding net neutrality rules in 2017, arguing that the rules violate the First Amendment rights of Internet service providers by preventing them from "exercising editorial control" over Internet content. Jesus fucking christ.

djsumdog 8y ago
I wish there had been less focus on the alleged sexual assault and more focus on the fact that Kavanaugh doesn't understand the constitution (or just ignores it) and supported the Bush administration in defending torture. Keep in mind statements like this are very double edged. Hosting providers are already denying the ability for people to even host platforms. Platforms are de-platforming people (and not all of them are hate groups. Just check out Carey Wedler's ban from Twitter). It's not a huge stretch to then say, ISPs should be allowed to regulate what content flows through their servers. I can't seem to find it, but isn't there another case coming up to the Supreme Court soon over just this issue? You can't deny service to someone due to their race. I really feel like we're getting to the point where that really needs to apply to speech.
- dragonwriter 8y ago
  > I wish there had been less focus on the alleged sexual assault and more focus on the fact that Kavanaugh doesn't understand the constitution (or just ignores it) and supported the Bush administration in defending torture. Since the sexual asssault allegations came at the tail of the process, had there been attention to the other things (EDIT: or the serial misrepresentation in regard to his role in the Bush Administration detainee policy, which ought to be disqualifying for the federal bench whether or not his actual role was problematic), the sexual assault issue may never have arisen.
- thaumaturgy 8y ago
  There was significant criticism of him professionally before the multiple allegations of rape were made. It didn't matter. Then the multiple allegations of rape were made. And it still didn't matter. So let's not kid ourselves that there was ever any chance of stopping his confirmation. He's the political version of a made man.

rayvy 8y ago

In the strangest of ways, I hope that ISPs do get the ability to "exercise editorial control" - because I think that will be the proverbial straw that breaks the camels back (i.e., sparks the kind of innovation needed to break the ISP monopoly).

skybrian 8y ago
Many websites are encrypted already. What sort of interference did you have in mind? Maybe interference would accelerate that trend a bit, but it doesn't seem to require all that much innovation?
- richmarr 8y ago
  Does it matter that the content is encrypted? Surely the main issue in a non-neutral world is the throttling of traffic from specific sources based on commercial priorities. The sources can be identified by IP regardless of whether the content is encrypted.
  - skybrian 8y ago
    Okay, they could still throttle. I was thinking of other things like ad injection, DNS redirection, and so on.
nisa 8y ago
> i.e., sparks the kind of innovation needed to break the ISP monopoly How so? Internet is infrastructure, LTE is infrastructure (from the same ISPs) - mesh networks don't scale due to inefficient wifi and too little spectrum. You can't break physics. The innovation you have is paying for a VPN and pay up for your non-ISP-netflix traffic. What do you think would be possible? If it's over the air it will be regulated and licenced (i.e. non public spectrum) and if it's not over the air you have huge costs nobody is willing to pay to build a network (even Google ditched Fiber due to costs?)
- ypeterholmes 8y ago

alphabettsy 8y ago

People here have been worried about providers like GoDaddy when this excerpt arguably has the potential to be much worse; “Kavanaugh dissented from the ruling upholding net neutrality rules in 2017, arguing that the rules violate the First Amendment rights of Internet service providers by preventing them from "exercising editorial control" over Internet content.“