Even in our current hyper-tribalistic, post-truth reality, you'd have a hard time arguing that Blackburn has been anything but terrible for the health of the internet and consumer rights. Yet somehow, Blackburn just keeps getting rewarded for giving consumers the tech policy equivalent of a giant middle finger.
Shortly after her attacks on net neutrality (Blackburn absolutely adores the idea of letting the biggest companies buy an unfair market advantage from ISPs) Blackburn was promoted to head the Communications and Technology subcommittee. And this week, Blackburn successfully jumped from the House to the Senate, beating challenger and former Tennessee Governor Phil Bredesen to nab the Senate seat vacated by departing Tennessee Senator Bob Corker. Her win was, unsurprisingly, heralded as a big win for the public welfare by the state's political apparatus:
"Marsha Blackburn demonstrated the type of conservative leadership Tennessee voters want in Washington,” National Republican Senatorial Committee Chairman Cory Gardner said in a statement Tuesday evening. “We want to congratulate Senator-elect Blackburn on a hard-fought victory and look forward to her working in the U.S. Senate to confirm conservative judges, push pro-growth reforms and advocate for policies that improve the lives of all Tennesseans."
It's another example where blind partisan fealty tends to trump common sense, resulting in people who can only see in red or blue cheerfully voting against their own best self interests in what winds up being little more than a self-immolating, facts-optional game of team sports. As we've noted constantly, issues like net neutrality really aren't partisan, since an overwhelming bipartisan majority of Americans support this and other basic checks on monopoly power. ISPs and lawmakers just like to frame such tech issues as partisan, as sowing division hinders consensus and helps stall meaningful change and reform.
Last minute efforts by Taylor Swift apparently didn't help convince Tennessee voters that Blackburn's not their ally. Neither did Consumer groups efforts to educate Tennessee voters about Blackburn's continued tendency to screw them; an effort that at one point involved crowdfunding billboards posted in Blackburn's home district:
With Blackburn how holding a more powerful position in the Senate, Tennessee voters (and the rest of us) can look forward to more of the same. Blackburn is always AT&T's first stop when the company wants to shovel some law its lobbyists wrote into the legislative bloodstream. That was made clear when Blackburn pushed both a fake net neutrality bill and a fake privacy bill, both with only one real goal: to prevent tougher state or federal laws from being passed. As giant ISPs continue their relentless assault on both competition and federal and state oversight, expect Blackburn to play an essential, starring role.
On the plus side, a freshly-reconstituted House filled with more net neutrality supporters should slow any telecom-industry efforts to pass wishlist legislation, while providing something vaguely resembling oversight for the Ajit Pai FCC. Still, it's incredible to watch politicians like Blackburn routinely sell out the majority of her constituents on tech policy, then watch those same constituents happily root against their own best self interests by giving her an endless series of promotions.
You'd be hard pressed to find a bigger telecom sector crony than Tennessee Representative Marsha Blackburn. From her attacks on net neutrality and consumer privacy, to her support of SOPA and AT&T-written protectionist state laws hampering competition, it's effectively impossible to find a subject where Blackburn didn't take the side of regional broadband monopolies over consumers. It's a major reason that as Blackburn tries to jump from the House to the Senate (to nab Bob Corker's seat) she's found herself notably behind in the polls in a state Trump won by 26 points.
Last week, Blackburn took time out of her busy schedule to participate in a show pony Senate hearing pushed by entrenched telecom operators. Its purpose: to try and sell the public and lawmakers on the idea that killing net neutrality and allowing things like "paid prioritization" (letting one company buy a network advantage over another) will actually somehow be a good thing.
Despite their "victory" on the net neutrality repeal, large ISPs like AT&T and Comcast are worried. They're worried that the FCC's clumsy repeal will be overturned by the looming court battle, and they're worried about how more than half the states in the nation are now pursuing their own net neutrality rules. That's why they've been pushing (with Blackburn's help) for a fake net neutrality law. One that pretends to nobly "put the issue to bed," but contains so many loopholes as to be useless. Its real purpose: pre-empt tougher state rules, and prevent the FCC's 2015 rules from being re-instated in the chance of a court loss.
To sell this policy turd, ISPs and loyal foot soldiers like Blackburn have been trying to make anti-competitive behavior sound sexy. Like here, when Blackburn tries to claim that ISPs should emulate the TSA and its pre-check program as they explore the prioritization of content:
"Many of you sitting in this room right now paid a line-sitter to get priority access to this hearing. In fact, it is commonplace for the government itself to offer priority access to services. If you have ever used Priority Mail, you know this to be the case. And what about TSA Precheck? It just might have saved you time as you traveled here today. If you define paid prioritization as simply the act of paying to get your own content in front of the consumer faster, prioritized ads or sponsored content are the basis of many business models online, as many of our members pointed out at the Facebook hearing last week."
So one, no competent person would suggest the TSA's security theater efforts are worth emulation. Two, quality net neutrality rules always ban anti-competitive paid prioritization deals for good reason. If an ISP lets, say, Disney buy a speed and latency advantage, that puts companies, startups and non-profits that can't afford to pay that same toll at unfair disadvantage. Such deals might be a great money maker for AT&T and Comcast and good for companies that can afford them, but it remains a terrible idea for anybody that wants the internet to remain relatively open and competitive.
Not coincidentally, Blackburn's proposed net neutrality law (likely written by AT&T) bans all of the ham-fisted things ISPs never really had much interest in (the outright blocking of websites, for example), but turns the other cheek on a laundry list of other potentially problematic behaviors like like paid prioritization.
ISPs and their loyal lawmakers like Blackburn have tried repeatedly to insist bans on paid prioritization hamstring innovative services and things like medical care. But that's never been true: the FCC's 2015 rules didn't ban prioritization (VoIP, health services), just anti-competitive paid prioritization. Worried that their repeal won't hold, ISP lobbyists are back again trying to conflate the two concepts (prioritization versus unfair paid prioritization), while insisting that screwing up the open internet will somehow be efficient, fun and productive.
So we've repeatedly noted how the FCC's assault on popular net neutrality protections sits on pretty shaky legal ground. The agency not only ignored the public in trashing the rules, it ignored the nation's startups, the people who built the internet, and any and all objective data. They also ignored the rampant comment fraud that occurred during the public comment period of the proceeding, a ham-fisted attempt by "somebody" to downplay the massive public opposition to the plan. For good measure the agency also blocked a law enforcement investigation into said fraud and even made up a DDOS attack.
ISP lawyers and lobbyists know their victory could be short lived if looming lawsuits are able to convince a court that the FCC rushed to pass an "arbitrary and capricious order" while disregarding the public and violating FCC procedure. That's why they've begun pushing hard for new net neutrality legislation they're claiming will put the debate to bed, but has one real purpose: to pass flimsy, loophole-filled rules now to prevent the FCC (or a future, less cash-compromised Congress) from passing tougher, better rules down the road.
Just days after Comcast began pushing harder for such legislation, the telecom industry's most loyal ally in the House, Tennessee Representative Marsha Blackburn, began pushing a law that perfectly mirrors everything Comcast asked for. Namely, it makes everything but the most ham-fisted abuses (like outright blocking of websites) legal, effectively codifying federal apathy on net neutrality into law. The law doesn't ban paid prioritization, zero rating, interconnection shenanigans, or any of the areas the modern net neutrality debate currently resides.
To push her fake Comcast and AT&T-written law, Blackburn keeps pushing violently misleading editorials like this one (warning: autoplay video), where she doubles down on a decade of net neutrality falsehoods pushed by the telecom sector. That includes all of your favorite AT&T, Verizon, and Comcast talking points on the subject, ranging from the false canard that the FCC's fairly modest rules destroyed sector investment, to the idea that the real villain here are Silicon Valley tech giants:
"The heavy-handed regulations imposed in 2015 have hurt innovation and decreased broadband investment, and only served to bolster the Big Tech special interests that pose a threat to online free speech."
Again: SEC filings, ISP earnings reports, and countless statements by nearly a dozen ISP CEOs contradicts the claim that the rules hurt broadband investment, but that doesn't stop Blackburn:
"With strong, permanent consumer protections and fewer burdensome federal regulations, internet service providers (ISPs) will again be able to innovate and invest. This will stand in stark contrast to the past two years, when network investment decreased by billions of dollars. We absolutely must reverse that trend, and we will do it with an approach that fits the new, and dynamic digital economy."
But again, the broadband industry is lobbying for changes that go well beyond just killing net neutrality. They're (quite successfully) convincing the government to simultaneously gut FTC, FCC andstate authority over broadband providers almost entirely, creating a massive accountability vacuum for companies that were already some of the least ethical, and least competitive in America. But they're worried that none of this can happen if the courts overturn the FCC's recent vote to repeal the rules, which is where loyal foot soldiers like Blackburn come in.
Like Ajit Pai recently did, Blackburn goes out of her way to malign internet companies like Twitter, throwing a little red meat to a partisan base still upset by the platform's completely-unrelated efforts to rein in the nation's neo-nazi flare up. It's not the massive telecom duopolies with a decade of anti-competitive behavior to their names you should worry about, notes Blackburn, it's Twitter:
"These companies, with market caps that are two to four times that of service providers like Verizon or AT&T, go unregulated when it comes to neutrality – yet they spend millions advocating for heavy-handed regulations to be imposed on the ISPs that actually connect millions of Americans to the internet. This is not simply disingenuous, but it also has the potential to harm consumers."
While Silicon Valley giants have problems of their own (though it's worth clarifying that Google doesn't truly support net neutrality and hasn't for the better part of this decade), Blackburn once again ignores the fact that net neutrality is just a symptom of a lack of competition in broadband.
Users angry with Google (with some exceptions, like advertising) can simply switch to another search engine or e-mail platform. Users don't have to use Twitter. But most users only have access to one or two broadband ISPs, which is where this entire problem originates. Net neutrality violations are just a symptom of a lack of competition in broadband, a problem Blackburn has repeatedly made worse by supporting ISP-written state laws hamstringing competition. Blaming a problem she actively, repeatedly makes worse by pandering to AT&T and Comcast, then blaming Twitter for it is simply obnoxious.
Blackburn, whose blind fealty to giant ISPs helped land her a role as chairman of the Communications and Technology Subcommittee, proceeds to insist that anybody that tries to block her fake net neutrality law is the real enemy:
"You’ll know who the real bad actors are when they try to block or throttle this important legislative effort in 2018."
In reality, the "bad actors" are the ones supporting a ham-fisted repeal of incredibly popular rules that completely ignored the public interest. Blackburn won't be the last lawmaker to push such flimsy legislation. Expect a flurry of similar legislation proposals with tractor-trailer sized loopholes as ISP executives grow increasingly nervous that the looming FCC court battle may not go their way.
As we just got done saying, giant ISPs are well aware that last week's unpopular FCC vote to repeal net neutrality rests on very shaky legal ground. The agency will be facing all manner of lawsuits in the new year from competitors and consumer groups that quite correctly highlight the blatant fraud and bizarre missteps that occurred during the proceeding. Those lawsuits will also argue that the FCC is violating the Administrative Procedure Act by passing a law without proving that the broadband market had changed enough in just two years to warrant such a severe, unpopular reversal (tip: it didn't).
As such, ISPs are already pushing hard to codify the FCC's idiotic and unpopular repeal into law. ISPs like Comcast are claiming they're just so interested in protecting the open internet (after spending millions to dismantle real net neutrality rules) that a law their lobbyists likely wrote is the only path forward now. But these bills have one purpose: to prevent any future FCCs or Congressional lawmakers from passing meaningful rules down the road.
Enter Tennessee Representative Marsha Blackburn, who has for years been a glorified rubber stamp for AT&T and Comcast, going so far as to support state-level laws that hamstring competition and erode local rights. Today Blackburn unveiled the "Open Internet Preservation Act" (pdf), which, as we predicted, bans things like outright throttling, but ignores numerous other possible avenues of abuse by ISPs, including zero rating, paid prioritzation, and interconnection shenanigans. The bill also tries to ban states from trying to protect net neutrality in the wake of federal apathy, another gem ISPs like Comcast have been coincidentally lobbying for the last few months.
"Rep. Blackburn told Breitbart News why she decided to unveil her legislation to codify the laws of a free and open Internet. She said, “When you talk to innovators in the online space, one of the things that is frustrating to them is that the rules of the internet continue to change over the last few years. What we want to do is codify the rules of an open internet."
“What we saw with the Wheeler order in 2015 was really control of the Internet. We are going to put rules in place that will stop the ping-ponging depending on who’s in charge of the FCC. This is an issue that should be decided by Congress,” Blackburn added.
Of course Blackburn would have you ignore the fact that her rhetoric almost exactly mirrors a blog post Comcast posted just a few days ago, or the fact that her bill was likely written by Comcast and AT&T lawyers and lobbyists. She'd also have you ignore that the "innovators" she pays lip service to strongly oppose the repeal of the current rules, as nearly 1000 startups made very clear back in April. Blackburn also took to Twitter to regurgitate numerous debunked industry canards, like the entirely bogus claim that net neutrality rules hurt sector investment:
Obamacare-era "net neutrality" is nothing more than a code word for government takeover of the internet. These regulations stifled internet investment and growth, and gave tech companies a free pass to censor users and block free speech.
Again, these folks couldn't give less of a damn about "protecting the open internet." They're solely looking out for the interests of AT&T, Verizon, Comcast and Charter. And what these ISPs want (and are in the process of getting) is a complete dismantling of both federal and state oversight of telecom duopolies so they can continue abusing the lack of competition in the sector for the foreseeable future. They know the FCC's repeal is in jeopardy of being overturned by the courts, so they're trying to rush through shitty legislation that effectively makes violating net neutrality legal.
It's likely this will be the first of several bills of this type, and the inclination on some fronts will be to suggest that "a bad bill is better than no protections at all." But that's a naive interpretation of what ISPs are attempting here. As we just noted, any ISP-supported net neutrality legislation will ban things ISPs never intended to do (like outright blocking of Netflix), but won't cover any of the more nuanced areas where net neutrality violations are now occurring (usage caps, zero rating, interconnection). Why rush to support a bill that simply acts to make most violations legal?
A better solution is to find away to keep the current rules intact. It's unlikely, but that could occur via use of the Congressional Review Act. Much more likely is the repeal being overturned by the courts, thanks to the FCC's apathy toward fraud and the public interest. Even if ISPs win in the courts, net neutrality fans are better off riding the looming backlash and using it to drive ISP-loyal sycophants out of public office at the polls, then attempting a real net neutrality law later -- when Congress is a little less mindlessly loyal to the desires of some of the least-liked, least-competitive companies in America.
We've argued repeatedly that it's a bad idea to demand that internet platforms like Twitter and Facebook be more proactive in policing content on their services, because it will lead to really bad results -- especially in the political realm. There's been a really dumb move over the past few months, demanding that Twitter kick Donald Trump off Twitter, pointing out that he's pretty clearly violating many of their terms of service. For example, threatening war with North Korea would likely violate the rules against "violent threats (direct or indirect)." And, of course, our President is a walking, tweeting harassment and "hateful conduct" machine. But, Twitter has recently said that it wouldn't kick Trump off the service (which we agree is the right move), because it has a different standard for "newsworthy" tweets, whatever that means.
And, yes, some people will claim that it's unfair to have a double standard, but I think Twitter is correct to not kick Trump off the service. It certainly wouldn't stop the President from getting his thoughts out there, and would only increase the silly martyr act that he and his most vocal supporters love to focus on. But, really, the bigger issue is why anyone should expect Twitter to be doing this kind of decision making in the first place. When you look at other communications systems -- like email or the web in general -- we don't kick people entirely off email or force them to takedown their website just because they say something stupid.
And, when it gets into political content, it gets even sillier. For example, while Twitter won't do anything about Trump (again, the right move...), it did decide to block a campaign ad from Rep. Marsha Blackburn, who is eagerly running for the Senate to take over the seat Bob Corker is vacating. (Update: as noted in the comment, Twitter allowed the video in Blackburn's stream -- or in anyone else's -- they just blocked it from being promoted through Twitter's ad network). The ad sounded inflammatory and stupid, claiming that she "stopped the sale of baby body parts" and Twitter rejected it for being "inflammatory." Of course, all this did was kick the old Streisand Effect into high gear, giving Blackburn tons of free publicity and extra views of her ad, which was posted on YouTube, without having to buy any advertising. Twitter basically gave her a much wider reach for free by rejecting the ad. And, of course, after all the damage was done, Twitter changed its mind.
Now, I tend to think that Blackburn is one of the worst members of Congress (she's terrible on basically every issue we care about here) and would prefer she not move across Congress to be in the Senate, but she should be able to post whatever stupid ad she wants on Twitter, and just let people on Twitter rip it to shreds, rather than being barred from posting such an ad.
It seems pretty straightforward, but we shouldn't want a private company -- especially one as consistently confused about these things as Twitter -- to be the final arbiter of what political ads or political speech are okay, and what is too "inflammatory." That only leads to bad results -- and all of the free publicity Twitter just gave Blackburn's dumb ad will mean that other politicians will seek to create even more ridiculous ads to get the free "bump" from a Twitter ban. That hardly seems healthy for democracy.
Earlier this year you might recall that lawmakers voted along party lines to kill consumer broadband privacy protections. The rules, which large ISPs whined incessantly about, were relatively basic; simply ensuring that ISPs couldn't collect or sell your personal data without being transparent about it and providing working opt out tools. The rules were only proposed after ISPs repeatedly showed they weren't able to self regulate on this front in the face of limited competition, from AT&T's plan to charge more for privacy, to Verizon getting busted for covertly modifying wireless packets to track users without consent.
After a massive lobbying push, the usual loyal ISP allies like Tennessee Rep. Marsha Blackburn rushed to help free these incumbent duopolists from the terror of accountability. In response, many of these lawmakers faced a naming and shaming campaign by consumer advocacy group Fight for the Future, which crowdsourced the funding of billboards erected in their home districts clearly highlighting how they took ISP campaign contributions in exchange for selling consumer privacy down river:
Of course many of those same lawmakers have, as instructed, now shifted their gaze toward supporting the FCC's plan to ignore the public and dismantle net neutrality protections. As a plan B, most of them are being prodded by ISPs to help craft a new net neutrality law. One that pretends to solve the problem, but will be written by industry lawyers to intentionally include so many loopholes as to be arguably useless. This cacophony of self-serving dysfunction again highlights how AT&T, Verizon, Comcast and Charter campaign contributions trump the public interest on a routinely grotesque scale.
Hoping to piggyback on its privacy campaign, Fight for the Future has now similarly-crowdfunded new billboards shaming lawmakers that have breathlessly supported killing popular net neutrality protections. Which politicians are shamed is being determined by a congressional scorecard, which tracks just how cozy politicians are with incumbent telecom duopolies. Needless to say, Marsha Blackburn again took top honors and is being featured again in the group's latest effort:
The group is hoping that this naming and shaming campaign will help shake these lawmakers' constituents out of their apparent slumber:
"Politicians need to learn that they can’t attack free speech on the Internet and expect to get away with it,” said Evan Greer, campaign director of Fight for the Future (pronouns: she/hers), “Voters from across the political spectrum all agree that they don’t want companies like Comcast and Verizon dictating what they can see and do online. No one is fooled by corrupt lawmakers’ attempts to push for bad legislation while they strip Internet users of protections at the FCC. Hundreds of people donated to make these billboards possible. When you come for the Internet, the Internet comes for you.”
The problem, as always, is that folks like Marsha Blackburn have been selling out their constituents for years and are consistently re-elected anyway. Blackburn was a major supporter of SOPA, and is the cornerstone of an AT&T stranglehold over Tennessee's state legislature that's so severe, AT&T lawyers are quite literally allowed to write protectionist state laws protecting the company from anything that even smells like competition. Tennessee is, not at all coincidentally, one of the least connected states in the union for just this reason.
Of course there's any number of reasons for why folks like Blackburn are immune to accountability efforts. Gerrymandering and voter suppression certainly plays a role. But so too does concerted disinformation campaigns that frame kissing Comcast's ass as a heroic quest for freedom, and important technology issues of interest to all (like oh, the internet fucking working) as somehow partisan. Still, you'd like to think that with enough elbow grease and repetition, even folks like Blackburn can't be permanently immune from something at least vaguely resembling accountability.
You might recall that Tennessee Representative Marsha Blackburn recently played a starring role in gutting FCC consumer broadband privacy protections using the Congressional Review Act. It was one of the more bare-knuckled examples of pay to play government in recent memory, and many of the straight GOP-line voters have been getting an earful from their constituents back home. Utterly unmoved, most of those lawmakers have quickly shifted on their heels and are now busy trying to gut net neutrality with the same blatent disregard for public opinion they showed while killing privacy protections.
In what appears to be largely a PR move to try and deflect significant criticism for her large ISP-friendly policies, Blackburn has subsequently introduced the BROWSER Act -- aka the Balancing the Rights of Web Surfers Equally and Responsibly Act. The act, as the FCC's now-discarded rules would have done, requires that consumers must opt in before a broadband provider is allowed to collect and sell subscriber information.
According to a Blackburn press statement on the legislation, killing the FCC's popular privacy protections, then introducing this new bill (which has little more than zero chance of passing for reasons we'll get into) was necessary to eliminate "confusion":
"As a Member of the House Homeland Security Committee's Cybersecurity Subcommittee, internet privacy and security must be a top priority. Step one in that process was to override any regulation that creates more confusion by giving jurisdiction to multiple agencies, only to have them regulate only one-half of the digital world.
Step two in that process is to introduce comprehensive internet privacy legislation that will more fully protect online users in their use of Internet Service Providers (ISPs), search engines and social media,” said Fitzpatrick. “The BROWSER Act does just that. We must offer American citizens real internet privacy protection, not mere lip service which gives internet users false expectations about their level of online security. I encourage all House members who are serious about protecting our constituents' online privacy to join me in advancing this bill."
So, as we already noted in great detail, this appears to be part of a script that was hashed out months ago by the GOP. Step one is to gut FCC oversight authority over one of the least-competitive sectors in American industry by killing the privacy protections, walking back net neutrality, and dismantling the FCC's 2015 decision to classify ISPs as common carriers under Title II of the Communications Act. From there, the plan is to shovel any remaining oversight of giant broadband duopolies to an FTC Blackburn (and the ISPs that adore her) know is ill suited to provide meaningful, real oversight.
It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.
With the attacks on net neutrality and privacy becoming politically toxic, it's highly unlikely that Blackburn's proposal sees any serious support among Democrats. And because it actually would wind up expanding regulatory authority over "edge providers" (Netflix, Google, other content companies), it's not likely to see support among many Republicans, either. According to a joint statement made under the umbrella of the Internet Association, internet companies like Google, Netflix, and Twitter also oppose the new law:
We, along with a broad swath of the American economy, are aware of the BROWSER Act and are tracking the proposal. This bill has the potential to upend the consumer experience online and stifle innovation. Policymakers must recognize that websites and apps continue to be under strict FTC privacy enforcement and are not in an enforcement gap, unlike other stakeholders in the ecosystem.
This is all an arguably bizarre move for a politician that has shown, time and time again, that her very top priority is always the interest of giant ISPs like Comcast and AT&T -- coincidentally her top campaign contributors. Blackburn, who supported SOPA, has pushed legislation repeatedly trying to kill net neutrality under the banner of "restoring freedom." She's also gone out of her way to defend AT&T and Comcast's efforts to pass state-level protectionist laws hindering competition, which is a major reason her home state of Tennesee is one of the least connected states in the nation.
And this new privacy legislation -- which again expands regulation of internet content companies -- is also strange for a lawmaker that has consistently insisted over the years that "regulating the internet" kills innovation:
Which brings us to the multi-million-dollar question: if Blackburn is such an obvious servant to the interests of telecom duopolies, why is she pushing a law that would add regulatory burdens on both ISPs and content companies alike?
As the ACLU was quick to note in their review of the bill, the biggest goal appears to be to preempt a lot of the state and city regulations that have been popping up all over the country in response to the killing of the FCC's rules. More than 17 states have introduced privacy broadband rules in the wake of the death of the FCC rules, and whatever loophole-filled final draft Blackburn submits would be certain to preempt these already tougher protections:
In some cases, state legislation being considered is stronger than what would have been required under the FCC rules. For example, in New Hampshire, a bipartisan bill would prohibit providers from offering discounts to individuals who waive their privacy rights – something the ACLU urged but the FCC declined to do in its rules. Many states have also pressed for limits on not just the use but also the collection of information.
...Skepticism of Rep. Blackburn’s motives is also warranted given her voting history. Rep. Blackburn introduced the legislation to gut the FCC rules. If she had truly been interested in creating parity between the privacy standards applied to edge and internet providers, she could and should have worked to strengthen and replace the rules. Instead, she irresponsibly pushed for reversal of the rules, leaving an enormous privacy gap. Introduction of this legislation, which thus far shows no indication that it will become law and could easily be watered-down, does not remedy this reckless act."
Indeed, killing these state-level privacy protections does appear to be a top GOP priority after the March vote to kill the FCC rules. FCC majority Commissioners Ajit Pai and Mike O'Rielly have already said they plan to somehow prevent states from imposing such protections. You're to ignore that Pai and Blackburn have argued that anti-competitive protectionist laws written by the likes of AT&T are a "states' rights" issue, but now when states are looking to actually protect consumers it's a bridge too far.
But the primary reason Blackburn is pushing this proposal is that she knows it has absolutely no chance of passing, but may provide PR cover for her increasingly-obvious, duopoly-favoring telecom policy proposals ahead of the 2018 elections. Blackburn has been hammered in recent months via giant billboard ads purchased by activists criticizing her privacy sell out in her home state of Tennessee. There's nothing particularly subtle about the campaign:
Either way it's a win/win for Blackburn. If it passes, Blackburn's friends at AT&T and Comcast will ensure it's crafted to be aggressively weaker than state-level laws, overseen by an FTC they know won't have the authority, funding or time to actually police the subject. If it doesn't pass, it still functions as a marketing message designed to try and convince the voters that Blackburn isn't the anti-consumer Comcast coddler her voting record and campaign contributions clearly show she is.
If you want to understand what's wrong with the American broadband industry, you need look no further than Tennessee. The state is consistently ranked as one of the least connected, least competitive broadband markets in the country, thanks in large part to Comcast and AT&T's stranglehold over politicians like Marsha Blackburn. Lawmakers like Blackburn have let Comcast and AT&T lobbyists quite literally write protectionist state laws for the better part of a decade with an unwavering, singular focus: protecting incumbent revenues from competition and market evolution.
The negative impact of this pay-to-play legislature is non-negotiable. One state-run study last year ranked Tennessee 40th in terms of overall broadband investment and availability (pdf), and found that 13% of households (or 834,545 Tennesseans) lack access to any high-speed broadband internet service whatsoever. The study found that the vast majority of Tennessee residents still get internet access through slower services like DSL, wireless or dial-up connections, either because that's all that's available, or because they couldn't afford faster options.
Like twenty other states, Tennessee long ago passed a state law hamstringing towns and cities looking to improve regional broadband networks. As a result, popular municipal broadband providers like Chattanooga's utility-run ISP, EPB, have been banned from expanding its up to 10 Gbps offerings into any more markets. Attempts to repeal the law earlier this year went nowhere after mammoth pressure from incumbent ISP lobbyists. When that didn't work, one lawmaker tried to pass a compromise bill that would have allowed EPB to expand into just one neighboring county.
That proposal was shot down as well, one of the dissenting votes being that of Rep. Patsy Hazlewood, a former AT&T executive.
Tennessee residents have increasingly seen through Tennessee's unwavering fealty to some of the most despised brands in America. Some annoyed state residents have gone so far as to spend their own money to wire the state glacially, hilltop by hilltop. In a feeble attempt to try and placate those tired of expensive, slow broadband, Tennessee lawmakers recently passed HB 0529 or the "Broadband Accessibility Act of 2017." The centerpiece of the bill: throwing $45 million in additional subsidies at ISPs, the majority of which will be enjoyed by AT&T.
Motherboard correctly points out that the state banned EPB from expanding service to those same users without any cost to taxpayers, but was willing to throw additional subsidies at two giant companies with a mixed track record on putting government subsidies to work:
"To be clear: EPB wanted to build out its gigabit fiber network to many of these same communities using money it has on hand or private loans at no cost to taxpayers. It would then charge individual residents for internet service. Instead, Tennessee taxpayers will give $45 million in tax breaks and grants to giant companies just to get basic infrastructure built. They will then get the opportunity to pay these companies more money for worse internet than they would have gotten under EPB's proposal.
"Tennessee taxpayers may subsidize AT&T to build DSL service to Chattanooga's neighbors rather than letting [EPB] expand its fiber to neighbors at no cost to taxpayers," Christopher Mitchell, director of the Community Broadband Networks initiative at the Institute for Local Self-Reliance said. "Tennessee will literally be paying AT&T to provide a service 1000 times slower than what Chattanooga could provide without subsidies."
Given the repeated billions that have been thrown at incumbents that then consistently find ways to wiggle out of the obligations, resistence to the "throw subsidies at giant ISPs with a long, documented history of anti-competitive behavior and hope that does the trick this time" model is understandable. Especially in a state like Tennessee, where holding giant companies accountable for misdirection of telecom funds has never been a priority.
Fortunately, this new bill does make it legal now for electric cooperatives to provide broadband internet access to some areas -- a concession to outraged locals and a small sign of progress. That said, these co-ops will still find themselves hamstrung by Tennessee's other, existing, protectionist laws, which impose all manner of reporting and financing restrictions on anybody not named AT&T or Comcast. Popular companies like EPB -- ranked recently by Consumer Reports as one of the best rated ISPs in the country -- still can't offer service outside of its traditional electric utility footprint under Tennessee state law.
It's ironic, in that ISP lobbyists and loyal lawmakers usually try to justify their state bans on community broadband by pretending they were solely interested in protecting state residents from additional taxpayer spending. Yet this is all pretense to justify protecting large incumbent broadband duopolists from having to actually compete. One lawmaker that's actually trying to eliminate the state's restrictions on community broadband perhaps put it more succinctly:
"What we have right now is not the free market, it's regulations protecting giant corporations, which is the exact definition of crony capitalism."
And yet Tennessee's Marsha Blackburn has been consistently and generously rewarded for the kind of "crony capitalism" she's relentlessly advocated for on the state level. She recently was tagged to replace Greg Walden as the head of the House Energy and Commerce Committee's Subcommittee on Communications and Technology. Since that committee tackles most of the pressing internet-related issues, you can expect Tennessee's particular brand of AT&T and Comcast earlobe nibbling to manifest even more strongly on the federal level moving forward.
If you were to sit down and consciously select a politician that best represents the stranglehold giant telecom companies like AT&T, Verizon and Comcast have over the legislative process, you probably couldn't find a better candidate than Tennessee Representative Marsha Blackburn. From her endless assault on net neutrality, to her defense of awful state protectionist laws written by ISP lobbyists, there has never been a moment when Ms. Blackburn hasn't prioritized the rights of giant incumbent duopolists over the public she professes to serve.
Blackburn has been fairly awful on technology policy in general, from her breathless support of SOPA to her claim that fair use is just a "buzzword" obscuring our desperate need for tougher copyright laws. As such, there should be little surprise that Blackburn has been selected to head the House Energy and Commerce Committee's Subcommittee on Communications and Technology. The subcommittee tackles most of the pressing internet-related issues, with Blackburn replacing Oregon Representative Greg Walden.
Blackburn joins a growing chorus of GOP insiders who have made it a core mission to dismantle net neutrality protections, despite the fact that they have broad, bipartisan appeal among consumers. At least Blackburn has been consistent; she spearheaded the "Internet Freedom Act," which attempted to kill net neutrality by effectively codifying non-net neutrality into law and hamstringing any regulator that tried to protect it. According to Blackburn, this wasn't just because AT&T and Comcast are among her biggest campaign contributors, but because she really, truly adores "innovators":
"Once the federal government establishes a foothold into managing how Internet service providers run their networks they will essentially be deciding which content goes first, second, third, or not at all. My legislation will put the brakes on this FCC overreach and protect our innovators from these job-killing regulations."
Blackburn has also gone out of her way to defend AT&T and Comcast's efforts to pass state-level protectionist laws. These laws, passed in more than nineteen states, prevent towns and cities from improving local broadband infrastructure -- even in instances where incumbent ISPs have refused to upgrade. According to Blackburn, these competition-killing laws -- which serve solely to protect duopoly revenues -- are somehow necessary to protect "free market competition":
"After witnessing how some local governments wasted taxpayer dollars and accumulated millions in debt through poor decision making, the legislatures of states like North Carolina and Tennessee passed commonsense, bipartisan laws that protect hardworking taxpayers and maintain the fairness of free-market competition."
Needless to say, Blackburn's home state of Tennessee consistently ranks as one of the least connected states in the nation as a direct result of her hard work. More recently, Blackburn went so far as to suggest that ISPs should be forced to remove "fake news" from the internet:
"If anyone is putting fake news out there, the ISPs have the obligation to, in some way, get that off the web. And maybe it's time for these information systems to look to have some type of news editor doing some vetting on that. Whether it's the Russians, the Chinese, the Iranians or whomever. You do not want that out there because it's... because it's fake news!"
In other words, Blackburn doesn't believe in protecting a healthy and open internet, thinks letting incumbent ISPs write competition-killing protectionist law is somehow good for broadband competition, consistently complains about government overreach, and yet wants the government to force ISPs to dictate what is or isn't acceptable news, while dramatically expanding draconion and unnecessary copyright law. Clearly she's the perfect choice to lead tech policy toward the twenty-second century -- provided you like living in something akin to a poorly-written dystopian novel.
Tennessee Rep. Marsha Blackburn doesn't have a very good history demonstrating any knowledge of how the internet works. She's generally in favor of two very stupid policies related to the internet. First, getting rid of net neutrality. Second, forcing tech companies to censor the internet to stop "piracy." The fact that her rationales for these two things are completely in conflict with each other doesn't seem to enter her thought process. That is, she claims that there shouldn't be any net neutrality because it's important to keep the internet free from all regulations. Here's Blackburn explaining this point in a nice, quick and utterly idiotic whiteboard video:
If you can't see that, she starts out by talking up how wonderful the internet is just as it is today, and notes that it's necessary for creating jobs. Then she says this:
Some people fear that without government intervention, that entrepreneurs and innovators are going to hijack the internet that you enjoy. The World Wide Web! This hasn't happened. And there has never been a time when a consumer needed a federal bureaucrat to intervene.
Then she talks about passing her legislation to block the FCC "from ever regulating the internet" because "we want to keep it open free and prosperous."
Of course, she's quite willing to sing a different tune when it comes to her other pet projects. She was a major backer of SOPA, of course, which was a bill to regulate the internet and open it up to Chinese-style site-blocking. A few months ago, she also made the nutty claim that the script kiddie botnet hack that took down large parts of the internet would have been stopped if only SOPA had been passed which made no sense at all.
If you can't see that, it's part of a clip of Blackburn on CNN talking about "fake news," where she says:
If anyone is putting fake news out there, the ISPs have the obligation to, in some way, get that off the web. And maybe it's time for these information systems to look to have some type of news editor doing some vetting on that. Whether it's the Russians, the Chinese, the Iranians or whomever. You do not want that out there because it's... because it's fake news! It is not something that is going to be correct. It's going to end up being refuted. But it takes time, effort and energy to do that, and trying to sway or misinform is completely inappropriate, and in my opinion unethical.
So she isn't directly calling for legislation, but any time you have a sitting legislator (not to mention a Trump transition team member...) talking about how internet companies need to censor the internet to do away with "fake news" your ears should perk up. First off, note that she says that refuting fake stories takes "time, effort and energy" but doesn't note that finding "some type of news editor" who can review the news postings of billions of internet users is, um, physically impossible. Does she really not understand the scale of what she's talking about?
Second, I get the feeling that Marsha Blackburn's definiton of "fake news" differs from many other people's -- which is why we've noted that the whole "fake news freakout" is so misguided. The term can mean just about anything -- and all too frequently means "news I disagree with." I'm going to imagine that Rep. Blackburn doesn't much like this article for instance. Does she believe that her friends, the internet service providers, have "an obligation" to get this article "off the web"?
Because that's a pretty serious issue: you have a sitting legislator effectively calling for internet censorship based on a vague standard of news being "fake." Somewhat ironically, Blackburn has been one of the most vocal opponents of the bogeyman of the Fairness Doctrine -- which was an attempt to beat back biased news in the past by requiring "equal time" to opposing views. But Blackburn is constantly freaking out about a non-existent "fairness doctrine" for the internet that she insists was part of the FCC's net neutrality rules (it wasn't, and never was suggested). But her suggestion for having internet companies censor "fake news" seems even worse than a fairness doctrine. Rather than encouraging more speech, Blackburn is flat out supporting having internet companies censor content they deem to be "fake." That's bad.
