After Attacking Random Hollywood Supporters Of Net Neutrality, Ajit Pai Attacks Internet Companies

from the why? dept

So, we already talked about FCC chair Ajit Pai's odd attacks on a small group of Hollywood celebrities for daring to support net neutrality, but his other point of attack seemed even more random: internet companies. Remember, the whole point of Pai doing this -- according to his very own words -- is to get the government out of the internet and to allow for what he calls "internet freedom." But, it's funny, because that's not really the message you'd get if you heard Pai speaking over the past few days. In his talk on Tuesday he seemed to be suggesting that perhaps Twitter, in particular, needed a heavy dose of regulation:

Anyway, the criticism of this plan comes from more than just Hollywood. I’m also well aware that some in Silicon Valley have criticized it. Twitter, for example, has said that it strongly opposes it and “will continue to fight for an open Internet, which is indispensable to free expression, consumer choice, and innovation.”

Now look: I love Twitter, and I use it all the time. But let’s not kid ourselves; when it comes to an open Internet, Twitter is part of the problem. The company has a viewpoint and uses that viewpoint to discriminate. As just one of many examples, two months ago, Twitter blocked Representative Marsha Blackburn from advertising her Senate campaign launch video because it featured a pro-life message. Before that, during the so-called Day of Action, Twitter warned users that a link to a statement by one company on the topic of Internet regulation “may be unsafe.” And to say the least, the company appears to have a double standard when it comes to suspending or de-verifying conservative users’ accounts as opposed to those of liberal users. This conduct is many things, but it isn’t fighting for an open Internet.

This is, of course, playing to his political base, who are currently angry at Twitter. But... it's also... strange. Both of the examples he brings up are misleading or were overblown. We were among those who mocked Twitter for blocking Blackburn's ad, but as a bunch of people, who chided us in the comments, correctly noted, no one stopped Blackburn from posting the tweet -- just from promoting it as an advertisement on Twitter's ad platform. Which is really different than blocking content -- and, not only that, but Twitter backed down within hours of this becoming public, admitting it was a mistake. The story about Twitter "warning users" that "a link to a statement by one company on the topic of Internet regulation 'may be unsafe'" is also exaggerated. Twitter's sketchy anti-spam/anti-malware detector for links, very briefly, accidentally warned that AT&T's blog may be unsafe. Once again, this lasted for a very short time, and was clearly a mistake by the filter.

Indeed, these examples serve to undermine Pai's whole point. First of all, having someone with regulatory power directly claim that "Twitter is the problem" while suggesting (misleadingly) that it's unfairly censoring content is... just strange for Pai. It sounds like he's suggesting that Twitter needs to institute some sort of "fairness doctrine" which is a policy basically universally opposed by Republicans, and especially Pai. Hell, just last month, Pai said the following:

Pai also discussed the FCC's history with the Fairness Doctrine, which was eliminated in 1987. When in force, the doctrine required stations to devote some programming to controversial issues of public importance and to air contrasting views on those issues.

"We learned that it was an affront to the First Amendment to have the government micromanaging how much time a particular broadcast outlet decided to devote to a particular topic," Pai said today.

Moreover, "it was an administrative nightmare. You had FCC employees literally spending hours upon hours listening to broadcasts, watching them, and logging to the second how much time a broadcaster spent on one side of the issue vs. the other," Pai said.

And yet, now, with his comments about how Twitter filters, he certainly seems to be hinting at the idea that Twitter should be forced to implement a sort of "fairness doctrine" itself.

But the bigger issue is that Pai is directly saying this in response to the company opposing his plans. It's a very Trumpian move. Rather than respond to the actual points raised by Twitter, Pai is attacking them and implicitly threatening them with excessive regulation. While pretending to be the great deregulator. What a hypocrite. He goes on:

And unfortunately, Twitter isn’t an outlier. Indeed, despite all the talk about the fear that broadband providers could decide what Internet content consumers can see, recent experience shows that so-called edge providers are in fact deciding what content they see. These providers routinely block or discriminate against content they don’t like.

This is conflating a variety of different things -- and again, certainly appears to be Pai pining for a fairness doctrine on the internet (but not for internet access) just because internet companies have supported net neutrality. But the larger point is that he's deliberately comparing apples to orangutans. Internet access providers -- whom Pai is looking to free up to do whatever the hell they want -- are clear natural monopolists. They control the last mile to the home and the vast majority of Americans have no real competition in those providers. And they control THE WHOLE PIPE, meaning they can legitimately completely block users' access or degrade it or cause other problems. The so-called "edge providers" are completely different. They all have competitors. They don't control overall access. There's no monetary cost to switching or avoiding them.

The examples from the past year alone are legion. App stores barring the doors to apps from even cigar aficionados because they are perceived to promote tobacco use. Streaming services restricting videos from the likes of conservative commentator Dennis Prager on subjects he considers “important to understanding American values.” Algorithms that decide what content you see (or don’t), but aren’t disclosed themselves. Online platforms secretly editing certain users’ comments. And of course, American companies caving to repressive foreign governments’ demands to block certain speech— conduct that would be repugnant to free expression if it occurred within our borders.

It's pretty odd to couch this as a "free expression" argument, because the courts have made it clear that filtering decisions by the platforms are, themselves, protected under the First Amendment. And, as we've discussed, the Prager lawsuit is silly and going nowhere fast. So far, all of the actual examples that Pai has tossed out are... bad examples. They don't actually show what he wants them to show and they just underline how weak his evidence is.

But the larger point is that if YouTube doesn't want to host your content, there are lots of other ways to host your content. But if Verizon says "fuck you" and you don't have any other options than Verizon, you're screwed. That's why net neutrality matters so much for internet access providers. This attempt to turn the issue around on so-called "edge providers" has long been the distraction flag attempted by the big broadband players, but it's meaningless. Complaining that Google's algorithms decide what you see and what you don't -- well, what the hell does he want? Google is a search engine. The whole point of it is to rank links based on search criteria. Is Pai arguing that they shouldn't rank at all and just throw up random results any time anyone does a search?

As for the fact that these companies have caved to some foreign governments to take down content -- we agree, that's repugnant. And we've said so many times and urged these companies to take stronger stands where they could. But... it's not just "repressive foreign governments" who have been pressuring these platforms to take down content. It's the US government as well. Remember, as we speak, we have Congress rushing to pass a law in SESTA that will require platforms to remove lots of content or face criminal liability. We have that same Congress threatening new regulations on Facebook, Twitter and Google for the supposed crime of allowing Russian propaganda to exist on those platforms. We have the US government telling these same tech platforms to magically stop ISIS. And, frankly, Twitter especially took a much stronger "free speech" stance for years and got slammed for it over and over again, often by US government officials. To now argue that their decision to do some filtering (often badly) is somehow an affront, after they were pressured into doing so, often by this very same US government, is just ridiculous.

In this way, edge providers are a much bigger actual threat to an open Internet than broadband providers, especially when it comes to discrimination on the basis of viewpoint. That might explain why the CEO of a company called Cloudflare recently questioned whether “is it the right place for tech companies to be regulating the Internet.” He didn’t offer a solution, but remarked that “what I know is not the right answer is that a cabal of ten tech executives with names like Matthew, Mark, Jack, . . . Jeff are the ones choosing what content goes online and what content doesn’t go online.”

Except what happened with Cloudflare was quite different. Could you ever imagine AT&T President Randall Stephenson posting about the moral dilemma over whether or not AT&T should do something that might harm some customers? Cloudflare was addressing a serious issue by kicking off a discussion. AT&T just fucks over users at basically every opportunity. Comcast didn't discuss a moral dilemma it faced when throttling BitTorrent. It hid from it. AT&T didn't discuss the moral dilemma it had in blocking the use of Facetime.

For Pai to use the fact that Cloudflare's Matthew Prince held an open and transparent conversation about this against him, while enabling the broadband companies to continue their fuckery in secret, is incredibly hypocritical.

Nonetheless, these companies want to place much tougher regulations on broadband providers than they are willing to have placed upon themselves.

Except, that's ridiculous. Again, one is core access infrastructure. One is edge-providers. There aren't any "net neutrality" regulations you can place on edge providers that make sense. It would lead to things like no spam filtering, and no ranked search results. That's nonsensical.

So let’s be clear. They might cloak their advocacy in the public interest, but the real interest of these Internet giants is in using the regulatory process to cement their dominance in the Internet economy.

This one is pure bullshit. First off, as we've noted, the biggest, most dominant, internet companies -- Google and Facebook -- have more or less sat out net neutrality fights for the past few years. Indeed, both companies actually were against net neutrality in other countries. Without net neutrality, Google and Facebook can actually expand their dominant positions, because if anyone can pay up to Verizon, Comcast and AT&T to get preferred treatment, it's Google and Facebook.

It's the smaller internet companies who get screwed. That's why the most vocal opponents to Pai's plan have not been Google or Facebook. But over 1,000 startups who know how much damage Pai's plans will do, in part by cementing Google and Facebook's position in the market. So, for Pai to claim that internet companies are supporting net neutrality for their own dominance... there's no evidence to support that at all. Indeed, without net neutrality it's much harder for new entrants, since they can't cut the same kinds of deals with the access providers.

And here’s the thing: I don’t blame them for trying. But the government shouldn’t aid and abet this effort. We have no business picking winners and losers in the marketplace. A level playing field, not regulatory arbitrage, is what best serves consumers and competition.

And that's the most hilarious statement of all, given that Pai has spent his entire time as chair tilting the playing field towards three companies: Verizon (his former employer), Comcast and AT&T.

On Wednesday, Pai continued his attacks on internet platforms, in some ways contradicting his statements from just a day earlier. You see, now he's upset that these platforms allow people to be rude to him online. Because, what the fuck, nothing matters anymore:

In a way, one could say that ‘social media’ is perhaps the most inapt phrase ever coined. It allows us to stay in touch while keeping a distance. It has sped the breakdown in human interaction. It has fed the unfiltered id at the expense of genuine understanding. And it has to some extent enabled the worst of human impulses — the drive to associate only with one’s own and to exclude the ‘other.’”

So, uh, then what should Twitter do. Should it take steps to reduce this kind of thing as it sounds like you now want -- or should it filter. And if it filters, then you go back to your complaints from the day earlier that how dare Twitter filter content that Pai and his supporters like.

I guess if Pai's point is to prove that we don't want the internet regulated by the likes of someone like himself, because his viewpoints are nonsensical and contradictory -- well sure. But it's an odd strategy to bet on "I'm so crazy, you don't want me to regulate the internet." And, of course, that, itself, totally misrepresents the 2015 open internet rules -- which again only apply to bad behavior by access providers that harm the public.

Either way, Pai seems to now be channeling his boss, the President. His arguments use his political pulpit to badger anyone who disagrees with him, refuse to address actual issues, and make points that are nonsensical and self-contradictory. The simple fact is that the public wants an open and free internet. And Pai is looking to kill that, no matter how many times he pretends his order helps the internet. The only people who seem to support Pai's plan have connections to the big broadband players, and that should tell you something pretty clearly.

Filed Under: ajit pai, fcc, filtering, first amendment, free speech, intermediary liability, net neutrality, platforms

Absent Facts To Support Repealing Net Neutrality, Ajit Pai Wildly Attacking Hollywood Tweeters

from the well,-that's-one-strategy dept

As the old lawyer saying goes: "When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on your side, pound the table." It appears that FCC chair Ajit Pai has taken that to heart. Neither the law, nor the facts are on his side with regards to his attempt to gut net neutrality, so he's done the modern equivalent of pounding the table: blame Hollywood and the internet companies for the fact that almost everyone disagrees with his plan to kill net neutrality.

The law is against him, because in order to reverse the order from the previous FCC, Pai needs to show that this change is not "arbitrary and capricious." Many people falsely assume that the FCC can just make whatever rule it wants, and thus with every change of the FCC the rules can flip flop. But that's not how it works. While the courts give strong deference to administrative agencies in their decision-making capabilities, one area where the courts will push back is if a regulatory change is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." The courts have already upheld the 2015 Open Internet Order by Tom Wheeler as legitimate, where that FCC showed that reclassifying broadband as a Title II service was perfectly reasonable based on the changes to the market conditions since broadband was declared a Title I information service a decade or so earlier. So, for Pai's plan to actually pass judicial scrutiny, he has to prove that the market has changed so much in the past two years, that an obvious correction is necessary. So far, the only thing he's been able to rely on are clearly bogus studies that are easily debunked by the companies themselves in their statements to Wall Street about the impact of the 2015 rules. Thus, both the rules and the law are against him.

Of course, rather than face up to the fact that the vast majority of Americans (Democrats, Republicans, everyone) support keeping net neutrality rules in place, Pai has spent the last week or so only retweeting his supporters and ignoring detractors entirely. And, now, apparently, his "pounding the table" is to lash out at famous Hollywood stars... and internet companies (note: not internet access companies), as if they're the problem.

On both Tuesday and Wednesday he decided to lash out. In this post, we'll focus on the weird lashing out at famous people, and in a follow up, we'll talk about his misguided attacks on internet companies. But, really, it's kind of frightening that Pai -- who has regulatory power over some actions of the entertainment industry would randomly call out some actors and slam their pro-net neutrality tweets. How dare they do such a thing, according to Ajit Pai.

Next, I’d like to take on the main criticisms I’ve heard directed against the plan and separate fact from fiction—one claim at a time. And given that some of the more eye-catching critiques have come from Hollywood celebrities, whose large online followings give them out-sized influence in shaping the public debate, I thought I’d directly respond to some of their assertions.

He then proceeds to namecheck Kumail Nanjiani, Cher, Mark Ruffalo, George Takei, and Alyssa Milano -- claiming to rebut each of their tweets that he found offensive. Not surprisingly, with each one he either misrepresents what these actors said, or the facts around what his plan will do. It's almost pathological.

For Nanjiani, Pai repeats his big lie that he's just returning things to where they were pre-2015, and that it will be just like the way the internet was from 1996 through 2015.

Perhaps the most common criticism is that ending Title II utility-style regulation will mean the end of the Internet as we know it. Or, as Kumail Nanjiani, a star of HBO’s Silicon Valley put it, “We will never go back to a free Internet.”

But here’s the simple truth: We had a free and open Internet for two decades before 2015, and we’ll have a free and open Internet going forward.

As we've explained in fairly great detail, that's hogwash. Since 2004, every previous FCC chair has sought to put forth and enforce net neutrality rules, and from 2008 on, they've been shot down by the courts every time, saying that to enforce the net neutrality rules the FCC wanted, it had to reclassify under Title II. At no point was the internet under the regulatory regime that Pai is pushing with his order.

Regarding Cher, he stated:

Another concern I’ve heard is that the plan will harm rural and low-income Americans. Cher, for example, has tweeted that the Internet “Will Include LESS AMERICANS NOT MORE” if my proposal is adopted. But the opposite is true. The digital divide is all too real. Too many rural and low-income Americans are still unable to get high-speed Internet access. But heavy-handed Title II regulations just make the problem worse! They reduce investment in broadband networks, especially in rural and low-income areas. By turning back time, so to speak, and returning Internet regulation to the pre-2015 era, we will expand broadband networks and bring high-speed Internet access to more Americans, not fewer.

Except, again, there is nothing in the rules that are onerous. Well, unless you're trying to screw over subscribers. As successful smaller ISP Sonic has noted, the only regulatory burden from Title II is if you're behaving badly towards customers. That's why over 40 small ISPs told Pai that they supported keeping the rules, and that removing the 2015 order gives the giant broadband companies -- Verizon, Comcast and AT&T -- too much power to cut them out of the market. For Pai to argue that this order will magically restore competition and broadband deployment is laughable.

And, on a separate note, for someone claiming to support expanding rural and low-income broadband, Pai has some serious explaining to do. Since taking over the FCC he's eliminated rules that stopped telcos from ditching copper networks, he's argued that a single broadband provider can count as "sufficient competition," has downgraded what counts as broadband to pretend there's more competition when there isn't, and has basically made up out of thin air claims that uncompetitive markets are competitive. In short: Pai is not credible on this. He's done everything to give more power to the giant internet access providers, who have shown little interest in providing broadband to rural and low-income households.

Pai's "responses" to Mark Ruffalo and George Takei were similarly misleading (a key point with Ruffalo is that Pai totally misinterpreted Ruffalo's tweet, which was concerned about giant ISPs controlling the internet, for the government "controlling" the internet -- which it does not), but let's jump forward to his response to Alyssa Milano:

Shifting gears, Alyssa Milano tweeted, “We’ve faced a lot of issues threatening our democracy in the last year. But, honestly, the FCC and @AjitPaiFCC’s dismantling of #NetNeutrality is one the biggest.” I’m threatening our democracy? Really? I’d like to see the evidence that America’s democratic institutions were threatened by a Title I framework, as opposed to a Title II framework, during the Clinton Administration, the Bush Administration, and the first six years of the Obama Administration. Don’t hold your breath—there is none. If this were Who’s the Boss?, this would be an opportunity for Tony Danza to dish out some wisdom about the consequences of making things up.

First off, the reference to "democracy" by Milano isn't specifically about Title I v. Title II, but about how the internet itself works. A weakened internet, controlled by a few giant monopolists, who have the power to block or diminish access to content can absolutely harm democracy. But, even more to the point, the fact that Pai is ignoring the fact that the overwhelming majority (98.5% by one report) of unique -- non-bot, non-pre-filled form -- comments to the FCC on this matter supported keeping the rules.

Meanwhile, one of Pai's mentors and strongest supporters -- who lead the Trump transition team for the FCC and recommended Pai become chair -- Jeff Eisenach showed exactly the contempt he feels towards "democracy" when it comes to the FCC, directly spitting on the idea that the FCC should reflect democratic ideals:

So... maybe Pai and Eisenach should confer on whether Verizon, Comcast and AT&T want them to be supporting democracy this week or undermining it. Because, they seem to be confused.

Meanwhile, it appears that Pai assumed these Hollywood folks didn't understand the issue so they wouldn't possible hit back with facts. Not so with Milano, who responded in fairly great detail about why net neutrality is quite important to democracy, and why Pai is being misleading in his claims.

Either way, the whole thing is weird. Tons and tons of people have been speaking out on this issue. Why Pai decided to pick on five famous actors/singers, when they're hardly a representative sample is anyone's guess. Perhaps he's hoping that his audience would think that the vast, widespread criticism and backlash he's facing was just driven by "liberal" Hollywood. Perhaps he's hoping that by naming famous names it will distract from his lack of facts. But all it really highlights is just how weak Pai's case really is.

Stay tuned for our next post on his even odder decision to attack internet companies.

Filed Under: ajit pai, alyssa milano, cher, fcc, george takei, hollywood, kumail nanjiani, mark ruffalo, net neutrality