Issa’s theoretical freeze on Internet rules could spell disaster

By Stephen C. Webster
Wednesday, November 28, 2012 15:34 EDT
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Congressman Darrell Issa (R-CA). Photo: AFP.
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Rep. Darrell Issa (R-CA) this week asked Internet users to help him piece together legislation that would effectively ban all new Internet regulations for the next two years.

While the legislation has not yet been officially proposed, Issa took to the link sharing forum Reddit on Tuesday with a bold pitch for crowd-sourced public policy, asking users for input. If the bill is ultimately passed by Congress, it would ban Congress and all other government agencies from implementing rules that “would require individuals or corporations engaged in activities on the Internet to meet additional requirements or activities.”

Though perfectly in-line with the Republican Party’s traditional anti-regulatory stance, the bill is bad news for Internet freedom advocates and anyone worried about the nation’s cyber-security.

U.S. Internet service providers (ISPs) agreed last year (PDF) to begin implementing a so-called “copyright alert system” that would snoop on individual users’ web traffic and intervene in the event that the system thinks copyright infringement is taking place. Users caught up to six times may face a variety of disciplinary actions under the scheme, up to and including blocking certain websites, turning the users’ bandwidth almost entirely off or requiring users to participate in a “copyright education” course to have their service restored.

The system was established without any input from Congress, with numerous corporations from big tech, Hollywood and the recording industry agreeing on a voluntary arrangement that the Electronic Frontier Foundation calls “fatally flawed” from the ground up.

When thousands of Internet users across the U.S. start getting kicked off their favorite websites or find that their bandwidth has dwindled down to nothing thanks to this system, it’s sure to echo all the way up to the halls of Congress, as it has in other countries that implemented similar schemes. That’s where Issa’s bill would be useful — not to Internet users, but to the corporations that own the Internet’s real-world infrastructure.

The draft legislation, titled The Internet American Moratorium Act — which bears the acronym “IAMA,” a reference to Reddit’s popular question and answer threads — would prevent Congress, the FCC and all other governing bodies from doing anything about it, leaving the furor to die down in the intervening years.

Furthermore, a case being heard this week by the U.S. Court of Appeals for the District of Columbia could complicate matters immensely if the court rules in favor of telecom giant Verizon, which is seeking to overturn the FCC’s “net neutrality” rules. Net neutrality has been called the First Amendment of the Internet, and mandates that wired Internet providers treat all data traffic equally instead of giving preference to some sites while others are slowed or blocked entirely.

The D.C. Court of Appeals has already ruled against the FCC on this matter once before, after cable giant Comcast argued in 2010 that the FCC’s rules violate the corporation’s right to free speech. The court was unanimous in their agreement, insisting that the FCC did not have the authority to implement so-called “common carrier” rules on the Internet in the same way they’re applied to telephone systems and electric grids.

Should the court rule again that the FCC lacks authority to enforce network neutrality, the Internet could become a vastly different place in two years’ time. Net neutrality proponents fear that premium services offered on costly “super-tiers” with massive bandwidth could draw in companies like Facebook, Google and others, effectively “cable-izing” the most popular online destinations while the so-called “public internet” slows down and flounders from lack of corporate investment.

With the hands of Congress and the president bound by Issa’s crowd-sourced legislation, little could be done to change that.

In addition, Issa’s draft legislation would mean that the next Congress still cannot pass key cyber security legislation, which the president and industry leaders say is crucial for protecting against cyber attacks against critical choke points in the U.S., like electric grids and nuclear facilities. Repeated attempts at such legislation failed in the Senate after the controversial Cyber Intelligence Sharing and Protection Act passed the House with Issa’s support.

While the draft bill does make an exception for matters of national security, that’s only applicable in the event of an “existential threat” that could conceivably “destroy or irreversibly cripple a significant portion of a critical network.”

The language would also specifically tie the president’s hands in the midst of such a threat by blocking him from requiring “an agency or department to promulgate any rules or regulations that have not already otherwise been implemented into law.” Such legislation could set up a major confrontation between Congress and the president in the coming years if President Barack Obama decides to move forward with an oft-rumored executive order intended to firm up the nation’s cyber defenses.

Republican members of Congress have warned that Obama’s potential unilateral action on cyber security could have unforeseen consequences if it gives the government greater authority over how private industry protects itself online. However, an alleged draft of the order that leaked in September gave little in the way of specifics as to what exactly the president may do.

Stephen C. Webster
Stephen C. Webster
Stephen C. Webster is the senior editor of Raw Story, and is based out of Austin, Texas. He previously worked as the associate editor of The Lone Star Iconoclast in Crawford, Texas, where he covered state politics and the peace movement’s resurgence at the start of the Iraq war. Webster has also contributed to publications such as True/Slant, Austin Monthly, The Dallas Business Journal, The Dallas Morning News, Fort Worth Weekly, The News Connection and others. Follow him on Twitter at @StephenCWebster.
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