Media Alliance, along with the Benton Institute for Broadband and Society (https://www.benton.org/) were intervenors in the federal court case against the FCC’s latest attempt to establish nation-wide net neutrality for the Internet. Today we found out that the Sixth Circuit used the recent Supreme Court decision in Loper that weakened the Chevron Doctrine, to overturn net neutrality rules. This is the second time in the last eight years that nation-wide net neutrality rules have been overturned.
Here in the state of California, we are lucky because Senator Scott Weiner introduced and Gov Gavin Newsom signed, California net neutrality laws that were already sustained in federal court in the Mozilla decision. We have net neutrality protections, but because of today’s terrible decision, most of the rest of the country will not.
This matters because an Internet that isn’t neutral allows providers to block, throttle and deprioritize online speech and content based on who pays more and who pays less creating “slow lanes” that can isolate small businesses, creative works or unpopular news and information. The entire value of the Internet to ordinary people is its openness and its ability to facilitate connections that otherwise would never happen. While we feel lucky to live in California, which did the right thing, it is deeply disappointing that the courts failed to protect the open Internet and that Congress has not made network neutrality the law of the land. We call on the rest of the states to follow the lead of California, Oregon, Washington and Vermont and immediately pass state-level net neutrality laws to protect the open Internet.
Tracy Rosenberg, Executive Director, Media Alliance
In the wake of the COVID pandemic revealing the cracks in the digital divide, the State of California made a historic investment in Internet infrastructure with the construction of a middle mile connection to enable high-speed Internet delivery all over the State. The program that encompasses the statewide middle mile network and provides grants for service branching off that network is optimistically titled “Broadband For All”.
But is it really “broadband for all” if California’s tenants and the problems they have accessing Internet service is left out of the conversation?
Even now, in an age when most of us use the Internet, one in five Californians lack reliable and affordable service. Most are lower-income people of color and rural residents.
“We are living in an unjust and inequitable moment of technology, where some have and some don’t” Assemblymember Mia Bonta, D-Oakland, who authored AB 2239
The author of AB 2239 said it would make California the first state in the nation to codify the Federal Communication Commission’s newly adopted definition of digital discrimination into state law.
“We know that equitable access to fast, reliable and affordable Internet is a non-negotiable part of everyday life,” she said.
The FCC’s new rules adopt a “disparate impact” standard for identifying digital discrimination, meaning broadband providers could be in violation, even if they are not intentionally withholding adequate Internet from a protected group.
“The disparate impact standard has long been applied in education, in housing and health care, and more. And what this bill is doing is essentially saying it also needs to be applied to broadband access,” Bonta said. “Regardless of the inputs that you have around broadband intent and the different programs that we set up if there is a disparate impact — and we know that there is — then that’s considered discrimination.”
Catch up fast:
“It’s not acceptable to have a California where such an essential infrastructure is not equally accessible to all Californians,” said Miguel Santana, president and CEO of the California Community Foundation.
“The most common criticism I’ve heard is that [AB 2239] is not necessary because there is no intention to discriminate. And that the industry has implemented a number of programs to help create access to low-income, marginalized communities,” Santana said.
“The outcomes speak for themselves,” he added, referencing the fact that researchers and activists say low-income Californians pay more for worse service than those in wealthy neighborhoods because there’s often no competition in poor neighborhoods to compel Internet providers to compete on service and price.
Remote technology performance management company Hubble IQ partnered with Oakland Undivided to run nearly half a million speed tests across Oakland. ‘Over 75% of the Internet connections we tested never reach the speed threshold to be considered served,’ Oakland Undivided director Patrick Messac said. (Courtesy of Hubble IQ)
The context:
The advocacy group Oakland Undivided recently partnered with remote technology performance management company, Hubble IQ, to run nearly half a million speed tests across Oakland.‘The facts of the digital divide in California are stark. Race and income are the best predictors of whether you have access to the Internet in your neighborhood, how reliable it is and what you pay for it.’Patrick Messac, director, Oakland Undivided
“Over 75% of the Internet connections we tested never reach the speed threshold to be considered served,” said Oakland Undivided director Patrick Messac. “The facts of the digital divide in California are stark. Race and income are the best predictors of whether you have access to the Internet in your neighborhood, how reliable it is and what you pay for it.”
The big picture:
“In many cases, I would say that discrimination is often not per se the intent. Maximizing profit and delivering value to shareholders is the intent,” Tracy Rosenberg of Media Alliance wrote. The advocacy group is a party to the 8th Circuit proceeding where the FCC’s rules, which AB 2239 aims to align with at the state level, are being challenged.
“Because of history, market conditions and existing societal divides, the intent of maximizing shareholder value leads inexorably to actions that exacerbate digital inequity,” Rosenberg added.
The opposing view:
Contacted for comment, a spokeswoman for Charter Communications’ company, Spectrum, responded that it is still reviewing the legislation but that “Spectrum Internet plans, download speeds and regular prices are not only exactly the same in every ZIP code we serve in California but also across our entire 41-state service area.”
AT&T, another major player in the state, referred KQED to Cal Chamber, which lobbies on behalf of the broadband industry. In a letter to the Assembly Communications & Conveyance Committee, which is hearing AB 2239 on Tuesday, Cal Chamber argued, “We do not want to repeat the FCC’s mistakes in California, which would risk provoking costly litigation and delaying the deployment,” of ongoing universal connectivity programs.
The bottom line:
This early in the legislative session, it’s hard to anticipate whether the bill will survive or how its language might be changed in the coming months to mollify industry-backed critics or forestall lawsuits.
But Bonta said that if her bill becomes law, California will send a clear signal to the rest of the country to consider Internet connectivity as a social justice issue.
Media Alliance, in partnership with Great Public Schools New and with legal representation by the Lawyers Committee for Civil Rights (LCCR) has been granted intervenor status in the 8th Circuit of the Court of Appeals to protect the FCC’s new digital discrimination rules.
The DD rules are a historic first that define the discriminatory provision of digital services (including broadband) as practices that result in disparities, whether or not the “intention” to discriminate can be proven.
This is a huge advance in digital rights law, as it is perniciously hard to prove intent, even when outcomes of certain practices are clearly discriminatory.
Online Harms Need A Structural Solution: Ham-Handed Censorship Won’t Fix It
There is no doubt about it. Internet 2.0 made some people a lot of money. The quandary of the early 2000’s of how to monetize the Internet was answered by the rise of surveillance capitalism, and those positioned to grab the data in Silicon Valley have made (and in some cases lost) vast fortunes.
But as the early 2000’s receded, it became abundantly clear that the economic miracle of the monetized Internet had grave societal harms. Not just the obvious one of the institutionalization of an oligopoly of Big Tech firms who had scaled beyond any semblance of real competition, but kitchen sink harms that included the exploitation of children and youth, sexual abuse, black markets for harmful drugs and guns and the spread of virulent disinformation.
Not surprisingly, the large-scale distribution and increasing visibility of harmful content led to desires to make the “bad content” go away, some broadly recognized as such and other more ambiguously characterized as such depending on ideology.
We are excited to announce that we are looking for an experienced campaign lead to kick start our social media accountability work with the Facebook Users Union.
Please see the job announcement below and help us find the perfect person!
Janine Jackson: While an ethics fellow at Harvard, young programmer and activist Aaron Swartz downloaded articles en masse from the academic database JSTOR, triggering the aggressive pursuit of MIT’s IT department, and eventually what’s been described as a grand jury runaway train gone off the rails. Threatened with decades in prison and a seven-figure fine because, in the words of US Attorney Carmen Ortiz, “stealing is stealing whether you use a computer command or a crowbar,” Swartz took his own life in 2013. After his death, it was revealed that he, in fact, had authorized access to JSTOR from MIT.
The persecution of Aaron Swartz was a sign of the animus with which some system-representing actors will go after relatively powerless individuals they choose to make examples of. It’s also been taken up as a call to advance the demand to liberate data, for regular citizens to be able to get the information they need to confront power, and to have a say in decisions affecting them.
Joining us now to talk about that work is Tracy Rosenberg, executive director of Media Alliance and co-coordinator of the group Oakland Privacy. Welcome back to CounterSpin, Tracy Rosenberg.
