SANDY DAVIDSON: California may have enough clout to reshape internet rules

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Sandy Davidson is a professor at the Missouri School of Journalism and a Curators’ Teaching Professor at MU and is an attorney for the Missourian.

An issue that should be important to anybody who uses the internet and to all internet service providers is net neutrality. Net neutrality’s basic principle is that everybody who uses the internet will be treated equally, or neutrally.

Two-to-1, California lawmakers wanted net neutrality, and so did Gov. Jerry Brown, also known as “Governor Moonbeam.” On Sept. 30, he signed into law California’s net neutrality provisions.

Unfortunately, Senate Bill 822, titled the “California Internet Consumer Protection and Net Neutrality Act of 2018,” doesn’t lend itself to a catchy acronym. “CICPANNA,” however it’s pronounced, sounds more like an exotic fish or high-calorie dessert than a law designed to provide equal access to the internet.

The law applies not only to all “broadband Internet service providers” but also to “any service provided to customers in California that provides a functional equivalent ... .”

A couple of the law’s major provisions prohibit internet service providers from (1) “Blocking lawful content” or (2) “Impairing or degrading lawful Internet traffic on the basis of Internet content.”

In enacting this law, California says it’s exercising its police power. Imagine Governor Moonbeam, dressed as Superman, fighting off the evil villains who, for nefarious purposes, might choose to block or throttle some aspiring users from sharing their content with their fellow netizens.

But NOT SO FAST, says the Federal Communications Commission. On Dec. 14, 2017, under Chairman Ajit Pai, the FCC voted to abolish the Obama-era anti-blocking and anti-discrimination rules. The FCC says there will be no federal net neutrality rules and, furthermore, nobody else can establish net neutrality rules. This country will be a net-neutrality-free zone.

The FCC claims its special power to ward off all intruders from its territory, known as the power of federal pre-emption, primarily because of the “commerce clause” of the U.S. Constitution. Article 1, Section 8, Clause 3 grants Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Congress created the FCC and delegated to it a lot of regulatory authority.

But that federal special power is pitted against California’s police power. CICPANNA says that California’s Legislature “finds and declares” that “This act is adopted pursuant to the police power inherent in the State of California to protect and promote the safety, life, public health, public convenience, general prosperity, and well-being of society, and the welfare of the states population and economy, that are increasingly dependent on an open and neutral Internet.”

CICPANNA continues, saying that “Almost every sector of California’s economy, democracy, and society is dependent on the open and neutral Internet that supports vital functions regulated under the police power of the state.”

The law lists vital functions such as police, emergency and health services, utilities, transportation, government services and voting, education, economic activity and environmental protection.

The same Sunday that Governor Moonbeam signed the law, the Justice Department filed suit against California. But other states have also reacted to the FCC’s stance on net neutrality. Washington was first, passing legislation in March that says broadband services may not “Block lawful content” or “Impair or degrade lawful internet traffic on the basis of internet content ... .”

According to the National Conference of State Legislatures, “Net neutrality legislation has been introduced in over half of the states.” Besides Washington, Oregon and Vermont have passed net neutrality laws, and governors have signed net neutrality executive orders in six states — Hawaii, New Jersey, New York, Montana, Rhode Island and Vermont.

In Missouri in 2018, Rep. Mark Ellebracht, a Democrat from Clay County, sponsored net-neutrality legislation, HB 1994, which stalled.

Perhaps Justice Department suits will become like a whack-a-mole game, with the Justice Department whacking down one state’s net neutrality rules just to see another state, and then another, popping up with net neutrality rules.

Also, attorneys general from 22 states have filed suit against the FCC over net neutrality.

But California is perhaps special because so many internet giants have chosen California for their headquarters. California’s pre-eminence was demonstrated in a Missouri case that sparked nationwide interest and outrage.

In October 2006, 13-year-old Megan Meier hanged herself in St. Charles. The tragedy began when Megan and a neighborhood girl had a falling out. The girl’s mother, Lori Drew, then created a fake MySpace persona, 16-year-old “Josh Evans.”

For six weeks, “Josh” courted Megan online. Then he turned on her the night before her death, telling her she was a “bad person” and that “the world would be a better place without you.”

When the cruel prankster’s identity became known, Missouri prosecutors wanted to prosecute Drew. But back then, Missouri didn’t criminalize cyberbullying. Now Missouri, and all other states, have laws prohibiting cyberbullying, but Missouri couldn’t create a cyberbullying law to retroactively apply to Drew’s disgusting behavior.

In a full-court press to find Drew guilty of something, a federal prosecutor from California asserted jurisdiction over Drew because MySpace servers were located in Los Angeles. The jury found Drew guilty of three counts of violating the federal Computer Fraud and Abuse Act by accessing a computer without authorization when she violated MySpace’s terms of service with her fraudulent “Josh Evans” postings.

The New York Times reported this was “what legal experts said was the country’s first cyberbullying verdict ... .” But Judge George Wu threw out Drew’s conviction, saying, “You could prosecute pretty much anyone who violated terms of service.”

A major point is that the MySpace servers were located in California. Indeed, California is the hub of a lot of computer-company activity.

When Yahoo wanted to challenge a French ruling against it because Yahoo had made some violations of the French law prohibiting sales of Nazi paraphernalia possible, Yahoo mounted its challenge in California. Yahoo’s headquarters sits in Sunnyvale, California.

Google’s headquarters, the “Googleplex,” is located in Mountain View, California. Facebook is headquartered in Menlo Park, California.

With so much business activity swarming around so many internet giants headquartered there, California may well have more interest in laws controlling the internet than any other state. In short, Governor Moonbeam’s state may have more power in court than the FCC and the Justice Department have anticipated.

Sandy Davidson, Ph.D., J.D., teaches communications law at the Missouri School of Journalism. She is a Curators’ Distinguished Teaching Professor and the attorney for the Columbia Missourian.

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