Democrats insist the sky will fall without binding net neutrality rules, which will shortly cease to be in effect after the Republican FCC voted to disclaim the underlying legal power claimed by the Democratic FCC in 2015.
But instead of pushing substantive legislation to codify net neutrality (something no Democrat has done since 2011 but Republicans have done twice), Democrats are rallying around the Congressional Review Act — the same tool they denounced last year when Republicans used it to block the FCC’s broadband privacy rules. Their CRA resolution of disapproval would roll back the 2017 Republican FCC order, reinstate the 2015 net-neutrality rules, and (probably) prevent the FCC from ever again disclaiming the sweeping “Title II” powers over broadband cited in the 2015 order.
Locking in Title II common carrier regulation would also increase the “War Powers of the President” crafted back in 1934. Trump, or any future president, could use those Title II-specific powers to require fast lanes for favored content or services in secret — enforced by the military, if necessary.
If you’ve been thinking about worst-case scenarios — say, how Trump might use a “Wag the Dog” war to do things that seem unthinkable today — 47 U.S.C. § 606 should terrify you. Congress gave the President sweeping powers to shut down, or take control of, domestic communications networks, both wired (§ 606(c)) and wireless (§ 606(d)), based merely on proclamations of a state, or threat, of war. For wireless networks, a “state of public peril or disaster or other national emergency” will suffice.
Those two “kill switch” powers don’t depend on whether broadband is a Title II “common carrier” or Title I, lightly-regulated “information service,” so passing the CRA won’t make those parts of a scary law any scarier.
But Title II explicitly gives the President the power to violate net neutrality, while Title I does not. (Congress created Title I status in 1996 specifically to avoid heavy-handed common-carriage regulation.) That’s because a third war power only applies to “carriers,” which Congress equated with “common carriers” (i.e., Title II). Section 606(a) allows the President “to direct that such communications as in his judgment may be essential to the national defense and security shall have preference or priority with any carrier.”
Progressive activists have spent the last four years shouting to the rooftops about the dangers of Internet fast lanes. Even though there’s no actual market for “fast lanes” today, these activists, amplified by comedian John Oliver, succeeded in persuading President Obama to call on the FCC to ban “fast lanes.” That November 2014 YouTube video, in turn, forced the FCC to change its approach entirely, and invoke Title II.
No one paid any attention to Section 606(a), but they should have. If you think “fast lanes” would allow broadband providers to subtly, even secretly, favor their own content, or that of companies they strike prioritization deals with, the thought of giving Donald Trump the power to do just that should have you marching in the streets.
It doesn’t have to be military communications. The statute kicks in whenever Trump “finds [prioritization] necessary for the national defense and security.” Trump might order priority for his Tweets or Fox News Channel content or a Trump Network. (Hugo Chavez, eat your heart out!) It could also mean giving priority to Internet companies in the good graces of the Administration over hostile companies. Such powers could be leveraged to exert indirect influence over content and media companies. The courts might block such favoritism under the First Amendment, but there’s no certainty as to how deeply a court would question a claim of national security necessity.
A careful lawyer might take some comfort in the wording of the statute: While the kill switch powers of Section 606(c) and (d) require only a pre-existing Presidential proclamation — like, say, the 2001 Authorization for Use of Military Force — Section 606(a) applies only “[d]uring the continuance of a war in which the United States is engaged.” There’s a strong argument that this requires a formal Congressional declaration of war — so the AUMF wouldn’t count. The Supreme Court’s 2006 Hamdan decision rejected the Bush administration’s broad claims about President’s war powers absent a formal declaration.
But three important caveats are in order: First, if there were a major terrorist incident, North Korean attack, or other casus belli, the Trump administration might demand a declaration of war precisely because of Hamdan: they wouldn’t be able to claim the kind of implicit executive powers the Bush Administration invoked based solely on an informal authorization to use force. Does anyone really think Congressional Republicans would suddenly start saying no to the White House? Even Congressional Democrats might join them, so don’t assume a change in control of Congress would necessarily prevent a formal declaration of war in a crisis.
Second, no one really knows how litigation over whether Section 606(a)’s fast lane power requires a formal declaration would turn out. And third, perhaps most importantly, just as the Bush administration conducted its warrantless surveillance program in secret, based on legal arguments that courts later rejected, so too might the Trump administration attempt to use Section 606 in secret — citing the “continuance” of the “global war on terror” authorized by the open-ended 2001 AUMF. And just as the Bush Administration got away with its surveillance program until USA Today blew the whistle, so, too, might the Trump Administration — at least for a time.
What makes Section 606(a) more dangerous than the kill-switch powers is that we wouldn’t necessarily know if it were being used. Net neutrality advocates have been warning us for years that even small differences in loading times for websites can subtly steer the market towards faster sites — and it’s hard to know what’s really happening.
As with the Bush Administration’s warrantless surveillance program, the Trump Administration would doubtless try to mandatory prioritization secret. It’s not clear that would work, since Section 606 doesn’t authorize gag orders — but they might try anyway. Technical experts tell me it would be hard for the NSA to secretly meddle with Internet traffic without at least the ISPs themselves realizing it — but that doesn’t mean they might not try. Do we really want to rely on the ISPs themselves to sound the alarm?
They’ll be in a difficult position. Section 606(h) provides stiff criminal penalties for non-compliance with Presidential orders. Among the war powers granted in the statute, only 606(a) provides carriers with legal immunity for complying — the other tool the Bush administration used to strong-arm telephone companies into playing ball with the NSA. Combine those with the vast leverage Title II gives the FCC exerts over the companies it regulates, and it’s not hard to imagine them finding it difficult to resist 606(a) orders to prioritize traffic if the NSA came knocking.
And no, neither the net neutrality rules nor any other FCC rules would stop Trump from mandating prioritization. Section 606(g) (“Limitations upon Presidential power”) allows the President to rewrite FCC rules only to the extent the FCC itself could lawfully do so — but that limit doesn’t apply to 606(a). So Trump could use 606(a) to suspend the FCC’s ban on prioritization — even though the CRA would bar the FCC from doing so.
Section 606(a) would be easier to use in one final respect: Section 606(d) protects wireline communications networks and facilities from being shut down or taken over if both chambers of Congress pass a resolution barring him from using that power. But under 606(a), there’s no way for Congress to stop President Trump from ordering “preference or priority” to be given to his favored communications — other than, of course, passing a law with a veto-proof majority. Once they declare war (and again, maybe even if they don’t), they can’t stop the President from claiming the power to order fast lanes.
In short, passing the CRA could embolden Trump to claim broad, secretive powers to favor Internet content of his choosing. What could be more ironic than a resolution intended to protect net neutrality allowing Donald Trump to, at a whim, order the very opposite of neutrality?
For all their “How Democracies Die” angst, there can’t be a Democrat in Congress who actually wants to open the door to this Orwellian result even a little. That’s all the more reason for them to stop pretending that all Congress needs to do is pass a CRA resolution and declare victory. The only way to codify net neutrality without giving Trump broad powers to violate net neutrality is to pass net neutrality legislation — to the FCC no longer needs to invoke Title II, and Trump can never use Section 606(a) to control the Internet.
Berin Szoka is president of TechFreedom.
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