Archive for the 'Intellectual Property' Category

How do the Courts Handle Emojis, Part 2: Emoji Law

Earlier this week, we discussed how the courts have handled emojis and emoticons in the past. They’re well equipped to interpret these issues–from smiley faces to champagne and squirrels. Despite the complications inherent to the medium of emojis and emoticons we discussed last time, they’ve consistently found a way to work out their meaning. Perhaps most importantly, the courts clearly do not discount emojis and emoticons when determining the meaning of evidence.

So how does this background translate when it comes to individual questions of law? The answer is quite complicated as how “emoji law” works varies substantially from topic to topic. However, we’ll address one of the most common questions related to emojis–can sending an emoji be sexual harassment? We’ll turn from there to what is likely the most complex issue when it comes to emojis and emoticons–their intellectual property treatment.

emoji_1Can Emojis Be Sexual Harassment?

Is sending a suggestive emoji–such as a kissy face or eggplant (commonly used to represent a phallus)- sexual harassment? This is a common question to hear but the answer to this is very simple–yes it absolutely can. However, like all evidentiary issues it will be a matter of interpretation for the courts.

Sexual harassment requires serious or pervasive conduct, because of the plaintiff’s gender, that is unwelcome. This means that if a boss (or even a coworker) sends a kissy face text to an employee every day after work, that could likely qualify.

Even one sufficiently suggestive string of emojis could rise to the level of sexual harassment. The cause of action does not require economic or psychological harm to succeed, just a situation which a reasonable person would consider creating a hostile work environment.

This means it’s a case by case issue and the court will need context to rule on the issue. However, it’s a safe policy to adopt to not send flirtatious emojis to coworkers or employees.

Intellectual Property and Emojis

We’ve talked about situations where emojis and emoticons come into play as evidence to interpret. However, in the realm of intellectual property the emojis and emoticons themselves become the center of attention as they can be protected by both copyright and trademark law. But the protections available to both are justifiably quite limited. This is an issue which has been deeply discussed by Santa Clara Professor Eric Goldman.

Copyright protection applies to any minimally original work of authorship as soon as it is fixed in a tangible medium–regardless of registration. This means that, while registration is necessary for an infringement lawsuit, copyright protection theoretically attaches to individual emojis and emoticons as soon as they are made. The originality standard is quite low and 2D art is explicitly included in copyright law. Indeed, around 100 emoticons and emojis have already received the protection of copyright law.

This means that emojis and emoticons presumptively qualify for copyright in most situations. However, since they are so simplistic their protection is incredibly minimal.

Type on a page is generally not protected at all, which rules out the simplest of emoticons such as a basic smiley face. More complex emoticons such as “putting on sunglasses” (•_•) / ( •_•)>⌐■-■ / (⌐■_■) may clear this threshold. Even still, there are many more protected emojis than emoticons with emojis more than tripling the number of successful copyrights that emoticons have received.

However, both emojis and emoticons have issues which limit the strength of their marks. Since they are so simple, merger doctrine limits them. This means that, because there are a very limited number of ways of expressing what they represent, they only get protection against near identical representation. For example, there are dozens of variations of the gun emoji between platforms and its unlikely any of them could enforce a copyright against another.

What’s more, scènes à faire is a doctrine like merger which holds that copyright does not protect stock characters, settings, or events that are common to a subject matter or medium because they are commonplace and lack originality. This means that nobody can have the full rights to the idea of a smiley face, a gun, a car, etc.

While copyright protection does exist for emojis and emoticons, it is likely that it is generally so thin as to protect against only virtually identical reproductions. What’s more, no matter the protection on emojis, personal non-commercial use of emojis is very likely fair use.

Fair use is an equitable defense for de minimis use of something protected by copyright. However, fair use is an evidence heavy multiple factor test. This means results are hard to nail down with absolute certainty. However, a fair use defense in a situation like the one discussed above would be quite strong.

Even beyond copyright protections, there is the potential that somebody could seek to get trademark protection on an emoji or even turn their own branding into an emoji for public use as part of a sort of viral advertising campaign.

Experts on the issue, such as Santa Clara Law Professor Eric Goldman, fear the potential of somebody getting a trademark on a common emoji and using that mark to hunt down use–similar to how patent and copyright trolling works.

Goldman himself acknowledges that such lawsuits and the underlying marks are unlikely to be particularly strong. Trademarks protect against consumer confusion and must identify a good or service to be confused with before an issue arises.

Use in conversation certainly wouldn’t qualify. To even have a small chance, and this is a very small chance, the emoji would have to be a particularly unique one and the defendant would have to use it in some sort of marketing or advertising to promote their own goods or services.

However, as is common with patent trolls prosecuting a weak patent, an “emoji troll” might threaten the lawsuit then seek a quick settlement for less than the usual costs of the initial phases of a lawsuit.

One additional issue with branding using emojis–or turning your logo itself into and emoji–is the issue of genericide. We’ve discussed this issue a few times before and the issue here is much the same as why business owner’s are typically advised not to use their brand names as verbs.

Genericide is where your brand name is such common parlance that it is not specifically associated with your brand anymore–Kleenex for example. Google has faced genericide claims a number of times over the phrase “googling,” although it has never lost these arguments in court.

If you make your mark an emoji, it might take on a totally different meaning in the public’s eyes and undercut your trademark protection. This is speculative and no court has ever addressed this issue, but it is something to keep in mind. There are certainly more than a few emojis that have taken on a meaning in common conversation that one would not normally expect–for instance you should probably be careful about using snake and eggplant emojis.

A Growing Issue Worldwide

The use of emojis as evidence has skyrocketed in the last two years, both here in the U.S. and abroad. Courts have dealt with the issue as far away as Israel and New Zealand. However, the issue is only going to continue to grow. Fortunately courts are well equipped to interpret something like an emoji or emoticon–even if the meaning of the emojis themselves can be hard to pin down.

Emoji use is likely going to continue to grow and evolve. This means we’ll only see more cases like this in future. For now, be careful how you use your emojis. You may accidentally be entering a contract with that flamenco dancer!


Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

The Battle for the Internet: State Action on Net Neutrality

After the FCC ruling on net neutrality, several states have taken independent action to make these requirements a part of their state law and give you back the consumer protections that go along with net neutrality rules. For those unfamiliar with the situation, the FCC has recently repealed requirements that internet service providers (ISPs) not provide preferential treatment to different types of internet traffic, throttle users, or outright blocking content it doesn’t like. This repeal of consumer protections, despite substantial public outcry against the move from people of both political parties, opens the door for ISPs selling the internet in bundles like cable, censoring content by slowing it down or blocking it, and putting businesses over a barrel to force paid prioritization. The move incensed many politicians, as well as the public, and some have acted on the issue.

States which have taken legislative steps in the last week or so include New York, Washington, and California with California having two different laws to help maintain your protections. Several state attorney generals have also begun the process of bringing lawsuits challenging the FCC ruling. These laws and the lawsuits will both face serious challenges–both legal and political–if they hope to make any real headway. Let’s look at these recent steps and the stumbling blocks they will face as they move forward.

net neutralityProposed State Net Neutrality Laws

In California, lawmakers have approached net neutrality from two different angles. First, State Senator Scott Wiener out of San Francisco has proposed SB 822, was introduced on this last Wednesday–January 3rd–and approaches the issue as a regulatory issue through the California Public Utilities Commission. Another California Senator, Kevin de León out of Los Angeles, has introduced SB 460 which outright reenacts the consumer protection requirements of net neutrality as a state law requirement to operate in California. Since their recent proposal, quite a few lawmakers have asked to ask as co-authors to these laws.

Currently SB 822 is fairly simple, perhaps too much so to be effectively enforced. However, it will likely see substantial changes if it is ultimately passed. As it stands, it provides new duties to the California Public Utilities Commission (PUC). The PUC would oversee ISPs and ensure that they comply with the net neutrality provisions previously enforced by the FCC. Where the ISPs do not comply, the law would prevent them from receiving any state contracts, renewing California state franchises, or use any utility poles owned by California as part of their network. Taken together, these rules would represent both an extreme expense to ISPs and, in some situations, make operation within the state extremely logistically difficult.

SB 460, on the other hand, takes a more direct tact. It would outright make it illegal for ISPs to violate net neutrality provisions such as requiring businesses to pay for prioritization either to avoid throttling or to be given a internet “fastlane.” It would also make it illegal for ISPs to mislead the public as to their compliance with net neutrality rules, something that nearly every ISP has got in trouble for doing at some point or another.

As mentioned, these laws are simple at this point. However, both Senators associated with the bills have mentioned that they will take their time to ensure that the laws are thorough and address any current issues in their original drafts. These California senators are not alone. A Democratic Senator out of New York and a Republican out of Washington have both introduced similar laws in their respective states. New York has also considered rules denying state contracts to all ISPs who are not compliant with net neutrality rules.

The Difficulties These Laws Will Face

If passed, these laws will all face legal challenge–end of story. If not from the Trump administration and the FCC itself, the ISPs will sue. It would be ironic for Republicans, ostensibly the party of state rights, to come down on these laws. However, it seems very likely that these laws will face conservative judicial challenges. Conservative political interests and the Trump Administration have cracked down repeatedly on state laws such as sanctuary laws and legalized marijuana. This will very likely be the case for state net neutrality laws.

Once challenged, all these laws have a serious obstacle to overcome–the FCC ruling repealing net neutrality also specifically pre-empts state or local measures that would act contrary to the FCC ruling. This means that the FCC says that its own rules win in any conflict between its rules and laws like the ones that have been proposed. The FCCs pre-emption ruling covers both “requirements that [the FCC] has repealed or decided to refrain from imposing.” This basically covers all net neutrality provisions.

This pre-emption is likely to be enforceable in the courts. Federal law generally pre-empts state law. Broadband services are difficult for states to regulate where they cross state lines. Even when state laws deal entirely with in-state behaviors, their implications will effect multiple states and enter the realm of the federal and the FCC.

With the way the FCC net neutrality pre-emption policy is worded, such a challenge to these laws would be an uphill battle for the states. However, such a battle would not be impossible. These states will have to argue that the FCC does not have the power to pre-empt them as they have. This position has some support. Just last year the 6th Circuit ruled that the FCC did not have the power to pre-empt Tennessee and North Carolina laws restricting the expansion of smaller ISPs–instead allowing larger ISPs such as Comcast to maintain their ironclad grip on territory. While this ruling is not necessarily for the best for consumers, it does establish the precedent that the FCC does not have blanket authority to pre-empt the states.

The court, looking the Telecommunications Act which governs the powers of the FCC, argued that the act had not delegated the power of pre-emption over the states to the FCC in clear enough terms to support such a power. This ruling supports the premise that the FCC cannot stop these state net neutrality laws.

Lawsuits Challenging the FCC Ruling

While lawsuits may be forthcoming once these state net neutrality laws are passed, there have already been lawsuits filed on behalf of a number of State Attorney Generals challenging the validity of the FCC’s recent net neutrality repeal. With substantial fraud in the comment process on the FCC net neutrality ruling–apparently both dead people and Obama himself opposed net neutrality all along–several states such as New York have brought lawsuits arguing that the FCC’s administrative process and decision making–both the speed with which a decision was reached and the reasoning behind the decision–in repealing net neutrality was so poor that it was “arbitrary and capricious.”

This arbitrary and capricious language is not out of nowhere, it is the standard by which FCC rulings would be judged by the courts. Unfortunately, this also means that these lawsuits are quite unlikely to succeed, arbitrary and capricious means the states would need to show that the FCC ruling essentially no rational explanation before the courts will decide to overturn the FCC. To say this is an incredibly low standard is an understatement.

The Loss of Net Neutrality Has Damaged Consumers

While broadband providers touted the business advantages of removing net neutrality restrictions–creating jobs, lowering prices, and promoting increased investment in infrastructure–none of this has occurred. Comcast fired 500 employees right before Christmas, both Comcast and Dish Network increased their prices in the last few weeks, and the announced infrastructure investment for the next year is essentially the same as last year. All that the FCC’s net neutrality repeal has done is take away your consumer protections. The states are taking steps to bring those protections back. Any successes will be a long fought battle–we’ll have to wait and see if they end in victory.

What’s Going on With The “Banned” Words at the CDC?

The last week has seen an uproar over news that, according to a Centers for Disease Control and Prevention (CDC) source, the Trump administration had banned the words vulnerable, entitlement, diversity, transgender, fetus, evidence-based, and science-based from being used. The outrage has subsided somewhat as more facts have come out more fully explaining the situation.

It is not completely clear what has happened here, but it appears the orders regarding the words were not a ban but a suggestion from higher ups at the CDC–not political appointments but career scientists at the CDC. The idea behind these suggestions was apparently that, with budget requests negotiations ongoing in D.C., it would be easier to get funding for projects that didn’t have words that would draw ire from politicians approving budget requests. If true, this is nearly the opposite situation to what was originally believed. This is an attempt to preserve funding for critical programs.

Even if the situation has changed from what was originally reported, it’s easy to see why the anger to the announcement came so thick and fast. The Trump administration has removed and censored information on climate CDCchange, requiring a change in the narrative and outright deleting tax-payer funded studies on the issue, many times throughout the year and as recently as November. The idea that the Trump administration may be using censorship to push a message is fresh in the minds of many. This raises the question, could the Trump administration legally ban an agency from using certain words?

Can the Government Do This?

The idea of the government censoring the CDC by banning words likely immediately suggests the protections of the First Amendment right to free speech.  Targeting speech in this way certainly rubs many the wrong way. However, while free speech protects against the government curtailing the speech of others, the reality of free speech when it comes to government agencies and government employees is more complicated than the usual free speech analysis.

First and foremost, the CDC is an executive agency of the U.S. government under the auspices of the Department of Health and Human Services. While the government is limited in how it limits the speech of others–generally required to stay neutral on how it governs speech of a certain viewpoint–the limits change substantially when the speech comes from the government itself or from a government employee.

The government speech doctrine says that the government itself has no requirement to stay neutral in its own speech. This means that a government agency can, and often does, take on the position of the executive–in this case Trump.

When it comes to limiting the speech of government employees, such as those who work at the CDC, the situation is a bit more complicated. Normally, a private employer has very little limitations on suppressing the speech of their employees as the First Amendment protects against government action curtailing speech. However, when the employer is the government, the situation changes.

As a government employee, under a test further developed in the 2006 Supreme Court case of Garcetti, an employee must both 1) be speaking as a citizen and 2) on a matter of public concern before they receive the protections of free speech. This means that when a statement is made as part of their official duties, there is no protection whatsoever.

From there, the question becomes whether they are speaking on a “matter of public concern.” As with most things in law, this is a complicated analysis and usually revolves around whether the matter has scientific, political, artistic, social or legal importance. It particularly protects speech around issues of public debate, political demonstration, and the like.

Even then, the analysis is not complete. Before taking action to protect a government employee’s speech, the courts look to whether the interests of the government outweigh the employees free speech interests, whether the protected speech was the true cause of any adverse action against the employee, and whether the government would have taken action against the employee regardless of the speech.

Some examples include a case where a government employee was fired in 1987 for saying, after the Reagan assassination, that she hoped they got him next time. The Supreme Court said that an opinion on the president was a matter of public concern that didn’t impact the constable office she worked at in any way. They ended up saying that her free speech rights had been violated when she was fired. However, in more recent years courts have been much more reluctant to protect the speech of government employees. For instance, in an amusing (if a bit too extreme to be fully useful) fact pattern, a police officer fired for making pornographic videos in his uniform failed a free speech claim after a court said the videos were not “a matter of public concern.”

This trend culminated with the Garcetti case discussed above where the courts said that an attorney fired for questioning whether a search warrant was valid had no free speech rights because what he said was part of his duties. Since this case, it has quite rare for a plaintiff to succeed in a free speech employment argument. The exception to this seems to be in the academic context, Garcetti does not generally apply to academic speech. What’s more, in 2014 the Supreme Court supported a college administrator in a free speech claim after he was fired for truthful testimony in court over financial wrongdoing at the school that employed him.

The takeaway here is that it is very difficult in today’s day and age to win a free speech retaliation case as a government employee, the courts tend to defer to the government’s judgment and reasoning for firing such an employee. So could the Trump administration ban certain words from use at the CDC? Absolutely when it comes to employee’s official duties. As firing them from using the speech on their own time, the situation is more complicated. While any case would depend on its individual facts, an employee challenging such a firing would face an uphill battle.

Banning Words for the CDC: a Ridiculous Situation

There is still some debate as to whether this is a political move within the agency or a strategy to help secure funding. Regardless of the reason behind the CDC not using these words, and the legal situation regarding the government regulating the speech of its agencies and employees, the fact that such a situation exists in the first place is patently ridiculous. To think that it is necessary to tailor budget requests in such a drastic way says a great deal about the Trump administration and their approach to both scientific research and policy. From destroying important research on topics they oppose to requiring code speak to get funding for crucial research, the situation is unacceptable.  Forcing self-censorship to pursue such important scientific pursuits is a regrettable reality.

Senate Introduces Bills to Protect Your Personal Data

This year has seen data breach after data breach on unprecedented levels–Yahoo, Uber, Equifax, and more. We’ve seen multiple breaches in one year which have each broken previous records set for sheer size of a breach. This has to serious concerns about privacy as people scramble to secure their online information and protect against credit card fraud through credit freezes and the like. Congress has responded to this heightened concern with two recent bills on the topic known as the Consumer Privacy Protection Act of 2017 and the Data Security and Breach Notification Act.

These two acts, taken together, represent a substantial step forward in terms of data protection requirements on corporations. The Consumer Privacy Protection Act focuses on improving the data security required by larger companies, almost certainly a direct reaction to the Equifax breach and, to a smaller degree, the Uber breach. This is especially true given how lackluster Equifax’s security was, drawing substantial criticism in the wake of their breach. Uber outright had administrators publish code including private usernames and passwords to the software repository website Github.

The Data Security and Breach Notification Act deals more with requiring faster and more thorough reporting of a substantial data breaches. This is likely a response to the Yahoo and, once again, Uber breach. Yahoo kept a breach of then-record-breaking size–around 500M people affected–from the public for years. Uber didn’t report it’s breach for at least a year after it became aware of the security issue. We are seeing continuously larger and more dangerous data breaches, and Congress finally is acting on this. Let’s a look at these two acts and the steps they take to protect your data and your privacy.

personal dataThe Consumer Privacy Protection Act of 2017

To put it simply if a company holds data on 10,000 or more U.S. citizens they are required under this act to put into place a comprehensive privacy and data security program that is scaled appropriately to the size of the company, the nature of their business (for example a company holding more crucial information such as bank records or social security numbers would require more security than one that did not), the amount of information they hold, and what they do with that information.

The legislation specifically targets personally identifiable information for protection. This is a common legal phrase, although its definition varies depending on where you are. However, it can thought of as information that could be used to link you to data. This is an important distinction as it does not require the same protections for things like metadata.

Under the act, there are a number of categories of data that are specifically highlighted for protection requirements: driver’s license numbers, social security numbers, passport numbers, financial account numbers, debit card or credit card numbers when in combination with a PIN or security code, online usernames and passwords, fingerprints, retina or iris scans, physical and mental health data, private digital photographs and videos, and geolocation data. Under the act a security a breach occurs when there is a reasonable basis to believe compromised security or privacy of data has resulted in unauthorized access or acquisition of sensitive personally identifiable information (often abbreviated as PII) such as the things listed above.

The act will require these security policies to be implemented as quickly as possible and require notification of the discovery without unreasonable delay. Where a breach occurs, the law requires the breached company to give five years of free identity theft prevention services to those affected to anybody who asks for it. It also forbids automatic enrollment in such services without specific consent, so it will be more important for you to make the effort to ensure you get such services if the law passes. The bill does not allow for you to sue under it, but includes fines from the FTC for reported violations. The penalties start at $16,500 and scale up based on the size of a breach. This is fairly small based on the sheer scope of some of these breaches, but remember they are a minimum.

The Data Security and Breach Notification Act

We’ve seen that the Consumer Privacy Protection Act has some elements requiring swift reporting. However, the recent Data Security and Breach Notification Act takes this even further. It has some similar elements, requiring heightened security measures. However, if passed, it would also require nationwide notice if a security breach occurs.

The bill will require the Federal Trade Commission (FTC)  to take steps to provide in depth requirements for security policies within a year of the act passing. These requirements would be fairly in depth, covering how data can be collected, used, sold, disseminated and maintained, the appointment of a specific data security and management officer, a process for finding, monitoring, and dealing with security weaknesses, a process for quickly addressing any weaknesses, a process for disposing of data in a permanent, irretrievable form, and destruction of paper forms.

The notification requirements of the act would require quick notification–within 30 days of learning of the beach–of all those who reasonably could be believed to have been affected by the breach nationwide. It also generally requires notification to the FTC. These are pretty standard in most data breach reporting statutes around the nation, however there are a few additional elements that expand reporting requirements beyond the norm. First, where there is a breach of security of a system maintained by a third party contractor, the third party security company must notify the company contracting it who must then follow the usual reporting requirements. The second big change is that any breach affecting over 5,000 people will have to coordinate with the major credit reporting agencies in providing through notifications. Concealing a breach can lead to up to five years in prison.

There are a few exceptions, if the Secret Service of the FBI thinks notification would impede a criminal investigation or impact national security they may act to delay the normal notifications via a written communication to the company that would normally need to disclose the breach. This exception doesn’t seem to have a limitation on duration, the FBI or Secret service just have to say how long they want the delay to be.

There is also no reporting requirement under this act where the breached company “reasonably concludes” that there is no reasonable risk of identity theft, fraud, or other unlawful conduct based on the breach. The act also creates a presumption that such a risk doesn’t exist if the security measures render the breached data unusable, unreadable, or indecipherable and this fact is generally accepted by data security experts. This is a rebuttable presumption, if there are facts to the contrary reporting may still be required and penalties levied against those who fail to do so.

Protecting Your Data is Incredibly Important

You should take steps on your own to make sure your data is secure. However, the information age requires sharing of an unprecedented amount of private information online. The last few years have seen data breach after data breach breaking records for the largest of all time. Several of the breaches in just the last two years have affected more people than the entire population of the U.S. These laws are necessary and hopefully they’ll be passed soon. However, even these laws may not go far enough.

They expand federal data breach protections to the level of many state statutes. However, their exceptions may leave many companies credibly arguing that they delayed reporting breaches based on a belief nobody was really in danger. At the very least, requiring thorough security is a good first step. Hopefully, it is a first step of many.

FCC is Taking Net Neutrality Protections from the People

The FCC has announced a final vote on removing net neutrality rules in the next few weeks. We’ve talked about net neutrality before and, unfortunately, predicted a slightly rosier future than is before us. The rollback of net neutrality provisions is looking increasingly sure to occur on a larger scale than this blog or most anybody originally predicted.

Not only has the FCC chosen the longer route of publishing a proposed rule in order to overturn the Obama-era net neutrality provisions, it’s new rule will strip away essentially every consumer protection when it comes to net neutrality. As it stands, the protections will be repealed without replacement in any form.

Net neutrality, for those unfamiliar with the term, is the concept that internet providers should treat all data on the internet equally—regardless of source.  All information passing through broadband networks and backbone networks should be given equal priority to the extent possible without effecting function.  For instance, text on a website can have data packets arrive in any order while video and audio must arrive in a specific order and in a timely fashion to function—net neutrality doesn’t require companies to ignore the concerns of functionality.

What net neutrality does is prevent blocking of content, throttling content (intentionally slowing down some content or speeds up others), and paid prioritization where some services are stuck in a “slow lane” because they do not pay a special fee. Essentially, it keeps ISPs in the business of charging users for internet connection as opposed to charging edge providers for users while the people buying internet service from them suffer.

net neutralityThis is important for a number of reasons. It prevents ISPs from censoring content by blocking or slowing down access to a crawl. It prevents them from selling the internet in bundles, similar to how you buy packages of television channels. It prevent ISPs from limiting access to the internet, providing preferential treatment to internet services they provide or services that are willing to be strong-armed through bandwidth throttling into giving them a cut of their profits (as Netflix was forced to do not so long ago).  Finally, it stops these companies from allowing sites to buy preferential treatment, something that could seriously harm smaller businesses and startups in this internet age.

The End of the Open Internet Order

Under the Obama Administration we saw the introduction of new net neutrality consumer protections in the form of the Open Internet Order, This order changed the classification of ISPs to that of a Title II public utility similar to telephone services–often known as common carrier status.  This change allowed greater regulation of ISPs. It also sets forth five rules that ISPs must abide by:

  1. ISPs “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
  2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
  3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
  4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
  5. ISPs must offer transparent specifics on how they run their broadband networks.

The order also provides for an exception for reasonable management of a broadband network. ISPs are allowed to prioritize data so as to keep things running smoothly, but cannot use this for their own commercial advantage.

Getting to this point, however, was quite an uphill battle, both in the courts and within the FCC itself. The FCC initially proposed much weaker regulations.  However, the combination of a call from then-President Obama for stronger rules, 4 million comments filed with the FCC, and protesters who went so far as to sit in the FCC Chairman’s driveway and demand a stronger policy, all came together to convince the FCC to pass the final version of the Open Internet Order.

FCC Chairman Ajit Pai, a former Verizon attorney, has made his anti-net neutrality stance well known. However, his plans take the axe to net neutrality provisions such as the Open Internet Order even more than initially anticipated. Pai followed through with the long process of proposing a new rule, opening it for comment (a process that was fraught with bots repeatedly entering anti-net neutrality comments), and finally his new rule is looking set to be confirmed in an FCC vote on December 14th of this year. The rule was always anticipated to strip away the Title II classification that allowed through regulation of ISPs. However, it has turned out to be an early Christmas gift for telecommunications interests.

What Chairman Pai’s New Rule Will Do

In discussing how the rule could be changed, Comcast expressed hope that the Title II classification could be removed so long as  “clearly defined net neutrality principles—no blocking, no throttling, no anti-competitive paid prioritization, and full transparency ” remained in place. The final plan being voted on in a few weeks will not only remove Title II classification, it also includes no replacement guidance whatsoever when it comes prioritizing, blocking or throttling internet traffic. This goes beyond even what ISPs had hoped for–a full rollback of all net neutrality provisions. The only FCC oversight which will remain is a requirement that ISPs disclose in their terms of service or user agreements that they will block, prioritize, or throttle content.

This requirement, due to the change in classification, will primarily be overseen by the FTC. The FTC is barred from policing Title II common carriers, but the change places ISPs back under their domain. However, the FTC can’t create the sort of net neutrality rules the FCC could. The most they can do is prevent deceptive and unfair practices. This basically means that if an ISPs terms of service say they will follow net neutrality practices, the FTC can come down on them if they break that promise.

This being said, as the rules stand there is nothing requiring these companies to include these promises in their terms of service in the first place. Even if they do, there will no real repercussions for removing them down the line.

Internet Providers Already May Be Gearing Up To Take Advantage

The response from ISPs when it comes to these potential dangers has long been, “well we promise we won’t.” Chairman Pai himself has relied on similar arguments in promoting his plan. This seems unlikely, they’ve spent millions lobbying for the power to do this, if they’re happy to promise to follow these rules why get rid of the rules in the first place? What’s more, their own history shows that they are more than happy to violate net neutrality principles.

Beyond the squeeze put on Netflix discussed above, ultimately requiring Netflix to pay up to end slow-down of its traffic, there have been a number of incidents where broadband providers have got overly ambitions and violated net neutrality rules.  In 2005, Comcast was caught blocking and slowing peer to peer services.  In 2011, Metro PCS announced plans to block all streaming services but YouTube on its 4G network. In 2012, the FCC caught Verizon blocking people from using tethering applications on their phones in violation of a net neutrality pledge they had made to the FCC in 2008. In 2013, when Verizon was asked in court whether it would prioritize content if it could, they repeatedly responded that they would be “exploring those types of arrangements.” These are just a few examples of acts violating net neutrality rules.

Even just recently, in the wake of the recent announcement out of the FCC, Comcast has changed a pledge posted online. Originally promising to never block, throttle or prioritize content, the Comcast pledge has recently dropped the promises regarding prioritization. They now promise not to “discriminate against lawful content” or use “anti-competitive paid prioritization. This conveniently drops promises not to offer internet fast lanes to companies willing to pay that premium. This is especially true because, after the net neutrality rollback, the only person to say whether or not prioritization is anti-competitive (except in particularly extreme cases) will be Comcast itself.

Net Neutrality Is In The Hands Of Congress

At this point, the December 14th FCC vote is looking more and more like a formality. If nothing changes, it is a near certainty that these rollbacks will happen. The only real chance of changing this–and it is an outside chance at best–would be for Congress to intervene. This would require them to act fast and, if you want to avoid a future without net neutrality, now is the time to contact your representatives and make your voice heard.

This is absolutely the last chance for these rules and any replacement rules from a future administration will certainly have to overcome the same years of lawsuits that mired down the Open Internet Order taking effect. As it is, before the end of the month we will know one way or another if net neutrality provisions will be completely repealed with no replacement whatsoever.

If this happens, we’ll see whether the ISPs will stay true to their promises. It is possible, but it seems unlikely the face of the internet will remain the same based on the history here. This does not necessarily even mean you will see instantaneous changes from your ISPs. Likely, there will be an incremental ratcheting down of the norm when it comes to how you expect to receive your internet. From here, it is in Congress’ hands what will happen to the internet.