The cliché of the US Republican being the party of states’ rights has been tired for some time: Republicans have worked to hamper the ability of states trying to stem the flow of guns crossing their borders; they have floated the idea of preventing states from passing stricter-than-federal rules against polluters; and more recently, they have threatened to suspend funds to cities combative of border actions that see federal agents snatching up migrant children outside schools.
Watching a Republican-majority US Federal Communications Commission (FCC) help internet services providers block state laws meant to ensure online privacy and quality of service is, therefore, neither shocking nor even unexpected. But some states are beginning to fighting back, and – as the Trump administration probably expected – New York is among those leading the way.
Aside from the bevy of lawsuits New York’s attorney general, Eric Schneiderman, has lofted at the White House, one state assemblymember is now proposing a law that would hinder ISPs from obtaining state contracts when one violates the principles of net neutrality by, say, blocking or throttling content, or creating special “fast lanes” for online services that pay the ISPs more money.
Because broadband service crosses state lines, it can be difficult for states to enact laws to regulate it, even when they have the argument of “consumer protection” on their side. What’s more, the FCC order that repealed the net neutrality protections earlier this month contains an entire section dedicated to ensuring state and local governments are unable to challenge the administration’s rules.
As Gizmodo reported when the draft proposal was first released:
The order further seeks to “preempt” state and local governments from enacting regulations that would supercede the federal government, preventing states from crafting their own rules to protect consumers. “Allowing state and local governments to adopt their own separate requirements, which could impose far greater burdens than the federal regulatory regime, could significantly disrupt the balance we strike here,” the order states.
In response, New York Assemblymember Patricia Fahy has suggested using the “power of the purse” to ensure that ISPs don’t get belligerent with their newfound authority. Broadband providers that decide to influence which online services consumers patronize by diminishing the speeds of competitors might find themselves out of luck next time the state has a big fat contract to award.
“If you are going to be a contractor and want to work with New York, then you must meet the principles,” Fahy told Fast Company earlier this month, adding: “There’s a decent amount of precedent for saying, if you want a state contract, you have to meet such and such requirements.”
Obviously, ISPs will not be fans of this and will likely spend a lot of money to prevent it from coming to fruition. According to TechDirt, Washington and California legislators have similar regulatory end-runs in mind.
When the FCC rolled back broadband privacy protections earlier this year, several states worked to pass their own laws. California, for instance, proposed AB 375 to protect their citizens’ right to privacy. Industry lobbyists began to immediately swarm to subvert the effort. And now, a wiser FCC is just including provisions in its rules to nip those pesky state-level battles off at the bud.
As with the fate of net neutrality nationwide in the US, we’re now in a holding pattern, waiting to see if any of these legal efforts to restrict the growing power of ISPs will grow legs. At the very least, in 2018 we’ll see a sharp rise in the number of readers biting their nails over what would otherwise be considered tedious courtroom minutiae.