November 14, 2016

Don't Expect Trump to Leave Internet Rules, Regulations Intact

By Scott Cleland

Federal rules and regulations governing the internet during the Obama administration are in for a major upheaval.

The Federal Communications Commission—and Silicon Valley—commanded unprecedented attention from the White House over the past eight years. FCC policies flowed from the executive branch’s strategy to bypass Congress and govern the internet via executive order, backed by a 3-to-2 majority rule at the FCC.

Related: Obama champions privacy, consumer rights

One of the single most unifying priorities in a Trump administration and Republican Congress will be the rolling back of the Obama administration’s many executive and regulatory decisions that steamrolled strong congressional opposition over the past few years. Here’s what to expect, with regard to key internet rules:

Smartphone snooping: Expect the FBI to gain federal support to wiretap smartphones to thwart crime and combat terrorism. This will come despite vehement tech opposition from Apple, Google, Facebook, et al. The tech giants are concerned about a consumer backlash over any perceived failure to protect individual privacy.

The history: Congress passed the Communications Assistance to Law Enforcement Act of 1994 to define the federal government’s wire-tapping authority. The FCC under President George W. Bush ruled that broadband internet access and interconnected VoIP were subject to CALEA, a ruling that was upheld by the Washington, D.C, Circuit Court of Appeals in June 2006.

Related: Apple’s dilemma – profits vs. patriotism

Presidential-elect Trump already has publicly chastised Apple for refusing to cooperate with legitimate law enforcement investigations. Expect the Trump FCC to set rules to ensure smartphones are subject to the CALEA.

 Bye-bye to spectrum sharing: The Reagan administration first came up with the idea to auction off specific bands of the electromagnetic spectrum underused by the federal government. In 2013 President Obama ordered the federal government to share a huge chunk of the wireless spectrum reserved for government use in order to expand wireless broadband internet access for individuals across the country.

Obama’s spectrum-sharing policy runs counter to the longstanding, successful policy of increasingly commercializing underused government spectrum via public auctions. Taking a national asset and unilaterally mandating government sharing of spectrum to supersede a property rights-based policy supporting spectrum auctions appears to run counter to Republican economic principles.

Increasingly commercializing underused government spectrum, via public auctions, could generate well over $100 billion of revenue over 10 years. This could help fund various Republican fiscal priorities without adding to the budget deficit.

Net neutrality reversal. The Obama FCC has ruled that internet service providers may not block or throttle lawful internet traffic or speed up web services in exchange for payments from online service providers. Expect the Trump FCC to return to some form of the Bush FCC’s definition ensuring users’ freedom to access the content, websites and devices of their choice, without going as far as Obama-FCC’s requirement for ISPs to treat all internet traffic equally.

Net neutrality is not found in law, and remains a solution in search of a problem after 12 years of intense scrutiny. Tellingly, the only time net neutrality supporters tried to make net neutrality an election issue was in 2010, when 95 Senate and House candidates signed a PCCC Net Neutrality Pledge (all Democrats) and all those 95 candidates lost their respective congressional races.

Scott Cleland, president of Precursor, is a guest essayist for ThirdCertainty.com, where this article originally appeared. Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H.W. Bush administration.

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