Can the federal government legally control access to the Internet? That’s the question before a top federal appeals court this week.
On Sept. 9, the U.S. Court of Appeals for the District of Columbia will hear arguments inVerizon v. FCC. At issue is the legality of the Federal Communication Commission’s net-neutrality rules, which regulates Internet traffic and thus asserts government authority to control individual Americans’ access to the Internet.
Net neutrality has been a priority for the Obama administration, and these regulations were enacted only when President Obama’s appointees became a majority of the FCC. The regulations themselves sound innocuous to casual observers, since they speak about Internet Service Providers (ISPs) being required to treat all content equally and not differentiate between certain types of content or certain sources.
But in order for the FCC to promulgate such rules, the FCC must have legal authority to regulate the Internet. So if these regulations stand, it represents a vast expansion of federal authority over all forms of communication over the Internet (both webpages and email)—authority the government could then exercise in any manner it chooses at any time in the future.
In 2010, the D.C. Circuit held in Comcast v. FCC that the Communications Act of 1934 did not give the FCC such sweeping authority, concluding that the relevant federal law applied only to radio and TV broadcasts. Thus, the appeals court invalidated the FCC’s order against Comcast that had sparked that lawsuit. Having decided that federal statute did not authorize the agency assert such authority, the court did not need to reach any broader question as to whether such authority would also violate the First Amendment to the Constitution.