A Wolf in Sheep’s Clothing

I’ve been quietly steaming, and publicly ranting about the FCC’s proposed net neutrality rules since the issue first appeared.

At first, “Protecting the Open Internet” sounds fantastic. But I always read the legislation and/or the legislation’s source material before I decide anything, so let’s dive into the FCC’s 4-page summary of Open Internet rules, which should give us a good indication of future proposals.

Let’s focus on the first two “Bright Line Rules” outlined within, as those are what scare me most.

No Blocking

Broadband providers may not block access to legal content, applications, services, or non-harmful devices.

Sounds mostly harmless. Except, who decides what “legal content” is? Is that up to the government? Service providers? Who?

I’m okay with things being legal and illegal. I’m not okay with those definitions being left loose, or left out entirely. That’s a tremendously slippery slope that will certainly come back to haunt us in the future. But a hand-wavy definition of “legal content” isn’t as bad as what’s next.

No Throttling

Broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.

Before dissecting this bit of the FCC’s principles, take a minute to think through everything that’s come out about the NSA and related organizations since Edward Snowden opened the flood gates nearly two years ago—from mass data collection, to the recent firmware insecurity designed to undermine drive encryption.

Now consider FBI Director James Comey’s recent comments on encryption and the privacy of your data on the Internet:

Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem. We call it “Going Dark,” and what it means is this: Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.

And if the challenges of real-time interception threaten to leave us in the dark, encryption threatens to lead all of us to a very dark place.

(That entire speech is so important to read. It took restraint to not quote the entire thing here. Please read it in full.)

It’s pretty clear that government security agencies despise device encryption and encrypted network traffic—they’ll do anything they can to get around it, and would really rather it not exist at all.

Back to the FCC’s principles: as I asked before, who’s deciding what constitutes “lawful Internet traffic”—the government or the service providers? If the government is in charge of what is and isn’t “lawful,” and they deem encrypted traffic illegal for national security reasons outlined by the FBI, NSA, and others, you can say goodbye to end-to-end encrypted traffic, Fourth Amendment be damned.

This is a totally foreseeable situation—let us not forget the also-harmlessly-named Patriot Act.

One last bit, from the conclusion of Director Comey’s speech:

We also need a regulatory or legislative fix to create a level playing field, so that all communication service providers are held to the same standard and so that those of us in law enforcement, national security, and public safety can continue to do the job you have entrusted us to do, in the way you would want us to.

James Comey, FBI Director