DOJ Suit Against California Deepens Net Neutrality Quagmire

NEWS ANALYSIS: In one corner, the state of California is enacting a law that a majority of its citizens clearly want, while in the other corner, the U.S. Constitution begs to differ.

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The U.S. Department of Justice is about to take on the state of California in a battle that is sure to muddy the already murky waters surrounding net neutrality. At stake is both the definition of that neutrality and the limits of a state’s ability to regulate the internet. The basis of the questions involved is whether the internet is an and instrument of interstate commerce.

While there are many issues about which the Constitution of the United States is open to interpretation, the power of the federal government to regulate interstate commerce is not one of those. Section 8 of Article 1 of the Constitution specifically enumerates interstate commerce, saying Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

California, being one of the several states, is subject to that article of the Constitution. While there have been tests of that power over the years, no court has ever found that states can ignore the commerce clause. In fact, the strength of the commerce clause played a major role in enforcing rules against discrimination based on race when the courts ruled that hotels and restaurants were involved in interstate commerce, and thus couldn’t discriminate on the basis of race.

National vs. State Commerce Issues Go Way Back in History

The commerce clause has its beginnings in the early history of the United States, before the adoption of the Constitution, when the states attempted to regulate commerce on their own. The result was a morass of wildly different laws impacting commerce, including states charging tariffs on products from neighboring states. The result was that the U.S. government was unable to control commerce necessary to the operation of the government, and it was unable to negotiate trade agreements.

That chaos persisted from the time the U.S. declared its independence until the Constitution was ratified, at which time the U.S. government took to regulating interstate commerce.

What all this means is that the states don’t have the authority to regulate interstate commerce, because that power is specifically given to the federal government. So the next question is whether the internet is part of interstate commerce.

The interstate commerce question can be answered instantly by anyone who buys a product from Amazon, or for that matter, anyone who buys something from Apple and who doesn’t live in California. The answer is clear on its face: The internet is an instrument of interstate commerce.

How Will California Justify Its Position?

So how will California justify what appears to be a clear violation of the commerce clause of the Constitution? It’s hard to know what the arguments will be once the case goes to federal court. But the reasons given so far seem to be that California’s new net neutrality law is good for the citizens of that state, and that the FCC took away some level of freedom when it reclassified the internet.

A number of advocacy organizations have come out to support the California law, but while they are more than willing to discuss how it’s important to ensure net neutrality, they haven’t addressed the constitutional question, which is ultimately the controlling factor.

While California’s actions may be good for Californians--at this point it’s only a supposition--the arguments in favor have an eerie ring from the 1950s, when early leaders of the civil rights movement were fighting a series of what are now called “Jim Crow” laws where backers used similar arguments. The fact is that attempting to control interstate commerce with state laws has been tried, and it failed.

What California is risking is subjecting the internet to a series of conflicting laws in which each state tries to protect its citizens in a different way. Already six other states have their own net neutrality laws, and each of those laws is different in some way from each other and from California.

Lines Already Being Drawn on Party Lines

Already it seems that dividing lines are being drawn along party lines. An example can be found in statements by two of the FCC Commissioners. Jessica Rosenworcel, a Democratic appointee, says she welcomes California’s move.

“The California law is a welcome development—it’s good for consumers, good for businesses, and good for anyone who connects and creates online,” Rosenworcel said.

Meanwhile, Republican appointee Mike O’Rielly was one commissioner who brought up the Constitution. “If allowed to stand, the law would be incredibly detrimental to American consumers and the continued growth of the Internet. Thankfully, this is precisely why our nation’s founding fathers crafted a Commerce Clause to the U.S. Constitution,” O’Rielly said.

Ultimately, the test of whether a law can be enforced in the United States rests not on whether it’s a good idea, but whether the Constitution allows it to be enforced. I can’t see how California’s law passes that test.

New Regulations Need to Be Enacted

But the argument shouldn’t end there. It’s clear that the FCC needs to create regulations that encourage the growth of the internet but which also don’t allow the big internet companies to control traffic in a way that is contrary to the best interests of consumers. This is not an easy needle to thread. Previous efforts by the FCC to enforce net neutrality have been overturned by the courts as being contrary to existing statutes.

The only real solution is clear, comprehensive net neutrality legislation in Congress that will ensure equal access and equal treatment. Such laws have been proposed recently but have been sidetracked by partisan interests on both sides of the aisle.

It’s clear that the only real answer to net neutrality is to act without partisan interests and with the interests of the consumers at the core. Just as the Constitution knows no political party, such legislation also should not. Now the challenge is to get Congress and the White House to act in the interests of the people, rather than their own partisan interests.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...