EFF Director Shahid Buttar on the Continued Fight for Net Neutrality

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The Director of Grassroots Advocacy for the Electronic Frontier Foundation, Shahid Buttar, spoke to us about the current DOJ lawsuit against California’s newly-won net neutrality law and what digital rights activists should do if it is repealed.

This interview was edited for brevity and clarity.

MFU: You’re a Director at the Electronic Frontier Foundation, an international digital rights nonprofit. What are your thoughts on the DOJ’s lawsuit against California’s new Net Neutrality law, and what should digital rights activists be paying attention to this year?

SB: Great question, thank you for raising it. I should say at the outset that in the context of my campaign I represent myself and the supporters of our campaign, so while I do work at EFF I’ll speak in the moment in my individual capacity rather than as a representative of the organization, which is a 501c3 nonprofit and does not participate in any way in campaigns for public office.

All that notwithstanding, it was SB822 that created one of the nation’s strongest state-based net neutrality laws, and the federal lawsuit alleges essentially that the federal government is the only government with the right to legislate in this arena. It’s a preemption challenge that aims to deny the state of california, which is our nation’s most prosperous and populous state as well as effectively the birthplace of the internet, it aims to deny the state of california any right to defend the rights of its users. I want to unpack the relevance of net neutrality and then I want to unpack sort of the prognosis for the issue depending on the outcomes of this lawsuit. Net neutrality is the principle that anybody who uses the internet should be able to access the global commons on the same terms as anyone else. It’s crucial because without net neutrality there’s no assurance that a marginalized voice will be able to participate in discourse on the same terms as everyone else. The movement for black lives relied on net neutrality because it was viral videos promoted on social media that allowed the world to see what people of color have been experiencing for centuries in this country. Without net neutrality those kinds of posts can very easily be blocked or throttled. It’s anyone’s guess quite frankly how ISPs might interfere with the rights of their users.

Ultimately the question about net neutrality is do you as a user own your internet experience, or does your ISP have the authority to interpose itself between a user and the internet to decide for instance which ads you see, or which content you can access. Anyone who is attached to or uses the internet and recognizes its interactivity as a basis for its value should be very concerned about the erosion of net neutrality. California’s law is absolutely crucial to restoring the path to net neutrality precisely because president Trump weaponized the Federal Communications Commission. He appointed a chair of the commission who has been an opponent of net neutrality throughout his time not only in public office but back when he was a lawyer for Verizon. He was of course opposed to net neutrality because companies like Verizon and AT&T and Comcast can monetize their users better in an era where net neutrality is not required. So this is basically a classic case of corporate interests against users.

Interestingly enough, in this case net neutrality actually pits the interests of multiple corporations against other corporations, and I really would like to see the behemoths in this arena, not the ISPs, but the Googles, Amazons, Facebooks, Microsofts, and Apples of the world, come out robustly in favor of user rights, to insist on the net neutrality that president Trump’s FCC has denied. As long as the federal government is reticent or opposed or hostile to net neutrality it will require actions by the states, of the sort we’ve seen here in California and many other states, to ensure the users have equal rights to use the global internet. The fate of that case, the federal preemption case challenging the California law, will determine what is the path to recover net neutrality.

If the case is unsuccessful and California’s law is allowed to proceed and take effect and guard the rights of internet users in California, it will create a race to the top where other states also seek to enforce similar restrictions on ISPs to guard the rights of their users—precisely because states that do that will enjoy opportunities to attract investment from companies and users who want to use the internet within those states that other states will not.

If the federal case is successful and California is denied the opportunity to mandate net neutrality, then the game goes back to congress. And one reason why we’re so eager to see the states allowed to innovate in policy, as they were created to do, just a brief riff here—Justice Louis Brandeis refers to the states as laboratories for policy, and if we deny California the right to move forward, we are hamstringing the constitutional vision in yet another way. Anyway, if the case fails and California is allowed to proceed, that’s the optimal outcome. I think people should be very concerned about that case, and particularly the opportunity to advance net neutrality requirements in other states through their state processes. Net neutrality remains an object of transpartisan consensus across the grassroots—something like 80% of Americans, including a majority of Republicans, support net neutrality, which is to say we should continue pressing in congress as well to ensure that regardless of the fate of the federal case we have an opportunity to recover net neutrality, if not through the states, then through congress.

And then just kind of bringing this full circle, during his confirmation hearings, now Justice Brett Kavanaugh said that he thought net neutrality was unconstitutional because it was a first amendment issue, a first amendment restriction on internet service providers, which is absolutely insane because it presumes that the rights of ISPs to supposedly speak or just provide the service that they’re commercially providing is paramount to the speech and autonomy interests of the users who are actually the only people in this arena with actual first amendment rights. The ISPs shouldn’t have first amendment rights because they’re not speaking, they’re just providing a service. What denying access to net neutrality, and let’s be clear there, if Justice Kavanaugh’s view prevails, that net neutrality is unconstitutional, it doesn’t matter what we’re able to get either through the states or through congress because a biased Supreme Court is poised in the background to strike down any progressive legislation. So to some extent this complicates the picture right because it’s not just between the federal justice department and the California justice department—it’s also between users and the Supreme Court, and there’s this weird tension among the companies.

You asked for suggestions about things that people can keep their eye on this year. One thing people can keep their eye on are the statements of the Amazons, Microsofts, Facebooks, Googles of the world, and making sure that they are coming out for user rights, in ways that often those companies have not. And so user pressure as consumers on the big tech platforms, to guard the ecosystem let’s say, is one opportunity. There are a whole other range of issues with respect to digital rights that are worth noting. San Francisco has a law which Oakland is starting to emulate, which basically prevents landlords from denying renters opportunities to choose their internet service providers. That’s like another dimension of the net neutrality struggle. So you can think about that as tenant protections that relate to digital rights. Another arena, I’m on the board of a group called the Center for Media Justice, and it particularly focuses on the intersection of racial justice and digital rights and at that intersection, in addition to net neutrality, another issue that emerges very consistently because mainstream democrats have proven so unfortunately useless in resisting it is mass surveillance and targeted surveillance. People often think about these things as different. I want to just describe why they’re offensive and what we can do about it.

Mass surveillance is a cornerstone of authoritarianism. It is the ability of the state to peer into the minds of citizens, or subjects let’s say, more accurately in this context, and particularly the opportunity for the state to squelch dissent before it ever emerges in public. It is a profound threat, not just to privacy. A lot of people think that surveillance offending crime is just about privacy. It’s not by a long shot the most important value that surveillance offends. What surveillance offends is speech, agency, autonomy of individuals, and because it threatens each of those things, what it ultimately threatens is democracy for all of us. We cannot live in a meaningful democracy in a country where we are watched and monitored all the time. That’s not a radical or new proposition. That has been a baseline understanding of political scientists for fifty years and yet we have hurdled into an authoritarian era precisely because corporate democrats, despite decrying the emergence of mass surveillance under the Bush administration, were unwilling to roll it back under the Obama administration.

I fear this is an area in particular where corporate Democrats have ducked into authoritarian punches. This is the discrete reason why I ran in 2018, watching Pelosi undermine a proposed surveillance reform that would have curtailed the internet surveillance that Edward Snowden revealed in 2013, which incidentally congress has not fixed in the last five years—that problem has grown only worse, and that’s mass surveillance. There’s a whole other dimension to which communities of color, and dissents, and journalists, are uniquely subjected, and that’s targeted surveillance, which is no less offensive, precisely because when targeted it offends not only the first amendment rights we were talking about, speech, agency, autonomy, and not only the collective rights we talked about like democracy, but it offends other rights like the civil rights of particular communities to participate equally in public life.

Surveillance in the United States has always been politicized. It is a thing that people forget. For forty years the FBI waged a concerted assault on the rights of Americans. These were civil rights organizations, the movement for equal rights for women, environmental organizations, peace groups, native american organizations, Puerto Rican independence activists, all of these groups were infiltrated, and to use the FBI’s word, they were ‘neutralized.’ In a country that prides ourselves supposedly on being free, there’s a profound tension between the application of surveillance repeatedly in our nation’s history and our ideals of which we are justifiably proud, even as they remain threatened at the moment.

As we look at the digital rights landscape in 2019 net neutrality obviously is an important issue. Curtailing the surveillance arena and subjecting surveillance to long overdue civilian oversight is crucial. One of the most pressing issues in the arena of digital rights—or civil rights or civil liberties—is the need for meaningful, assertive, searching, congressional investigations to exercise oversight of the executive branch. The classification system—this is the process through which executive branch agencies can designate documents and records as secrete—is entirely too permissive. It’s been described by people who have administered the system as broken and dysfunctional. There is no reason to presume that any document that is classified as secret or top secret is legitimately classified. Most documents that are classified as secret are classified as secret not to protect national security but rather to protect the job security of some federal official or set of officials at an agency. Congress has to reform the broken classification system. This is an issue that I don’t hear many progressives talking about. It’s one reason why I feel very strongly that we need to have a constitutionalist included in the ranks of progressives, because this is an area where the incoming freshmen progressives in congress, for better or worse, have not been outspoken, and I fear in some respects some might not get it. It’s absolutely important to turn scrutiny onto the intelligence agencies by forcing them to justify classification decisions. That’s an area where congress has been entirely asleep at the switch. If there was any one way to rule them all I would point to that one. It’s the most highly leverageable reform—classification reform to shake secrets loose into the public domain and empower journalists, and empower readers and citizens, so that we can make better decisions.