Ernesto Falcon, Electronic Frontier Foundation
Ernesto Falcon, by Gretchen Röehrs
Donald Trump loves Twitter, but he doesn’t seem like the most technologically sophisticated person in the room. During one of the presidential debates, he rambled strangely about “the cyber,” and praised his ten-year-old son as a computer genius. But Trump, whatever his degree of digital literacy, has embraced an intensely deregulatory agenda. As a result, the Republican Party and the telecom industry see his Administration as an opportunity to roll back the significant gains on internet governance made by the Federal Communications Commission (FCC) under Obama.
Ernesto Falcon is Legislative Counsel at the Electronic Frontier Foundation (EFF), and a former Congressional staffer. He talked to us about what the coming assault on internet freedom will look like, and how the telecom industry is using Trump to further consolidate its power. He also shared a few thoughts on the role that both rank-and-file tech workers and ordinary citizens can play in fighting the corporate domination of the internet.
This interview took place in early 2017.
Let’s start off with defining net neutrality itself, for folks who may not be familiar with the concept. What is net neutrality, and why does it matter?
Net neutrality is the principle that all information, all platforms, all applications, and all services, are treated equally by internet service providers (ISPs). So that there’s no preferential treatment and no distortion of the marketplace.
What was the status of net neutrality before Trump? What did net neutrality look like under Obama?
The last FCC chairman under Obama was Tom Wheeler. At the end of Chairman Wheeler’s term, the FCC made a very clear decision to uphold net neutrality. This was the Open Internet Order of 2015, and it reclassified broadband services as telecommunications services that were subject to “common carrier” regulation under the Communications Act of 1934.
This laid out a very clear nondiscrimination standard that governed how ISPs were supposed to treat data. By law, they couldn’t prefer certain bits over other bits. And the DC Circuit Court validated the FCC’s rules in 2016. The court said they were perfectly lawful.
Once that happened, the legal obligations of the ISPs were very clear. They had to maintain a neutral network. So that’s where we left off, until the new Administration came in. Now the next chapter is being written.
Tell us about that next chapter. So far, what has the Trump Administration signaled that it’s going to do—or what has it already done—in regards to net neutrality?
We don’t really know where the President stands on these issues. We do know where his FCC chairman, Ajit Pai, does. Pai voted against a preliminary version of the Open Internet Order, the underlying legal rules put forward by the FCC to establish a neutral network.
However, his hands are a little bit tied. If Chairman Pai really wanted to undo net neutrality, he would have to take the FCC out of the equation as a consumer protection agency. He would have to make the argument that the FCC no longer has the legal authority to regulate the cable and telephone companies. That somehow the law—which as recently as 2016 has been interpreted by the courts to say that the FCC has clear consumer protection authority over cable and telephone companies—isn’t true anymore. And he would need the judiciary to agree.
That’s what he needs to do to inflict direct damage. But he can also inflict indirect damage, simply by sitting on his hands as the enforcer. He can watch the cable and telephone industry violate net neutrality, and violate the law, and do nothing.
The other side is what Congress does. But the road there is a lot harder for the anti-net neutrality crowd. The Democrats are almost universally in favor of net neutrality. Even as the minority party, you would need a handful of them to produce any sort of major legal change on the issue. And that seems very unlikely at this point.
When you talk about Chairman Pai sitting on his hands and refusing to enforce net neutrality, what does that mean concretely? What are some examples of companies violating net neutrality?
Zero-rating is a perfect example. Just before leaving office, Chairman Wheeler issued a comprehensive report about the zero-rating practices of AT&T and Verizon. It detailed the ways they were running afoul of the nondiscriminatory standard of the Open Internet Order.
Shortly after taking office, the new FCC chairman rescinded those reports and issued a statement saying they have no legal effect. And what that communicates to the industry is: you’re A-OK, do whatever you want.
That happened very swiftly. But I suspect there’s not many other things like that, which Chairman Pai can unilaterally rescind. What he can do is go to the FCC’s Enforcement Bureau—the folks who monitor the industry to ensure they are in compliance with the law—and tell them to stand down.
What are the Trump Administration’s motivations here? What’s behind this push to dismantle net neutrality? Who benefits?
The Trump Administration is serving its corporate constituency. Cable and telephone companies are among the most prolific political donors in the country, and they donate heavily to both Republicans and Democrats.
Take Comcast. Comcast is one of those multi-headed hydras in the political space. They’re not just a cable company. They’re also a movie studio. They’re also a broadcaster. And each of those divisions donate to political parties and campaigns, and establish relationships with politicians. Then they use that influence to stifle any consumer protection activity.
The Trump Administration and the Republicans know they’re going to receive millions and millions of dollars in campaign support from a small handful of large telephone and cable companies. That tends to be enough for them to say, “Okay, we’ll look the other way.” So long as the average voter doesn’t raise their voice in opposition and make this a difficult political issue, politicians are more than happy to take the cash in silence.
The cable and telephone companies have an interest in dismantling net neutrality, but what about Silicon Valley? Where do the bigger tech companies like Google and Facebook fit into this fight?
In their infancy, those big Internet companies were very active on issues of net neutrality. Today, however, while they won’t say they’re opposed to net neutrality, the energy for defending it just isn’t there.
And that’s mostly because, to be quite frank, if the Republicans do away with net neutrality protections, it’ll hurt smaller startups, not the bigger corporations. Google and Facebook and others wouldn’t care because they’ve already made it. They can sign exclusive contracts with ISPs and survive, because they have an enormous amount of cash on hand to be able to sustain the more discriminatory model.
I do worry a lot about the more established players seeing an opportunity here. If you got rid of net neutrality, if you scrapped the Open Internet Order, it would essentially cement their place in the market. They would no longer have to fear a new competitor entering the market, catching the attention of the American consumer, and challenging their dominance. That’s an extremely attractive proposition for the big tech companies.
But there’s persistent divide in the tech industry on this issue between the executives and the rank-and-file engineers. The executives are always our problem. They’re always thinking, “Well what’s going to maximize the profits?” It’s the people who work under them who want to shape the world in a positive way, and who aren’t as tied to that overriding profit motive.
So how do you activate that rank-and-file on net neutrality, if their bosses are moving in the opposite direction?
At EFF, a lot of our biggest fans are the rank-and-file workers at these tech companies. Prior to Trump’s inauguration, we launched a campaign targeted at those workers, asking them to push back on government surveillance. We told them: Before the government comes to ask for data, delete your logs. Do not retain information that you do not absolutely need to provide a service, because information you don’t have, you can’t surrender. You can’t be forced by a court or by the FBI to hand over something you don’t have.
The campaign had been fairly successful in raising awareness, but Trump’s executive orders on immigration kicked off an enormous amount of energy among the rank and file. About a month before the inauguration, the leaders of the biggest tech companies had a meeting with the President where none of them challenged him on anything. They all just sat around and smiled and nodded. It wasn’t until the first immigration order that these companies started deploying legal resources to fight what the Administration is doing.
But I think those executives would’ve loved to have just smiled and nodded for four years, and get some tax breaks. Fortunately, the people who work at these companies convinced their bosses that they had to take a stand or the workers would quit. A lot of people don’t want to work for a company that appears to be enabling the racism and xenophobia that is coming from the government right now.
In addition to tech workers holding their own leadership accountable internally, do you see any potential for broader mobilizations? Do you see a wider movement developing around net neutrality?
I’m seeing an enormous amount of energy from people right now. And not just from the left and the center-left—I know plenty of folks who voted Republican who are upset with this Administration.
I think the real challenge is that there are so many things happening at once that it’s very hard to get everyone to mobilize on everything simultaneously. Rarely have we been faced with so many consequential decisions that get at the heart of what it means to be an American.
I wonder if one of the challenges with rallying broader public support around net neutrality is the technical nature of the issue. Is it difficult to explain to folks what net neutrality is, and how it impacts their lives in a concrete way?
When I have to talk to someone who’s fairly new to the issue and not super technically savvy, I break it down to the fundamentals. We’re talking about a highly concentrated industry—cable companies and telephone companies—that, on average, most Americans are very unsatisfied with. And this industry is gaining more power, and monopolizing more of the internet.
People don’t need to get into the details to understand the fundamentals of the fight. This is purely about who is in charge of the internet. Is it going to be the cable industry and the telephone industry? Or is it going to be consumers?
What does that fight look like going forward?
It’s really important that people understand that the political process still works. Folks get scared or disenchanted or discouraged when they see the executive branch taking a lot of actions that are not widely supported by the American people.
But the reality is that Congress has an important role in all of this. And even though the party of the President is in charge, they’re still persuaded by mobilization. They’re still persuaded by the fact that they have to answer to the voters at the end of the day. So long as people keep doing what they’re doing—going to town halls, making phone calls to their elected officials on issues they care about—showing up, essentially—that has a profound impact on legislators. Because politicians who recognize they are going to face a tough election will respond to that. And there’s more than enough of them in Congress to always control the outcome of the agenda.
Take net neutrality. To push it over the finish line with the Open Internet Order in 2015 required about four million people contacting the FCC over a period of about a year. That’s how we got the strongest interpretation of the law on the books.
If and when the FCC decides to try and roll back net neutrality, and hand over the internet to the cable and telephone industry, I want that number to go to eight million. I want us to get to a number that shakes them at their core and gets them to second-guess the political fallout of what they’re doing. Because these are all political creatures. They all will think about whether or not what they‘re doing can be sustained in popular opinion at the end of the day. And we need to persuade them that the public stands for a free and open internet.
This has been a free interview from Tech Against Trump, a book by Logic chronicling the rising tide of anti-Trump resistance by tech workers and technologists.