MarkStanley

What went down with the "cyber attack" that never was, and with Chairman Pai's handling of the situation, raises enormous credibility issues and flaws with the FCC's process around its disastrous repeal of net neutrality, to say the least. This definitely provides a bigger opening for lawmakers in the House to sign the discharge petition to pass the CRA and reverse the FCC's move to gut net neutrality. Many lawmakers, including Republicans, want to sign the discharge, because they know doing so is what their constituents want, especially ahead of the midterms -- but there is also some hesitancy to buck House leadership by signing the discharge. It's up to internet users and the public to highlight the FCC's lies and flawed process with their members of Congress -- if reps hear enough from their constituents on this, it can give them the resolve to sign the discharge. We've seen this, including with Republican Rep. Mike Coffman signing the discharge, but we have to use every opportunity, including the FCC's handling of this phony cyber attack, to keep pressure on lawmakers.

The Daines-Wyden amendment would make clear that the government is prohibited from using the PATRIOT Act to surveil web browsing and search histories without a warrant. It is being offered as an amendment to H.R.6172, the USA FREEDOM Reauthorization Act, which the House will vote on this week.

UPDATE, 5/27/20: Things have been unfolding super quickly over the last 18 hours, and I wanted to provide an update. This amendment in the House was to be offered by Reps. Lofgren and Davidson, and it was supposed to mirror the Daines-Wyden amendment in the Senate. According to the NYT, over Memorial Day weekend:

Speaker Nancy Pelosi instructed Ms. Lofgren to negotiate with Mr. [Adam] Schiff, the chairman of the House Intelligence Committee, to see whether they could arrive at compromise language that would narrow the Senate version [of the amendment]. Over the holiday weekend, they agreed to limit the protection to Americans.

It was not clear, however, how far the new rule would go, were it to be enacted into law...

However, later in the same NYT piece, statements from Schiff—a surveillance hawk who has demonstrated time and again he wants to give the president nearly unlimited surveillance powers, despite his billing as a "resistance leader"—made it apparent he had inserted Trojan horse language into the Lofgren-Davidson amendment that, as written, would not protect the internet activity of innocent people from mass surveillance.

These statements from Schiff caused Senator Wyden to pull his support for the House version of the amendment. (To stay updated on these developments, I recommend following the reporting of Dell Cameron at Gizmodo, who has been covering this intensely — here's Dell on Wyden pulling his support.)

My organization Demand Progress has also pulled our support. We are recommending Members of Congress now oppose the so-called "USA FREEDOM Reauthorization Act" and the Lofgren-Davidson amendment as it currently stands, after Schiff's inexcusable move to weaken it from the version that Senators Daines and Wyden offered, which was supported by 61 senators, over 80 advocacy groups from the left and right, and some of the internet's largest companies, as well as tens of thousands of Americans who have contacted Congress in support. Will provide more updates as they unfold.

And to go a little deeper, the USA FREEDOM Reauthorization Act would extend some domestic surveillance provisions, such as Section 215 of the PATRIOT Act. (Section 215 is infamous as the authority the NSA (wrongly) used to justify the mass surveillance of call detail records, which Edward Snowden revealed in 2013; in 2015, a federal court court ruled this interpretation of Section 215 to justify such mass surveillance was “unprecedented and unwarranted.") Section 215 actually expired in March of this year, when Congress failed to vote to renew it before it sunset — the Daines-Wyden amendment would make it clear that when Congress votes to extend Section 215 under the USA Freedom Reauthorization Act this week, it cannot be used for warrantless surveillance of browsing and search history.

In December 2017, in the days leading up to the FCC's repeal, thousands took to the streets in protest, outside Congressional offices and Verizon stores (Verizon being one of the biggest net neutrality opponents in Washington -- and, it so happens, Chairman Pai's former employer). https://www.huffingtonpost.com/entry/net-neutrality-fcc-protests_us_5a2a147ce4b069ec48ac307e This was along with millions of calls and emails to Congress -- and what we saw in the aftermath was pretty convincing. After this public display of opposition to the FCC's move to end net neutrality, all 49 Senators in the Democratic Caucus supported the CRA to reverse the FCC -- and getting all 49 Dems on board in the Senate is *never* a given. Then, Republican Senators Collins, Murkowski and even Kennedy in Louisiana signed on, and no one really could have predicted this with any kind of confidence in late 2017. I 100% understand the skepticism, but I think we've seen on net neutrality that there is absolutely an opening to persuade lawmakers on this -- they've seen the polls that show nearly 9 out of 10 Americans oppose the FCC's repeal, and they're feeling the pressure from constituents. If we can keep it up, we can definitely get the 40 more reps we need in the House this year. It won't be easy, but we're not giving up anytime soon.

It has a lot to do with net neutrality. First, under the 2015 Open Internet Order, which was repealed in December 2017 by the Federal Communications Commission (that repeal went into effect in June 2018), there was the 'general conduct rule' -- this prevented ISPs from unreasonably interfering with “end users’ ability to select, access, and use broadband internet access service." Because Verizon was not supposed to throttle service during times of emergencies and didn't immediately stop the throttling when it was brought to its attention, and because the Santa Clara Fire Department said it experienced throttling at all times after it passed its cap, and not necessarily only during times of network congestion (which would be permitted under the 2015 OIO's 'reasonable network management' exception), the Department would have had a strong case that Verizon violated the general conduct rule. But the general conduct rule was thrown out with the repeal of net neutrality. Further, under the 2015 net neutrality protections, the Santa Clara Fire Department would have had recourse to bring a complaint to the Federal Communications Commission on this, which could address the situation to ensure other incidents like this would never happen again -- that avenue no longer exists with the repeal of rules, as the FCC abdicated its responsibility to oversee the broadband market.