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Justice Department Sues to Stop California Net Neutrality Law

nytimes.com

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Re: Justice Department Sues to Stop California Net Neutrality Law

#121

Post by pas »

Vendan wrote: post #120
pas wrote: post #117

Earlier quoted context omitted.

Not so fast. The same clause also does not cover a lot of things. And ISPs are very much the perfect example of truly local things. And those are not covered. But we shall see what the courts find.

I don't have an ISP to talk to the ISP's server, I have an ISP to talk to the global internet, so it's very much not local...

Your choices of ISPs is. You buy a connection to a network. Thus the trade happens between you and locally present businesses.

The interstate effect could be due to different services available on the network. So due to the lack of throttling the bundles that the ISPs like to sell wouldn't work, because you could easily buy Netflix or any other non local content.

Re: Justice Department Sues to Stop California Net Neutrality Law

#122

Post by pas »

Vendan wrote: post #119
pas wrote: post #116

Earlier quoted context omitted.

The limit is established, and constantly reevaulated by the Supreme Court. For example it was held that gun control cannot be done through the Commerce Clause. Car emissions and ISPs are different. As ISPs are very much perfect examples of truly local things (they need to reach your devices with EM signals either via cables or air radio), the Federal government might try to argue that the net neutrality regulation of…

ISPs are the very opposite of local, as the only reason I have an ISP is to deliver bits from the rest of the world. Of course, the FCC doesn't seem to understand that...

I've replied to your other comment, but to reiterate, you subsrcibe to a particular ISP, and especially in case of a cable/wire mediated connection, your choices are by definition all local.

Even if it is provided by corporations from out of state.

The Internet is the very opposite of local, yes. But the last mile connection, the way your packets get to the nearest IXP is local. And that's where the oligopoly and thus the throttling happens.

Re: Justice Department Sues to Stop California Net Neutrality Law

#123

Post by Vendan »

pas wrote: post #121
Vendan wrote: post #120

Earlier quoted context omitted.

I don't have an ISP to talk to the ISP's server, I have an ISP to talk to the global internet, so it's very much not local...

Your choices of ISPs is. You buy a connection to a network. Thus the trade happens between you and locally present businesses. The interstate effect could be due to different services available on the network. So due to the lack of throttling the bundles that the ISPs like to sell wouldn't work, because you could easily buy Netflix or any other non local content.

My selection of ISPs is local, but so is my selection of power companies, housing, heck, even grocery stores. I choose my ISP on primarily non-local considerations, so I don't think it's quite as cut and dry as you state. (i.e. I choose my ISP because of it's connections to other states and countries, not because of my connection to it.)

Re: Justice Department Sues to Stop California Net Neutrality Law

#124

Post by tmaly »

pas wrote: post #112
tmaly wrote: post #92

Earlier quoted context omitted.

I think this was a serious abuse of the commerce clause. It seems you could effectively argue that anything affects interstate commerce and extend this type of reasoning in a way that circumvents the idea of commerce within the confines of the state border. This type of abuse of the commerce clause should be rolled back to something more sane that reflects the original intent. The courts seem to bend the words of the…

You of course can argue that anything and everything affects interstate commerce, but ... in 1995 in Lopez the Court held that, no, there are truly local things, and laws not dealing with commerce (like the gun-free zone for schools act that was struck down at that time) lack authorization from the Constitution. And this view was again reinforced in Morrision. Congress tried to use the Commerce clause to criminalize…

I am not quite sure the market(s) got saner. I would argue that these laws impeded the recovery during the great depression. We had a mini depression in 1921 that recovered much faster without this overreach of the commerce clause.

Re: Justice Department Sues to Stop California Net Neutrality Law

#125

Post by gnode »

wahern wrote: post #109
gnode wrote: post #87

Earlier quoted context omitted.

Because the US justice system inherits from English common law. The moral motivation is that it is unfair to judge equivalent cases differently. This contrasts with civil law systems, used predominantly throughout mainland Europe / ex-Roman empire, which have the moral motivation that explicit codification of the law is the best way to be fair.

Civil Law systems have a doctrine similar to stare decisis with the same logic--fairness in outcomes. It just operates differently because of different views about the structure of government. I think the main reason that Civil Law systems have voiced opposition to judge-made law is because since their advent (French Revolution onward) Continental systems have emphasized democratic control and thus the supremacy of t…

Interesting.

> American law didn't inherit such a notion of unlimited legislative authority.

I wonder if this is due to US's structure being that of a constitutional republic rather than a democratic republic. I.e. the Supreme Court (which executes the constitution) must be superior to the legislature.

Re: Justice Department Sues to Stop California Net Neutrality Law

#126

Post by westurner »

Vendan wrote: post #119
pas wrote: post #116

Earlier quoted context omitted.

The limit is established, and constantly reevaulated by the Supreme Court. For example it was held that gun control cannot be done through the Commerce Clause. Car emissions and ISPs are different. As ISPs are very much perfect examples of truly local things (they need to reach your devices with EM signals either via cables or air radio), the Federal government might try to argue that the net neutrality regulation of…

ISPs are the very opposite of local, as the only reason I have an ISP is to deliver bits from the rest of the world. Of course, the FCC doesn't seem to understand that...

To summarize the points made in [1]: products can be sold across state lines, internet service sold in one state cannot be sold across state lines.

[1] https://news.ycombinator.com/item?id=18111651

In my opinion, the court has significantly erred in redefining interstate commerce to include (1) intrastate-only-commerce; and (2) non-commerce (i.e. locally grown and unsold wheat)

Furthermore - and this is a bit off topic - unalienable natural rights (Equality, Life, Liberty, and pursuit of Happiness) are of higher precedence. I mention this because this is yet another case where the court will be interpreting the boundary between State and Federal rights; and it's very clear that the founders intended for the powers of the federal government to be limited -- certainly not something that the Commerce Clause should be interpreted to supersede.

What penalties and civil fines are appropriate for States or executive branch departments that violate the Constitution; for failure to uphold Oaths to uphold the Constitution?

Re: Justice Department Sues to Stop California Net Neutrality Law

#127

Post by wahern »

gnode wrote: post #125
wahern wrote: post #109

Earlier quoted context omitted.

Civil Law systems have a doctrine similar to stare decisis with the same logic--fairness in outcomes. It just operates differently because of different views about the structure of government. I think the main reason that Civil Law systems have voiced opposition to judge-made law is because since their advent (French Revolution onward) Continental systems have emphasized democratic control and thus the supremacy of t…

Interesting. > American law didn't inherit such a notion of unlimited legislative authority. I wonder if this is due to US's structure being that of a constitutional republic rather than a democratic republic. I.e. the Supreme Court (which executes the constitution) must be superior to the legislature.

There's no reason that the legislature cannot be the arbiter of constitutionality. This is the case in many other systems, including many Common Law nations with a written constitution but which adhere to the doctrine of Parliamentary Supremacy. At the time of the Revolutionary War there were a diversity of opinions on this, though I think resolving the issue wasn't at the forefront of the debate as other questions about the structure of government (especially Federalism) were considered much more interesting and important.

In fact, the Supreme Court has carved out an exception to judicial review that leave some questions of constitutionality to Congress: https://en.wikipedia.org/wiki/Political_question This is especially relevant given the buzz about impeachment because one would normally think that the definition of "High Crimes and Misdemeanors" is precisely the kind of question our courts were intended to answer.

The U.S. is rather unique in investing constitutional review so thoroughly with the judiciary. Most nations, I believe, either adhere to Parliamentary Supremacy or have a special Constitutional Court even though almost every political system subsequent to the U.S. has a written constitution. Also, U.S. judges have lifetime appointments, whereas most other systems permit the legislature to more easily replace judges (see, e.g. the recent controversy in Poland regarding its Constitutional Tribunal).

The U.S. inherited a very strong normative legal system from Great Britain. The nascent U.S. didn't experience the same turmoil and radicalism as did the French, even though there was a ton of cross-pollination of ideas. Because we had such a strong legal system from the outset I think there was less pressure to put all our eggs into the basket of populist democracy, and were able to leave dormant some difficult questions, both at the state and Federal levels. A few decades later (and culminating in the Civil War) we resolved many of them differently (at least in their technical operation) than Europe did because we had set on our own path so early.

Justice Scalia is often held in esteem for his flavor of Originalism and statutory interpretation, but if you read Scalia's scholarly works he very much believed that U.S. courts (including the Supreme Court) should adhere more closely to a Continental European model, one which circumscribes judicial review to the narrowest possible scope. But that's a normative political philosophy that emerged after the Founding of the U.S. (not to mention on a different continent), which means its absolutely not original in any sense. The 19th century Continental European model clearly emphasizes the supremacy of the legislature as the preeminent democratic institution. But this was not the case in the U.S. Issues of Federalism were of primary concern, and those issues meant that the U.S. was grappling with a more complex definition of "democracy", one that wasn't just about how to allow the population to exercise political autonomy in accordance with moral law[1], but how to allow several distinct populations to exercise and moderate their autonomy in tandem.

[1] Moral law meaning concepts of justice and liberty shaped by Western Christianity (including Greek philosophy and Roman law), the Enlightenment, and the Scientific Revolution.

Re: Justice Department Sues to Stop California Net Neutrality Law

#128

Post by pas »

Vendan wrote: post #123
pas wrote: post #121

Earlier quoted context omitted.

Your choices of ISPs is. You buy a connection to a network. Thus the trade happens between you and locally present businesses. The interstate effect could be due to different services available on the network. So due to the lack of throttling the bundles that the ISPs like to sell wouldn't work, because you could easily buy Netflix or any other non local content.

My selection of ISPs is local, but so is my selection of power companies, housing, heck, even grocery stores. I choose my ISP on primarily non-local considerations, so I don't think it's quite as cut and dry as you state. (i.e. I choose my ISP because of it's connections to other states and countries, not because of my connection to it.)

But there's no market for ISPs where far away ISPs come and present their connections to you. Similarly with housing, even though it's physically possible, real estate markets don't go to the buyers, you don't see houses physically moving to potential buyers. Similarly, thousand mile cables are not laid down for everyone.

And out of state grocery stores don't go to you, even though you can go to them online nowadays. (And in that sense they advertise to you from out of state.)

So, just as you can pick a barber/hairdresser because it can show you the newest trends from other barbers from out of state, you still do the transaction locally, even if the whole hair-onomy might be global.

That said, this is a complex multifaceted problem. (Otherwise everyone would have understood it well by now, even Pai, and everyone would be on the same side, etc. Just as water is wet, the Earth is round, vaccines have amazing cost-benefit ratio, the climate is changing, and emission reduction is the right response, and so on. Ha-ha.) And ultimately we can reason however we want, it's up to some judges to figure this out.

If there were a federal law regulating ISPs, and the whole telecom market, and they were challenged based on lack of constitutional authorization, it'd probably get dismissed fast. (As there are already such laws.) But this is the other way around, and on top of that this is a set of regulations that don't clash with the federal ones, they are merely stricter. (And I'm completely out of my depth about the question of whether the FCC could write rules that'd give rights to ISPs that states can't abridge - or only Congress could do that. But I suspect it can, but only if the regulation has a substantial difference in interstate commerce --- which is the question, is there even an interstate ISP market, and I guess that there isn't.)

Re: Justice Department Sues to Stop California Net Neutrality Law

#129

Post by pas »

westurner wrote: post #126
Vendan wrote: post #119

Earlier quoted context omitted.

ISPs are the very opposite of local, as the only reason I have an ISP is to deliver bits from the rest of the world. Of course, the FCC doesn't seem to understand that...

To summarize the points made in [1]: products can be sold across state lines, internet service sold in one state cannot be sold across state lines. [1] https://news.ycombinator.com/item?id=18111651 In my opinion, the court has significantly erred in redefining interstate commerce to include (1) intrastate-only-commerce; and (2) non-commerce (i.e. locally grown and unsold wheat) Furthermore - and this is a bit off top…

The problem is, someone has to interpret what kind of economy the Founders intended.

Is it okay if a State opts to withdraw from the interstate market for wheat? Because without power to meddle with intra-state production, consumption and transactions, it's entirely possible.

Re: Justice Department Sues to Stop California Net Neutrality Law

#130

Post by village-idiot »

justtopost wrote: post #61
guelo wrote: post #52

Earlier quoted context omitted.

But if a liberal makes a joke abut southern rednecks than they get all indignant about how elitist and offensive they are. So tiresome.

Bigotry is wrong on both sides. Seems odd to make it partisan when 'both' sides are spewing hate. Most of us just wish either extreme would pack it in.

I believe that pointing to a location and saying “look at what policies X and Y have done, let us adjust our messaging and policies in accordance with this new information” is perfectly fair. Characterizing the locals in those environs as inferior or fundamentally incorrect is morally wrong.

So in this regard, desparaging california’s policies is completely fair. So would bashing on say, Kansas. But calling California the home of “libtards” or calling Kansas full of rednecks would not be fair.

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