This has been a big year for TechFreedom — and for tech policy. Thank you to everyone who’s helped: our donors, our podcast guests, speakers on our panels, coalition partners, and all those we’ve tossed ideas around with.
Special thanks to those we’ve debated and disagreed with. More than anything, we’re in this to think things through — and we can’t do that without hearing strong arguments from the other side. That’s why we always find the best advocates on all sides for our panels. It’s the number one reason we started our podcast: to talk through hard policy issues. As Learned Hand, the best-named and perhaps most thoughtful judge of the 20th century, said, “The spirit of liberty is the spirit which is not too sure that it is right.”
So what have we been up to? Here are a few key things:
- Our Tech Policy Podcast has reached 210 episodes and over 115,000 downloads. Subscribe today, if you haven’t already! Here are a few of our most popular and important episodes to start with, including several with sitting FCC and FEC Commissioners.
- Evan, our tireless podcast host and director of external affairs, has joined the staff of FCC Commissioner Brendan Carr — but the show must go on. We’ll be posting a job description shortly, but feel free to send resumes or ideas our way!
- Did you miss our “Back to the Future” conference in July? You can watch all the video online now!
- Have you been to one of our Drinks Download happy hours? We partner with another group — from anywhere across the political spectrum — every other week to meet up on Capitol Hill with other geeks, staffers, journalists… anyone who wants to talk tech policy. Sign up today!
- You may have noticed that we’ve updated our website. More changes will be coming in 2018, especially to make our written content more accessible.
And what have we been working on?
Stopping FCC Regulation of the Internet: There used to be a broad, bipartisan consensus that we can’t trust the FCC to regulate the Internet. People on the the Left used to warn that the FCC’s claims of authority to do things they liked (say, policing net neutrality), could be “Trojan Horses.” They’d even sue to block the FCC’s jurisdictional overreach. Larry Lessig even wanted to abolish the FCC and start over. Unfortunately, that skepticism has all but evaporated in the needless, divisive, decade-long fight over net neutrality.
The President’s threats about cancelling broadcasters’ licenses and meddling in media mergers have provoked outrage — and rightly so. Yet some of Trump’s most ardent critics still insist we should trust the FCC with the greatest possible power over the Internet. It makes no sense, as my Washington Post piece explains.
We were among the first to sound the alarm in 2014 when the D.C. Circuit gave the FCC a nearly blank check to regulate the Internet under Section 706. When the FCC claimed even more power in 2015 under Title II, we joined the legal challenge against the FCC.
Our fellow Intervenors aren’t broadband providers. They’re VoIP entrepreneurs who worry that the ever-expanding definition of “net neutrality” will hurt their services. In the D.C. Circuit litigation over the last two years, we were the only party to argue that Chevron deference doesn’t apply to such “major questions” of “vast economic and political significance.” That’s not a right-wing idea; it comes from Justice Breyer.
Three D.C. Circuit judges agreed with us in their dissents, and now the “major questions” doctrine is at the center of the case presented to the Supreme Court. We led the way and the “big dogs” in the case followed. The Court might decline to hear our arguments, simply because Chairman Pai has already undone the FCC’s claims of broad power. And Pai’s order will be upheld on Chevron grounds. But eventually, the Supreme Court will have to decide whether to grant Chevron deference on the most “major” question of all, regulating the Internet — unless Congress acts first.
Read more about this fight here.
Net Neutrality: As we keep telling our friends on the Right, the core of “net neutrality” isn’t controversial — even broadband providers don’t object. The problem is that the FCC’s legal authority has been conflated with “net neutrality,” and the term’s meaning has been expanded to cover things it didn’t used to. Only Congress can resolve the net neutrality fight once and for all. Absent legislation or a clear Supreme Court decision, which federal agency handles net neutrality and how will keep ping-ponging back and forth depending on elections.
Broadband Deployment. We’ve long said that the net neutrality fight is largely driven by frustration over broadband deployment — and that’s where we should focus. Nearly three years ago, we called for the FCC to making removing barriers to broadband deployment a top priority — and to tap the collective knowledge of providers, state and local governments, and others by creating a Broadband Deployment Advisory Committee.
This year, the FCC took our advice. We’ve been proud to serve on the BDAC’s State and Local Barriers Working Group. The full BDAC will make its recommendations early next year, and then the real work will begin, both at the FCC and in Congress, state legislatures, and city halls across the country. We’ll do everything we can to help government get out of the way, but also to be a smart partner for private companies trying to serve the underserved, or increase broadband competition.
FTC Reform: In 2013, we dubbed the FTC the Federal Technology Commission, and the name has stuck. The Commission increasingly handles the hard consumer protection and competition concerns raised by the Digital Revolution — from privacy to data security, increasingly things like product design, and now, just as before 2015, net neutrality. In September, I testified before the Senate Commerce Committee about how lawmakers might think about updating the FTC’s processes — and how the FTC will benefit from such course corrections. It’s been a generation since Congress last revisited the FTC’s operations and, in that time, the FTC has built a sprawling “soft law” of nothing but out-of-court settlements. Congress can’t keep letting the agency drift forward on autopilot. Read the amicus brief we filed last January for more on the problem.
Section 230: Legislation has been rushing through Congress to amend Section 230, the law that made the Internet possible. The Stop Enabling Sex Traffickers Act (SESTA) would hurt the very people it’s intended to help: those exploited by sex trafficking. As drafted, the bill’s vague knowledge standard would discourage websites from actively monitoring their sites to help fight trafficking. Avoiding what Professor Eric Goldman has called the “Moderator’s Dilemma” was the chief reason Congress enacted Section 230 back in 1996, and it it remains essential to ensuring that any new federal law doesn’t backfire.
TechFreedom has worked tirelessly with other interests groups that both supported and opposed SESTA to find the best way to combat sex trafficking — without discouraging content moderation or driving lawful sites out of business. Lawmakers in the House listened. The House Judiciary Committee Subcommittee started over and refocused their bill on criminal intent, which avoids the Moderator’s Dilemma. Their new version of the ‘Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA) passed out of the House Judiciary Committee without objection. It’s not perfect, but it’s a far better bill than SESTA, as we’ve explained.
Sex trafficking is only one of several hard intermediary liability issues Congress faces in 2018. Making sure Congress doesn’t fundamentally upset the balance it struck with Section 230 will be among our top priorities next year.
Surveillance & Privacy. We work closely with organizations across the political spectrum up on issues of the U.S. government’s surveillance programs, and to educate lawmakers and the public about how to protect national security in the most privacy-friendly way. Everyone’s top concern has been the Section 702 surveillance program, which is set to expire December 31. That program gathers and search through foreign electronic communications without a warrant. But a small sampling by the Washington Post sampling found that 50% of communications — including emails, private messages, and photos — collected under Section 702 involved U.S. persons.
We’ve helped explain the downside of such expanding such surveillance, and have pressed the case for finally reforming the program. At a minimum, we need transparency as to how many Americans are being swept up in 702 surveillance — so we can understand just how much private information potentially accessed without a warrant. Check out our:
- Section 702 panel with Engine
- Expert Facebook Live Roundtable at Learn Liberty
- Op-Ed on the 702 Sunset, co-authored with RSI
- Podcast “Surveillance in 2017… and Beyond”
We also continue monitoring European concerns about the lack of institutional oversight over American surveillance. Negotiations that take into account these questions directly affect our economy. That’s why we support re-staffing the Privacy and Civil Liberties Oversight Board.
We’ve also continued working on facial recognition — with more to come.
That’s just an overview of what we did in 2017.
In 2018, we’ll keep doing what we’re best at: careful legal analysis combined with non-partisan, pragmatic realism about what can get done. As Washington seems increasingly driven by vague slogans, as everyone retreats deeper into their ideological corners, we think the work of true think tanks is more important than ever.
We hope you agree — because we can’t do it without your support. We’re a 501(c)(3), so you can make a tax-deductible contribution online today. You can even mail us a check if you prefer; our address is at the bottom of this page.
Thank you for your support and your attention.