Although Congress may have just inadvertently given telecommunication companies a huge legal boost to engage in network management via the pretext of “terrorism-related” surveillance, it is a long shot from being a done deal. For starters, the Electronic Frontier Foundation has launched the first in what is expected to be a multi-lateral legal attack on the constitutionality of the FISA Amendments Act; the starting point is a claim that the law violates the separation of powers clause of the Constitution, in that Congress’ action unconstitutionally empowered the Executive branch while emasculating any judicial oversight or reprimand of abuses conducted under the permission of the legislature.
Should the entire FISA Amendments Act be declared unconstitutional – and not just the provision granting telecom companies retroactive immunity for spying on us without proper legal justification – the diminishment of network neutrality under the auspices of national security would be undermined, perhaps fatally. That would be a very good thing. EFF’s legal experts don’t expect action on their lawsuit to really begin to gain traction until later this year – right around (or shortly after) the November elections. The case itself won’t likely be resolved until sometime next year at the earliest.
The other glimmer of hope is Federal Communications Commission Chairman Kevin Martin’s intent to sanction Comcast in some way, shape, or form for unjustly interfering with communications across its network. The actual penalty remains to be determined, but will most likely involve a monetary forfeiture. The sanction-proposal is currently being drafted at the FCC, and it is reported that the full Commission may vote on the issue at their August 1st meeting.
This is quite a change of stance for Martin and the FCC. Although the agency has opened an inquiry into just what network neutrality is (and should be), it has undertaken this task reluctantly, and prior comments by Martin had suggested that he’d rather let “the marketplace” sort out the issue. The fact that Martin’s newly-stated intention comes just shortly after the passage of the FISA Amendments Act suggests perhaps that the agency itself is aware of how the legislation may limit its options for dealing with future policy, which has forced the FCC to move more forcefully against Comcast than it might have originally intended.
Meanwhile, the “Internet Freedom Preservation Act” languishes in committees in both the House and Senate; passage of the bill is not likely during this session of Congress, which means the grassroots lobbying effort to enshrine the principle as law legislatively will most likely have to start over next year.