Net Neutrality: Two Sleeper Legal Issues May Force Congress to Act
Szoka and Owens on the “major questions” doctrine and Section 230 protection for ISPs:
The Major Questions doctrine doesn’t always mean the government loses. In fact, in King v. Burwell, Chief Justice Roberts invoked the doctrine, reviewed the statute de novo (instead of deferring under Chevron), and yet upheld it anyway. The doctrine isn’t some right-wing trick for crippling the regulatory state; it actually originated with Stephen Breyer, before Bill Clinton appointed him to SCOTUS.
But if regulating the internet isn’t a “major question,” it’s hard to see what could be. Indeed, Federal Circuit Judge O’Malley, another Clinton appointee, recently called regulation of the Internet a major question. Her dissent objected to the International Trade Commission’s attempts to regulate downloads as “articles” under its 1930s statute. “The responsibility,” she concluded, “lies with Congress to decide how best to address these new developments in technology.”
The second, related legal issue no one’s talking about (at least in this context) is Section 230 — the broad immunity for online services that’s gotten so much attention this summer because legislation is gathering steam to amend that immunity to go after sex traffickers. There’s no question that the law protects broadband companies just as much as it protects websites like Google and Facebook. That means broadband providers can’t be sued for blocking third-party content on their sites, so long as they do so in “good faith.”
Read the whole thing at: Net Neutrality: Two Sleeper Legal Issues May Force Congress to Act