Title II, Robert McDowell, And The Boy Who Cried ‘Black Helicopter.’

I noted with some considerable interest the February 17 Wall St. Journal Op Ed by Former FCC Commissioner Robert McDowell and Gordon M. Goldstein describing how reclassifying broadband as a Title II telecommunications service will invariably lead to “the International Telecommunications Union (ITU), a regulatory arm of the United Nations” asserting jurisdiction over the Internet. As a consequence, McDowell warns us, the ITU will allow freedom-hating dictatorships such as Russia and China to take control of “Internet governance,” extend censorship to the Internet, and generally crush freedom-as-we-know-it.

What I noted, however, was the remarkable similarity between this column and McDowell’s 2010 Wall St. Journal Op Ed on the same theme. “The U.N. Black Helicopters will swoop down and carry off our Internet if we try to reign in carriers from abusing consumers and adopt real net neutrality” has become a perennial favorite for McDowell and some others. We heard the same cries in 2012 as we geared up for the ITU’s World Conference on International Telecommunications (WCIT). In the lead up to the WCIT, the refusal of then-FCC Chairman Julius Genachowski to close the inquiry into whether to reclassify broadband as Title II prompted more than a few anti-net neutrality advocates to claim that supporting Title II, or even just plain ‘ol net neutrality, gave aid and comfort to Russia, China, Iran, etc. in their efforts to use the ITU to take over the Internet.

So no surprise, as we move closer to actually reclassifying broadband and getting strong network neutrality rules in place, it is time once again for the annual reunion tour of Robert McDowell and the Black Helicopter Band. Despite making the same wrong prediction about the ITU for the last 5 years, we will once again see Robert McDowell and the usual suspects singing backup that reclassifying broadband will serve the nefarious agenda of Russia, China and anyone else we don’t like by allowing the U.N. to swoop in with their black helicopters and carry off our Internet and crush our freedoms.

For those new to this performance, I debunk it (once again) below . . .

 

Needless to say, plenty of folks have emerged to debunk the U.N. Black Helicopters theory whenever it emerges. See this from 2010, this from 2012 and this most recently from Ambassador Daniel A. Sepulvada for a modest sampling. This has not stopped anti-net neutrality folks from vigorously asserting – yet again! – this time is different. This time, unlike any other time they have cried “U.N. Black Helicopter” in the last 5 years, Russia and China and other dictators will censor our Internet, destroy our freedoms, etc, You can links to a good selection of just how many anti-net neutrality folks are singing back up chorus to McDowell’s Black Helicopter Hymnal here.

 

The argument fails because – and I know this is difficult for the Black Helicopter America Most Awesomest Country God Gave The Universe EVAR to believe – the ITU does not work based on U.S. law. It sets its rules and policies based on consensus among its members. Our success at resisting the real dangers of dictatorships trying to legitimize Internet censorship through the ITU and extend their reach outside their borders comes from working with a large number of allies around the world. If we did not have the help of our allies, our internal laws on the subject would be irrelevant. We’d be outvoted and the ITU would adopt whatever policy it wanted — whether we kept broadband as a Title I service or not.

 

McDowell and the Black Helicopter Back-Up Band like to give the impression that ITU jurisdiction flows naturally from how we classify broadband. They implythat once we classify broadband as a “telecommunications service” under Title II that gives the ITU automatic jurisdiction. But that is not, in fact, how it works. The ITU sets its jurisdiction by consensus among its members and with reference to its overall charter, which includes non-Title II things like spectrum allocation. How we classify broadband service has nothing to do with whether or not the ITU decides that it has jurisdiction over various Internet policy and Internet governance questions. As noted above, the ITU does or doesn’t adopt policies relating to Internet governance based on the consensus of the member states, and our ability to prevent Russia and China from dominating that consensus lies in our diplomacy – not our legal classification of Title II.

 

 

But Maybe This Time Is Different? No. It’s Not.

 

Some may ask themselves: “O.K., McDowell has been wrong every time for the last 5 years on this, and the usual suspects echoing this have a clear anti-net neutrality agenda, but how do we know for sure they are once again crying wolf?” Consider the following:

 

  1. No one at WCIT in 2012 or the ITU Plenipotentiary Ever Makes This Argument. I was actually at the WCIT in December 2012. While I definitely found plenty of countries with an agenda favoring Internet censorship and extending ITU influence over Internet governance, no one brought up the supposed “killer argument” that since the U.S. imposes network neutrality regulations, and was actively considering reclassifying broadband as a Title II telecommunications service, the ITU should assert jurisdiction over the Internet. Despite numerous predictions in 2014 that our move to Title II would play into the hands of Russia and China, and bring “up to 30 swing states” over to the side of the bad guys, no one raised this argument at the even more important ITU Plenipotentiary in the fall of 2014.
  1. Other countries already make a more effective “hypocrisy” argument, the Edward Snowden/NSA argument. Still, the fact that no one has made this argument yet doesn’t mean they won’t make it someday – especially with a former FCC Commissioner like Robert McDowell reassuring Russia and China et al. what a killer argument it would be for them to make. But lets pretend they do accuse us of “hypocrisy” because we class broadband as Title II but don’t think the ITU should control the Internet naming and number resources in the same way as phone numbers? What happens then?

Based on experience, nothing happens. We already handed the ITU and the countries of the world a much stronger argument about our “hypocrisy” with NSA’s continued spying on broadband communications and our aggressive measures to monitor all communications world-wide. Even before the Snowden revelations, when I was at the WCIT in 2012, the most common argument against the U.S. Internet Freedom agenda was “Ha! You Americans don’t really care about Internet Freedom. You just want your American companies to continue to dominate the Internet so your CIA and NSA can spy on everyone.” Of course, I told them that was total baloney, and of course, I got played for a total chump like every other civil society representative.

Despite the ongoing U.S. hypocrisy on the subject, and the understandably furious response from civil society and many governments allied with us at the ITU to prevent countries like Russia and China from furthering their Internet agenda, we managed to negotiate the 2014 Plenipot. I’m not saying that makes our surveillance practices O.K., or that they don’t have real impacts on our ability to do business overseas and on our diplomatic standing. I am suggesting, however, that supposedly giving Russia and China another argument based on classifying broadband as “telecommunications” doesn’t actually do anything. The Russians and Chinese have had a more “killer” argument that pisses off our allies for years now. If the Snowden revelations didn’t kill us at ITU, I can’t believe reclassifying broadband as Title II would move the needle even if Russia and China start echoing Robert McDowell’s arguments.

 

  1. The EU and Canada already classify broadband as “telecommunications.” Finally, we have a real world experiment demonstrating that classifying broadband as “telecommunications” does not magically give the ITU jurisdiction over Internet policy. Many of our allies at the ITU, notably the European Union countries and Canada, have classified broadband access service as a “telecommunications service” for more than a decade. If “you classify broadband as telecom, so you have to let the ITU regulate it” were a winning argument, Russia and China et al. could have made this argument any time in the last ten years and neutralized our major allies. So why hasn’t anyone at the ITU in the last ten years thought to say “hey EU and Canada and you other U.S. allies, you already classify broadband as a ‘telecommunications service,’ so now you must agree with us and let us carry off your Internet with our black helicopters. BWAHAHAAHAHA!!!”

 

Answer: nobody makes that argument, except Robert McDowell and his back up chorus, because it’s a stupid argument. Nobody at the ITU has made this argument in the more than ten years Canada and the EU have classified broadband as a telecommunications service. Nobody at the ITU has made this argument since McDowell started bringing it up 5 years ago. Nobody made the argument at the ITU WCIT in December 2012. Nobody made this argument at the ITU Plenipot three months ago after it became common knowledge we were seriously considering classifying broadband as a Title II telecommunications service. It’s dumb.

 

As a final bit of real time proof, I will note we did classify broadband as Title II (at least we classified DSL as Title II) until 2005. During that time, we fended off a similar effort by some countries at the U.N. to assert control over broadband policy, the U.N. sponsored World Summit on Information Society (WSIS). Again, no one argued that because the U.S. classified DSL as Title II, that this gave the ITU jurisdiction over Internet governance.

 

CONCLUSION

Despite 5 years of false predictions and a wealth of evidence and debunkers explaining why what the FCC does on Title II has zero impact on what happens at the U.N., people still take this argument seriously. The Wall St. Journal runs virtually the same op ed once again, kicking off the annual revival of the McDowell Black Helicopter Band with its back up chorus of telecom lobbyists, paid consultants, and general anti-U.N. conspiracy theorists.

God knows no amount of facts or wrong predictions will ever convince McDowell, but I would hope that everyone else might eventually catch on to this song and dance.

 

Stay tuned . . . .

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