Technology and I.P.

Broadband service provider Comcast fended off the federal government's attempt to pursue a "net neutrality" policy, when a federal appeals court ruled that Comcast can limit the ability of certain types of information to be easily shared over the Internet. The New York Times reported, "The decision by the United State Court of Appeals for the District of Columbia Circuit specifically concerned the efforts of Comcast, the nation's largest cable provider, to slow down customers' access to a service called BitTorrent, which is used" to exchange files over the Internet.

Comcast caught the attention of the Federal Communications Commission (FCC) when it started throttling of BitTorrent, supposedly to ensure greater broadband capacity. The FCC issued rules forcing broadband providers to halting the practice to ensure "net neutrality," to limit discrimination against users of BitTorrent. In the case, the federal appeals court rejected the FCC's arguments (pdf) that it had authority under federal law to enforce regulation ensuring net neutrality.

"It is true the ‘Congress gave the [Commission] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications, the appeals court concluded in Comcast v. FCC. "It is also true that ‘[t]he Internet is such a technology,' indeed, ‘arguably the most important innovation in communications in a generation.' Yet notwithstanding the ‘difficult regulatory problem of rapid technological change' posed by the communications industry, ‘the allowance of wide latitude in the exercise of delegated powers is not the equivalent of untrammeled freedom to regulate activities over which the statute fails to confer ... Commission authority.'"

In a press statement S. Derek Turner, research director for Free Press, one of the public interest groups that urged the FCC to regulate Comcast's efforts to stifle BitTorrent traffic, said the decision leaves "the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing."

U.S. District Court Judge Vaughn Walker rejected arguments initially offered by both the Bush and Obama administrations, ruling that the National Security Administration's (NSA) warrantless wiretapping broke federal law. Walker determined that the program violated the 1978 Foreign Intelligence Surveillance Act (FISA) which requires warrants that the NSA failed to obtain.

Rather than mounting a legal defense of the NSA's program, the Obama administration only argued that the state-secrets privilege required the court to block the suit. Judge Walker bucked the administrations' invocations of the privilege, which he characterized as amounting to "unfettered executive-branch discretion" bearing "obvious potential for governmental abuse and overreaching." Walker's 45-page opinion made no mention of the Bush administration's argument that the NSA acted within the president's war time powers to override FISA.

Writing at Wired's "Threat Level" blog, David Kravets called the ruling "a landmark decision."

"It's the first ruling addressing how Bush's once-secret spy program was carried out against American citizens," Kravets reports. "Other cases considered the program's overall constitutionality, absent any evidence of specific eavesdropping."