Supreme Court Nominee Brett Kavanaugh Opposes Net Neutrality (arstechnica.com) 579
Beardydog writes: An article currently on Ars Technica examines comments about net neutrality issues by recent Supreme Court nominee Brett Kavanaugh. Kavanaugh not only rejects the FCC's reclassification of ISPs under Title II, but seems to also support a broad First Amendment right to "editorial control," allowing ISPs to selectively block, filter, or modify transmitted data.
Kavanaugh compares ISPs to cable TV operators, rather than phone companies. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes." Here's what Ars Technica had to say about Kavanaugh's argument, which did not address the business differences between cable TV and internet service: "Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth. At least for now, major internet providers don't offer a set package of websites -- they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to 'transmit' them, but ISPs have argued that they should be able to demand fees from websites."
The report also mentions Kavanaugh's support of NSA surveillance: "In November 2015, Kavanaugh was part of a unanimous decision when the DC Circuit denied a petition to rehear a challenge to the NSA's bulk collection of telephone metadata. Kavanaugh was the only judge to issue a written statement, which said that '[t]he Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment.' Even if this form of surveillance constituted a search, it wouldn't be an 'unreasonable' search and therefore it would be legal, Kavanaugh also wrote."
Kavanaugh compares ISPs to cable TV operators, rather than phone companies. "Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes." Here's what Ars Technica had to say about Kavanaugh's argument, which did not address the business differences between cable TV and internet service: "Cable TV providers generally have to pay programmers for the right to carry their channels, and cable TV providers have to fit all the channels they carry into a limited amount of bandwidth. At least for now, major internet providers don't offer a set package of websites -- they just route users to whichever sites the users are requesting. ISPs also don't have to pay those websites for the right to 'transmit' them, but ISPs have argued that they should be able to demand fees from websites."
The report also mentions Kavanaugh's support of NSA surveillance: "In November 2015, Kavanaugh was part of a unanimous decision when the DC Circuit denied a petition to rehear a challenge to the NSA's bulk collection of telephone metadata. Kavanaugh was the only judge to issue a written statement, which said that '[t]he Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment.' Even if this form of surveillance constituted a search, it wouldn't be an 'unreasonable' search and therefore it would be legal, Kavanaugh also wrote."
Judges, not legislators (Score:3, Insightful)
I'm not sure why this is so hard for people to understand - judges don't (and shouldn't) make the laws. They only attempt to interpret them as cases are brought before them where a violation is claimed.
Want different laws? Elect different legislators.
Re:Judges, not legislators (Score:5, Insightful)
Re: Judges, not legislators (Score:5, Insightful)
Except this guy is claiming isp's have a constitutional right to limit traffic, thus making any law that might get enacted to be void on constitutional grounds.
Re: Judges, not legislators (Score:5, Insightful)
Re: Judges, not legislators (Score:5, Insightful)
How is this any different than Facebook deciding what sort of comments they are going to allow? They claim the right to decide that 90% of religious groups are 'hate speech' and ban them constantly while managing to do very little about FBLive live streams of gang rapes and beheadings. Or Youtube's decision to de-monitize every single gun-related channel, even if that content is merely about target shooting, safety, or even proper care and cleaning; despite it being completely legal and constitutionally protected. If Facebook is legally allowed to decide, for themselves, what sort of 'dialog' they want to allow in their GroupThink project, or Youtube decides who they want to punish for not fitting into their views; What right do you have telling another company (ie ATT) what they can or cannot restrict? Maybe we need to expand the 14th amendment, that guarantees equal treatment, to more than just race and gender.
This is the paramount problem with 'Net Neutrality'. They used the word Neutrality but its total bullshit. The net result is they forced carriers to absorb the cost of companies like Netflix. It is literally another example of government setting up a billion dollar empire. They use far-fetched examples of ATT blocking access to Netflix because it competes with HBO. But all they did was allow Netflix to exploit this and reduce their operating costs and saddle that burden on the carriers. There is nothing Neutral about it. If you want real neutrality then everyone gets a bandwidth meter and they pay by the byte, just like electricity. Nobody said it had to be prohibitively expensive, just uniformly metered to every occupant. Any world where ATT is told they cannot restrict the flow of data, or block the flow of data, should apply EQUALLY to content providers of Social Media. Instead of congress telling FB they need to do a better job policing they users, maybe FB needs to say 'you tell ME which users to sanction based on a system of Due Process' to congress and claim Neutrality otherwise. After all, should it not be the courts the decide when and if someone's 1st amendment rights can and should be censored? You can't have a bias'd and untrained bunch of tech flunkies like FB deciding for themselves, without true system of legal court system appeals, who is and who is not entitled to their constitutionally protected rights. Not so long as you believe your right to bandwidth and accessing the internet is beyond the rights of those paying to maintain and provide it to you.
If you want Neutrality then you best be ready to fuck over the content providers equally as much as you fuck over those just delivering said content.
Re: Judges, not legislators (Score:5, Insightful)
Facebook is not an ISP. Sure, they can control what's on Facebook. But Verizon should not be allowed to control whether you can access Facebook. Is it really so hard to understand that distinction?
Re: Judges, not legislators (Score:4, Insightful)
blocking content is blocking content. the word Net Neutrality, and its support by the populace is that no provider (not limited to just isp) should have the right to censor or restrict access to what you want to access.
How is saying we are going to censor content on our hard drives any different than saying we are going to censor content on our switches? If Verizon decided to restrict all content related to gay rights, its a violation. But Facebook wouldn't be in violation if they did the exact same thing? The word is NET NEUTRALITY, not ISP Neutrality. Facebook is on the fucking internet isnt it? They provide content don't they? This is why the policy was thrown out in the first place. It was never applied equally and uniformly.
Such policies are always troublesome and eventually always fail. Come up with a policy that applies to every single person and corporation across the board. The same fucking law that some states passed that says a cake baker cannot refuse to make a cake for a gay couple should apply the same way to Facebook, regardless if Facebook is censoring content based on LGBT or gun rights, it shouldn't fucking matter. I have yet to see any state take FB to court for refusing to let people talk about gun rights btw, despite the exact wording of the laws requiring store owners to sell cakes to gay couples being worded in such a way that actual puts FB in violation of the same law. No pun intended but these half-baked laws are bullshit. The reason there is so much polarization in this country right now is exactly for reasons JUST LIKE THIS. We pass laws to punish those we disagree with and do nothing about those we do agree with violating the same spirit of the law. Make laws that will apply to everyone in such a way that NOBODY gets a free pass. 2 things will happen. We will make less damn laws, and people will make sure the laws they DO pass are not unjust as they will have to live by them too.
Re: Judges, not legislators (Score:4, Insightful)
Censorship and 'transmission neutrality' are still different things. Yes, theoretically, without net neutrality, your ISP could censor content (assuming the connection was not encrypted so the ISP could actually see it). But that's not what net neutrality is about. Net neutrality requires that you are free to access whatever content you want and that is available on the web. That doesn't mean you're free to post whatever you want wherever you want - or that websites are required to post any particular information. And it also means that Facebook is free to determine whether they think an article is true before allowing you to link to it on their platform. There's good and bad to that - but just because you don't like some aspect of it doesn't mean that it falls under the category of net neutrality.
Actually, I kind of hope Kavinaugh is stupid or ignorant enough not to get that distinction. Then maybe he's willing to be educated about what net neutrality actually means before he ultimately rules on it. Doubtful, of course, since he's obviously of the phony 'originalist' bent - which essentially means "decide which side of an issue business is on and tie yourself in knots to justify voting that way". The only thing 'originalist' about that is that it's a handy justification that covers a lot of cases without too much knot-tying.
Re: Judges, not legislators (Score:5, Insightful)
People think of websites as expressive media; you don't visit a website just to talk with the other users, but to communicate with the website itself (which happens to include some inputs from some other people). And Facebook does express itself. You'll see their logo, their ads, etc all over that shit. It's formatted however they want it formatted, not however your Usenet newsreader happens to format it.
People think of ISPs and phones as networks where the service is nearly invisible and non-expressive. From this point of view, only the users express themselves; the network is not expressing anything and therefore doesn't have the kinds of rights the 1st Amendment tries to protect. (Additionally, the phone network was uneconomical to build without government help, and has always been connected to government and regulated.)
People might be wrong, about one or both of these things. Or more likely "wrong," in that this is more something the decide/define, rather than discover. It's an ok thing to disagree about and debate, but I hope we all get back onto the same page before too much damage is done. (And everyone used to be on the same page, so this shouldn't be too hard.)
Some of it is historical. Websites, even "web 2.0" with its comments, are seen as their own expressive entities because they always acted like that. Similarly, phones and IP networks are seen as non-expressive carriers because people always experienced them that way. Not only do you expect your phone call to not be edited, but your great grandfather did too, and so did everyone in between! For whatever reason, putting ads in the middle of your phone call wasn't something people thought of in the 1920s. If someone had, we might have a different view of communications networks these days.
But it didn't happen, so it's very rare to hear the opinion that networks could have the right to free expression -- that network traffic is somehow speech for the person delivering it. It hasn't ever been true, has it? A message in a bottle is something the ocean is saying? The US Post is saying the things in your letters or has the right to edit them? Nobody has that interpretation of free speech. Indeed, the public even knows the words "common carrier" without having to understand everything that means. The idea is that mainstream.
Re: (Score:3)
FB is more like a newspaper which exercises editorial content and refuses to publish my letter to the editor.
ISPs are more like letter carriers who would refuse to deliver the paper.
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Ah, I see. You like net neutrality. You just think it should be charged by usage.
I'm failing to see your real argument since ISPs can charge by usage, and nothing about net neutrality changed that.
Unless they are big ISPs, he wrote (Score:4, Informative)
He wrote that you have a right to buy or sell a kid-safe internet service, or whatever kind of service you want, UNLESS the ISP in question is a major player in a particular market.
If there are one or two or three big ISPs in a city, the government has sufficient interest in regulating those more strictly than a start-up alternative. He wrote that the rules would have passed first amendment muster if they had applied to ISPs with significant market share, say 25%. "Market power", he wrote, the ability to make decisions that customers don't like, but there isn't much that customers can do about it. If customers can't easily choose a different service, then government can step in, he thought.
Under the NN rules, if you live in a city with Comcast and CenturyLink, it would be illegal for you to offer a kid-safe internet service. Kavanaugh said that went to far. The NN requirements are only justified for ISPs with market power , the monopolies and duopolies, unless the government shows some reason it should be illegal for a small company to offer a $5 educational internet plan that doesn't stream HD video.
Re: Judges, not legislators (Score:5, Insightful)
How is dragnet record requests from ISPs and telecom carriers not unreasonable?? Sorry, but I disagree with you. Stupid interpretation can be bad for the freedoms and laws we have enshrined. Because of our stupid two party system, we may not always have the right political climate to fix what was once done. The 4th would never fly if it were being proposed today. Too many blue lives / law and order types who don't see the value of privacy, and can't imagine their freedoms being taken away because "governments never persecute good Christians".
Re: (Score:3)
It might be an unreasonable search of the carrier's property, if that carrier doesn't simply cooperate when asked nicely.
If the carrier cooperates you really need the constitutional right to privacy to have much of a point of declaring even that unreasonable, the legal reasoning behind that has always been shaky to say the least.
Re: Judges, not legislators (Score:4, Insightful)
Granted.
Any records of your visits to the deposit/PO boxes however are almost certainly not covered, aka metadata, given United States v Miller 1976.
Re: Judges, not legislators (Score:5, Insightful)
Because you as the user have chosen to give away that data to the carrier...
They are not searching data you hold, they are searching data the carrier holds which you have given to them.
So it's not placing an unreasonable burden on you, as the end user.
Wether it's unreasonable for the carrier is another matter.
Re: Judges, not legislators (Score:5, Insightful)
"unreasonable burden" isn't the issue here. The question is whether you have an expectation of privacy, having given that data to a company. Personally, I expect my phone company to keep my phone records private.
Since phones are effectively required for life in the USA, you don't have a choice about giving that data, only a choice of which company you give the data to.
Re: (Score:3)
You are living in an alternate USA.
In the real USA, the government insists that all telecom companies provide that metadata on demand, without a warrant. You cannot choose a company that will not "share" that data with the government.
Re: (Score:3)
Except that most of those anti-tapping laws come from Congress as opposed to being mandated by the Fourth Amendment.
In fact, the entire premise of the Stored Communications Act is that Congress passed a law granting more protection[1] to third-party-stored data like emails than the courts had afforded it under the
Re:Judges, not legislators (Score:5, Interesting)
This is exactly what you are seeing here. A judge interpreting what the law (constitution) tries to say about a distributor (ISP). In this case, the judge appears to see the distributor of Internet content to be the one who chooses how that Internet content should appear if consumed through their network. That is a perfectly valid if not disastrously incompatible interpretation of "Internet" as is currently understood by Internet users. We tend to think of the Internet as a thing in and of itself, where this judge appears to think of it as a pool of possible things that an ISP can cherry-pick content from to serve up for you.
Note that supreme court judges are different from regular judges in how their interpretations are made and how they are applied. For one, AFAIK, they do not hear experts, they are the experts.
Re: (Score:3, Insightful)
We tend to think of the Internet as a thing in and of itself, where this judge appears to think of it as a pool of possible things that an ISP can cherry-pick content from to serve up for you.
Please find the exact clause and wording in the Constitution where it grants the government the right to tell a private company what it can and cannot distribute to customers voluntarily consuming its services. You can't, because it doesn't exist.
You see, this is one of the problems of wanting an "activist judiciary." Just because you want your ISP to work a certain way doesn't give you the right to force them to do so. The proper course of action is to vote with your wallet and take your business elsewh
Re:Judges, not legislators (Score:5, Insightful)
Certainly the constitution doesn't care about granting the government the right of telling a company what to do, that would be serious overreach. It's really just an interpretation of what it means that the constitution *doesn't* tell us how to think of the Internet.
Does that mean that the Internet is something that only exists as whatever comes out of your end of the cable when you buy a service with a local Internet provider? If so, it makes sense to think of the Internet as a product that is generated by your local ISP, and therefore, they have the full right to decide what it looks like.
But this is not how people today think of the Internet. If you ask people today what the Internet is, they imagine it as a unitary thing that is available to people world-wide, and it looks the same to all people everywhere. The Internet is a space of freedom of access, freedom of information and freedom of expression. It's extremely important to understand that this Internet of freedoms is completely incompatible with the Internet as a service idea. You cannot have a free Internet and at the same time an Internet that is a commercially-selected subset of Internet that works best in the business context of your local cable company.
An Internet-as-a-service is an Internet where the ISP is the socialist government, dictating for you, what the cyber world gets to look like. This is the consequential Kavanaugh Internet: you may think of it as an Internet born from constitutional freedoms, but an Internet born from freedoms is decidedly un-free.
Once we realize that, it's up to us to decide what we want to do. Do we want to throw our hands in the air and see what kind of Internet market forces will create for us (note: it will be different depending on what state you live in)? Or do we want an Internet that mirrors our current perception of an Internet of freedoms? If we want the latter, the only way to get an Internet of freedoms is by writing it into law. Regulation that states exactly what those freedoms are, and tells the gatekeepers that they need to provide us with at-minimum a version of Internet where those freedoms are respected.
A lot of people think it makes no sense that regulation creates freedom, and a lack of regulation creates oppression. But this is precisely how things work in the real world. You cannot be free without legislation that tells you what your freedoms are. What do you think the constitution is? It is the supreme regulation of your personal freedoms. What you need is a constitution of the Internet. This is net neutrality.
Net neutrality is the constitution of the free Internet. And it doesn't exist (and neither do your freedoms) unless we create it.
Re: (Score:3)
What do you think the constitution is? It is the supreme regulation of your personal freedoms.
The Constitution is a document that defines the structure and operation of the core elements of the government and the attached Bill of Rights is a RESTRICTION on what the government is allowed to do. The Constitution/Bill of Rights does not grant rights to anyone.
Ugh, it grants rights by virtue of what it enumerates the things the government is forbidden to do when it comes to imposing limits on people.
Re: (Score:3)
Re:Judges, not legislators (Score:5, Insightful)
Hey you, you seem frustrated. You also seem to be railing against something you clearly take issue with but wasn't in the comment you replied to.
I think you're frustrated with people hijacking the term "net neutrality" as whatever regulation is necessary to protect their own world-view. Did I get that right?
Net neutrality is not about leftist or rightist values. It is not about feminism, porn, fake news, or hate speech.
Net neutrality is nothing more than "my internet is the same internet as your internet".
The idea that the Internet is a domain of its own, and any gatekeeper that provides access to the Internet should treat it as-it-is, and not try to change what the Internet looks like to fit their personal beliefs or commercial interests. Whether that Internet has things on it that I like or dislike does not matter. What matters is that it's the same and stays the same. The ISP should be neutral, not biased. The ISP should show the picture as-is, not color it blue or red, censor it or favor it.
And here's the crux: for an ISP to treat the internet as neutral, you need regulation. If there is no regulation, every ISP will treat the Internet as biassed. Leftist ISPs will treat it leftist, rightist ISPs will treat it rightist and all ISPs will treat it in whatever way makes them more money. If you want your Internet to be the same as my Internet, your Internet speech to be unadulterated and free, you need to tell ISPs everywhere that they are not allowed to censor your speech, they are not allowed to change your Internet to look or act different.
Re: (Score:3)
We largely agree on the bigger picture. Though I personally have a little less faith in the power of market forces to keep the Internet neutral. Even if you break up the monopolies and give people choices, "firing" your ISP simply isn't all that powerful a statement as you would like it to be.
I'm all for sending my ISP a message if I hate what he's doing, and if taking my money elsewhere hurts him as much as you say it would, that would be awesome, but I simply don't think that it does. And that's mainly
Re:Judges, not legislators (Score:5, Insightful)
The proper course of action is to vote with your wallet and take your business elsewhere. Don't act like you can't; it's a rare case these days where you have no choice of ISP's.
While most of your post is just deranged gibbering, this is actually an outright lie. The vast majority of US homes do not have a choice of ISPs. Of course, it's no surprise that someone whose sig contains whining about "offended feelings" has no interest in facts or reality.
Re:Judges, not legislators (Score:5, Insightful)
Here is a study (skip to page 11) [ei.com] that estimates that over 50% of US households have 2 or more choices for 25mbps+ landline service.
Typical Republican mindset: "I've got mine, too damn bad if you didn't get yours."
Selfish people with no empathy are ruining this country. Nobody should have to move just to have a choice of broadband provider. Certainly not half of the country.
Re: Judges, not legislators (Score:5, Informative)
Another Anonymous Coward incredulously demanded:
50%?!? You are telling me it is too difficult and not enough to go around to provide more than 1 out of every 2 individuals a second ISP... in the US?!?
Actually, that's pretty much exactly the case. There are still a fair number of U.S. residents who live out in the boonies, where the cost-per-mile for pole space is high and the customer density is low.
At some point, it doesn't pencil out, so you take advantage of government handouts and subsidies to expand your network and then pocket the money and stop building out your network, and folks who live beyond the edge are reduced to crap like satellite internet or cellular data for broadband.
FTFY
Re:Judges, not legislators (Score:5, Insightful)
We tend to think of the Internet as a thing in and of itself, where this judge appears to think of it as a pool of possible things that an ISP can cherry-pick content from to serve up for you.
Please find the exact clause and wording in the Constitution where it grants the government the right to tell a private company what it can and cannot distribute to customers voluntarily consuming its services.
If ISPs are common carriers then Title II applies and network neutrality is valid based on existing law. The internet, at its heart is take a packet from arbitrary source to arbitrary definition. That sounds like a common carrier to me. Title II has been around since 1964.
Ultimately it would be nice if the congress people would do their fucking jobs and officially classify it as title II so there is no room for interpretation, but they have not, since they foolishly believe that trusting corporations to do the right thing if we just give them unfettered power works. It doesn't.
Also ISPs have a ton of benefit from public easements and infrastructure to build their crap. That changes the game considerably. You can't blatantly use a public resource purely for enrichment with no consideration for the public good. This also isn't a chance where free market fairy dust fixes everything. A lot of places only have one hard line isp, and many still have none. Here is a link showing it. link [desmoinesregister.com].
An estimated 34.4 million people don't have access to broadband in America.
The interesting thing is conservatives tend to have flexible ethics. He says he is a strict follower of the law, but it takes a tortured interpretation to have our packet delivery network to not be a common carrier.
Now you could argue that if they ban net neutrality and such and ISPs run amuck making the internet their private toll roads, well maybe it will no longer be a common carrier, but that would be no different than saying only Walmart can use semi trucks on the highway. The original intent of the internet was as a common carrier. Interpretation of statutes should be based on that original intent, and not the intent of people wanting to make even more money by setting up more toll booths.
Re:Judges, not legislators (Score:5, Interesting)
Please find the exact clause and wording in the Constitution where it grants the government the right to tell a private company what it can and cannot distribute to customers voluntarily consuming its services. You can't, because it doesn't exist.
It's right after the line that says corporate entities are people and have the same rights. And that great clause about money being speech.
ISPs have near monopoly status and receive taxpayer subsidies for a service considered as essential as electric and telephone. You, and this judge, have some psychotic view of corporate personhood where they can still remain exempt from additional regulations that other companies don't have to abide by, and that's bullshit. This has nothing to do with the Constitution.
And take your business elsewhere to who ffs? You think the local cable/DSL duopoly is competition? That LTE counts? That a 3rd provider is actually widespread? There is effectively no competition and you're either shockingly ignorant for a Slashdot poster, or more likely as is typically the case among conservatives who aren't otherwise fools, flagrantly intellectually dishonest.
Re:Judges, not legislators (Score:4, Insightful)
Re:Judges, not legislators (Score:5, Insightful)
Re: Judges, not legislators (Score:3, Insightful)
Disputes between states are settled in Federal courts; that's actually in the Constitution. The Constitution also states that the federal government is responsible for Common Defense. From the hyperbole you justed spewed, it's clear that not only have you never actually read the Constitution, but your entire scope of knowledge regarding the documents is flat-out wrong.
Re:Judges, not legislators (Score:5, Insightful)
This is quite silly. The Constitution undoubtedly gives Congress the right to regulate ISPs that are engaging in interstate commerce. Congress could pass a law mandating Net Neutrality and directing an appropriate agency (likely the FCC) to draft rules to enforce it. Congress could also pass a law specifically saying that no agency has the authority to create such a rule.
Guess what. Congress did fucking neither. That's all we needed, a simple up or down from the one body that has final goddamned authority. Instead, they remained silent and so we have to parse the content of laws from previous decades instead of having a clear and concise national policy from a legislative body that's suppose to make policy.
The anger at judges and lawyers and agencies is valid but misplaced. The one body that could resolve the issue has gone out to lunch.
Re: (Score:2)
How about you go read the Federalist Papers (and even the Anti-Federalist Papers) about what the people who actually wrote the Constitution had to say about the power of the Judiciary?
The Founders absolutely intended for Judges to have the power to say whether laws themselves are legal.
Re:Judges, not legislators (Score:4, Interesting)
I hate the term "judicial activism" and "legislating from the bench" as that more often than not can simply mean "I don't agree with the opinion".
Just because a right was not spelled out in the Bill of Rights does not mean it does not exist. Do I have the right to hop on one foot? It's not in the Bill of Rights so I guess not. But wait, I believe it is there...
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Where is my right to hop on one foot? It's there because the federal government was never empowered to prevent me from doing so. Where's my right to privacy? I have the right to privacy because if the government follows the Bill of Rights my right to privacy is preserved. Nearly every sentence in the Bill of Rights preserves some aspect or another of my right to privacy. The Constitution assumes I have some right to privacy, it's there from the government being prevented from quartering troops in my home, to not disarming me, to needing a warrant to look through my pockets.
What rights did the courts "invent"? People seem to forget that the federal government is a construct of the states, and therefore is subordinate to the states. Somehow and at some time we lost "These United States" and became "The United States". The states used to be sovereign nations under a mutually beneficial federation to administrative regions of a national government. What I've been seeing is not the courts creating rights for the people but instead the courts creating powers for the federal government.
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The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
In other words, it doesn't have to be in the constitution to exist. It's pretty fucking clear, based on the writings of the founders and the other amendments, that this was a right that was assumed to exist at a level so fundamental that the founders didn't even bother to write it in.
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For example, the 4th guarantees the right to privacy of one's papers and domain. The 1st has freedom of assembly, which requires a certain amount of privacy to exist.
He likes the color blue, too (Score:2, Insightful)
I hate the color blue! If he can't prefer the color green over blue he shouldn't be be a justice!
Because it really doesn't MATTER on topics which don't really APPLY the the supreme court. Get your congress-critters two write law well and it'll survive any decision from SCOTUS.
Re: (Score:3, Insightful)
Because it really doesn't MATTER on topics which don't really APPLY the the supreme court. Get your congress-critters two write law well and it'll survive any decision from SCOTUS.
Well, it sort of does matter. Here you have a SCOTUS Justice nominee who arguably has an established agenda. He believes that POTUS (any) should be immune from criminal investigation, yet he was on the team investigating Clinton during the Lewinsky affair. He spent five years working for the directly for the Bush administration And now, with RvW back, you have now a justice who, along with the rest of the Court, will effectively make the law of the land by overturning a previous SCOTUS ruling.
Which isn't
Re:Fake Post (Score:4, Insightful)
Re:Fake Post (Score:5, Insightful)
If Nixon was protected from criminal investigation, and if United States v. Nixon [wikipedia.org] wasn't a unanimous ruling against Nixon's demands for unrestricted Presidential immunity from the judicial process but instead went the other way as Kavanaugh would prefer, then Nixon would have been in a far safer position to defend against his removal.
If a president is immune from investigation and scrutiny, then it is far more difficult for anyone to contain a criminal president, impeachment is an impotent check if must be carried out in the dark. And well, if what you really want is an unconstrained criminal president (such as Nixon was at his very worst), then I have no patience for you.
Um... Net Neutrality is a matter of law (Score:3)
But even if it wasn't a matter of law if shows his character and belief system; specifically that he sides with corporations over people.
Bad Argument (Score:4, Informative)
Most definitely not true in the case of the US supreme court, which is wildly corrupt, making interpretation of law based upon what they believed,
That was partly true with Kennedy as a swing vote.
Your argument falls apart completely with Kavanaugh who is a real stickler when it comes to judging based on what the law says. He has sided for and against the government in many cases where each time he was making a ruling based on law, now on what he might "believe".
Between Gorsuch and Kavanaugh it really is the case that the laws that are written will matter and not just be tossed aside at the drop of a hat because an SC justice has the feels.
You need to eat yourself (Score:5, Interesting)
Certainly SCOTUS needs to look at the words on the page, not what they think SHOULD have been in Constitution.
That said, the following exchange just happened at my house:
Person1: You need to eat.
Person2: You need to yourself.
What would an appropriate response be? "You need to eat yourself" could have two meanings, but we know what the person meant when they said it. The intended meaning guides our interpretation.
When we read the newspaper headline "Children make nutritious snacks", we know the author means children are cooking, not that they are snacks. We interpret it bases on what the writer meant.
Unfortunately, the authors of the Constitution occasionally uses words that mean something different today than they did 200 years ago, words that aren't 100 crystal clear, and in at least one case, words that seem to contradict each other. What meaning should be ascribed to those words? Fortunately, the founders also wrote hundreds of pages telling us exactly what they meant by those words, and why they said what they said. It seems clear to me that is something to consider to selecting which meaning to use - the meaning the writer intended.
the real problem (Score:5, Informative)
Re:the real problem (Score:5, Insightful)
This is what happens when you keep big business out of government and you have a government by the people for the people.
You guys should try democracy.
https://en.wikipedia.org/wiki/... [wikipedia.org]
Re: (Score:3, Insightful)
First of all, area does not grow exponentially (hint: square meter). Secondly, even in high density population area, the US providers are not delivering fast and cheap services.
Thirdly, Australia have got not a so high percentage of rural population. Population is concentrated on the coasts.
If you are not able to see there is a problem, you won't solve it.
Re:the real problem (Score:5, Insightful)
That's what Judge Kavanaugh said (Score:5, Informative)
That's along the lines of what Judge Kavanaugh said in his dissent. He wrote that the rules would have been okay if the applied to ISPs with significant market share in a particular area. The government has a legitimate interest in regulating a monopoly or duopoly or monopoly, sufficient to override the rights of businesses and customers to decide they want a "kid friendly" Internet service or whatever. As written, the rules applied to ALL ISPs, no matter what market power they had, so it was illegal to operate a kid friendly service. Fixing that would have saved the Net Neutrality rules from a 1st amendment challenge, he thought.
The other issue he pointed out is that Congress, who has the sole power to write laws, gave the FCC authority to implement a specific law covering the phone company. The FCC was to handle the details of enforcing the law that Congress wrote. Nowhere did Congress give the FCC authority to unilaterally create net neutrality.
According to Kavanaugh, here's how the Constitution provides for laws, including those related to net neutrality, to be passed:
Congress passes a law saying which principles of net neutrality should be legally required.
Congress identifies which agency they are empowering to enforce that law (FTC? FCC?).
Laws and regulations balance your rights with government interests. More burdensome regulations can be applied to ISPs with over 25% of given market or whatever.
This balances your first amendment right to provide a low-cost service designed for text rather than video, or a kid-safe service, or whatever with the government's interest in regulating businesses that aren't effectively regulated by the free market.
So, is anyone going to change how they vote? (Score:5, Interesting)
Trump opposed Net Neutrality, supports TPP, has rolled back none of Obama's executive orders on H1-B visas (he could have stopped spouses from working in this country with the stroke of a pen on day 1). He let Carrier and Harley Davidson get away with sending jobs overseas after they both got fat checks from the government for keeping them here. He's cut back the VA and is attacking pre-existing condition coverage (again,
His administration did just allow 3D printed guns. I'll give you that.
I guess what I'm saying is, I get it, he's not Hilary. But Hilary's gone, and Trump's poll numbers don't budge. I know Trump supporters are out there on this forum. I also know they mostly keep to themselves on political issue. But if any are out there willing to raise their voices I want to ask: what, if anything, will make you stop supporting him?
Re: (Score:2)
/. has a lot of older folks on it, many of them have done quite well for themselves and many are right wing. Many voted for Trump (few seem to want to admit it).
Then how do you know that many voted for Trump? ESP?
Because there's a lot of right wing people on /. (Score:3)
Re:So, is anyone going to change how they vote? (Score:5, Insightful)
>"But if any are out there willing to raise their voices I want to ask: what, if anything, will make you stop supporting him?"
I think you are asking the wrong question. A better question might be "At what point will the nation seriously consider a new voting system, like ranked choice, that will make it possible for better candidates to gain traction and other parties to actually compete fairly?" Otherwise, we will continue to pretend that the current D and the current R are the only valid and rational choices. Most voting now is near meaningless because of where one geographically lives, and/or single-issue polarization, and/or voting for the "least worst", and/or horrible candidates on the only two tickets than can win because of the "first past the post" system we still use. The political spectrum is not, and should not, be a two point location on a single line that attempts to describe everything.
Since voting methods are controlled by the States (and hasn't yet been unconstitutionally taken over by the Fed, like so much already), meaningful voting method change actually COULD happen (which is the major reason for the 10th Amendment). It is making inroads in local governments all over the country and starting to pick up interest at State levels. It would have a huge positive impact in party primaries, too (regardless of which party). It doesn't matter what party you support or what your political positions are, IRV/AV/RC is good for EVERYONE.
http://fairvote.org/ [fairvote.org]
Re: (Score:2)
I guess it depends on what you mean by 'support' him. I didn't vote for him, I don't own any Trump hats or anything, I wish somebody would close his Twitter account. But I'm also not in the camp of instantly opposing everything he does solely because he did it. For better or for worse, he's our (I'm an American) president, so I "support" him just like I supported all prior presidents. I thought the Republicans acted like idiot children towards Obama and the Democrats so far have shown they are no better wit
Actually the Dems vote with Trump quite a bit (Score:2)
I should add (Score:5, Insightful)
I've got other family members with medical conditions that will be screwed in the pre-existing coverage protections go away. Trump's allowing a lawsuit against those protections to go unchallenged. And I'm 40, so I've got my own problems too....
I'm not anti-Trump because he says mean things. We could do with less civility in this country. I'm so fucking tired of people stabbing me in the gut, twisting the knife and people telling me it's OK because the guy with the knife is _smilling_ while he kills me and mine...
Re:I should add (Score:4, Funny)
I hope you and your friend and your family die from your and their pre-existing conditions when they lose their health care. Fuck off and die.
See how "less civility" works? Is that really what you think you want?
Re: (Score:3, Insightful)
Prices go up, and always have, on insurance... BUT, they went up slower with the ACA than before. https://www.factcheck.org/2015... [factcheck.org]
The average employer-sponsored family premium has gone up by $4,154 under Obama, from 2008, before he took office, to 2014, according to the Kaiser Family Foundation’s annual employer survey conducted with the Health Research & Educational Trust. The catch? That’s relatively slow growth for premiums. The RNC may cast it as bad news, but it’s an improvement compared with the growth in premiums before Obama took office.
The ACA also required some basic diagnostics to be done without cost to the consumer. That would be an expansion of service, not a shrinking.
Hospitals weren;t forced to close under the ACA, nor did it cause them to close. What did cause some to close was Republican lead states refusing to adopt the ACA, thereby shorting hospitals (and doctor
Re:I should add (Score:5, Interesting)
The Trump Administration's intentional acts to undermine Obamacare [reuters.com] are responsible for skyrocketing costs and a massive shrinking of services.
Fixed it for you.
Re:I should add (Score:5, Interesting)
Bullshit. Health care costs were skyrocketing before this law passed, with widespread denial of care to anyone with a pre-existing condition. A full-on repeal will just return us to the even worse system that we had before the Obama and the Dems gave us the current horrible system.
Re: (Score:3)
Until America wises up to the concept of healthcare as a basic human right, I don't see this ever getting properly fixed.
I don't think ANYONE is debating whether or not healthcare is a basic human right; what is being debated is how much that healthcare should cost. If you have no insurance, then break your leg, should you be able to buy insurance after the fact to cover at 100% all costs of your broken leg? Or do you bear any responsibility to at least carry some insurance up-front - and if you choose not to carry, should you bear the burden of financial harm because you chose to forgo insurance?
Re:I should add (Score:5, Insightful)
Countries that consider healthcare to be a human right pay for it from taxation. It's exactly the same with other human rights like food and shelter.
The moment that you start demanding people pay for their healthcare it ceases to be a human right, because even if they can afford it there is a disincentive, often a strong disincentive, to exercise that right. The humane thing to do is treat them, and if they recover they can pay their taxes like everyone else.
Re: (Score:3)
Sure. But again, though, issues like Dodd-Frank legislation have considerable nuance (it had over 2000 pages, haha), so it's a bit of a stretch to judge someone good or bad on their high level reaction to it (e.g. person X is in favor of it, therefore person X is good, person Y is against it, so Y is bad, and so on).
I mean, speaking of that law specifically, it had some pretty onerous stuff but it seemed like a good idea since it would fix the "too big to fail" institutions, which at best it has only partia
Re: (Score:2)
"I get it, he's not Hilary. But Hilary's gone, and Trump's poll numbers don't budge."
Is Hillary Clinton secretly planning to run in 2020? [nypost.com]
So in 2020 everyone may get a do over. Only time will tell for sure.
Just my 2 cents
A real pro (Score:2)
Re: (Score:2)
Kavanaugh compares ISPs to cable TV operators, rather than phone companies.
Does anybody remember the argument against the Comcast/Time-Warner merger back in 2014? The idea that combining the ISP with the content creators was going to lead to bad things. Welcome to that reality.
Re: (Score:3)
It's your naive interpretation of things. That's how the cable company wants us to think of the internet but it's a 2 way communication medium and that's the major difference.
They could have had the information revolution a decade earlier along with all the massive profits that came with it but instead they chased short term profits at the expense of themselves and consumers.
Total non argument if that's really how you feel I hear they'll give you a few more channels if you drop the internet. So do it now
Headline could read... (Score:4, Insightful)
The headline could instead read "Supreme Court nominee supports broad interpretation of First Amendment rights, non-interference in the private sector" and nobody would be upset about it and it would be an equally true headline. It's all in the phrasing. So a conservative-leaning judge supports free markets and broad application of the First Amendment. This surprises people...why, exactly?
Re: (Score:2)
A broad interpretation of first amendment rights would not support the allowance of individuals or corporations to block free speech which is what this does. It is as if someone has allowed the activation of a device in the public square to selectively block the transmission of sound from whoever hasn't paid the price to talk or whose agendas are not favored by those in control of the medium.
For the right of free speech to remain effective, it must be carried forward into the new medium that carries the maj
Re: (Score:2)
Does the 1st amendment cut both ways? (Score:5, Insightful)
If the reason for saying net neutrality is unconstitutional is the ISPs' first amendment right to make editorial decisions on what they carry, does that mean that they can also be sued or prosecuted over illegal content that they carry?
1787 (Score:3, Interesting)
As a non-American I find it odd to observe from a distance the esteem that a document written in 1787 is held.
Few other concepts from that era are held in unquestioning reverence by as many people. Horses and buggies? Leeches for tonsillitis? Nope we've moved on.
But suggest that a document in 1787 might require a bit of interpretation as society has moved on a bit since then? Somehow this is an unthinkable affront to the framers of said document.
My own country holds our founders in a bit less regard. John A McDonald? Any decent highschooler will tell you he was an alcoholic, racist, womanizer and all around asshole. Why highschooler? Because we learn it in school. Canadians tend not to place our leaders in amber and preserve them forever more. We don't dietize them. We recognize their faults and virtues in equal measure.
Sometimes we do it to excess, but it might be worth thinking about. I'm reasonably sure the framers when they held it as self-evident that all men were created equal, they didn't intend to be placed on a pedestal for all time, nor I think would a person who truly believes that sentiment expect their words to be enshrined in amber, never to be looked at with a critical gaze?
Might it be time for a V2 rewrite as opposed to another patch release? Just a thought.
It's not esteem (Score:5, Interesting)
And we've got good reason to be afraid. I know the Koch brothers were trying to take over the state legislatures so they could call a Constitutional convention. They fell just short of the votes to do it too (they lost a few special elections due to some really, really bad candidates. Like literal Nazi grade bad). I can't imagine they had anything good in store if they had been able to call a convention.
Keep in mind that as a country we can't even get everybody to agree that everyone deserves healthcare. We're kind of at each other's throats over here....
Re: (Score:2, Interesting)
Our problem is that our memory is too short. We need to remember back to the roots of the good times.
We were in deep trouble and then the new deal and WWII brought about one of the biggest booms in our history for the middle class lasting from WWII into the 70s. The portion of our country in the lowest levels was steadily shrinking throughout those times. Opportunity abounded mostly because of the social reforms that occurred - powered by the massive gains in productivity amongst women and minorities that h
USA Costitution vs UK Anarchy (Score:3)
The USA reverence for the constitution is interesting, as is its ineffectiveness. It sounds like a great idea, to deliberately constrain governments to ensure freedom from future despots. And maybe it has made the USA a much better place than it would be otherwise.
But the comparison with the UK is stark. The UK abolished slavery 60 years before the USA. There is nothing like Civil Forfeiture in the UK (or any other civilized place). No need for a civil rights movement. UK police are embarrassed when t
Re: (Score:2)
Which piece, exactly, do you feel is in need of a re-write? What general form would you like to see the modification take? No cop outs here - the 27th amendment was finally pushed through by a 19-year old sophmore college student (who was pissed that he got a C for saying that the amendment could be passed). If you think you've got
Re: (Score:2)
As a non-American I find it odd to observe from a distance the esteem that a document written in 1787 is held.
Few other concepts from that era are held in unquestioning reverence by as many people. Horses and buggies? Leeches for tonsillitis? Nope we've moved on.
This statement ignores most major world religions, whose sacred texts predate 1787 by thousands of years. But, this is Slashdot, so let's sidestep the Bible, the Koran, the To'rah, and the Bhagavad Gita. The Kama Sutra goes back a cool millenium and a half, while admittedly not a single volume, Newtonian physics is still actively taught in high schools and colleges, as is Pythagorean theorem and all kinds of mathematical principles which long predate the US Constitution.
But suggest that a document in 1787 might require a bit of interpretation as society has moved on a bit since then? Somehow this is an unthinkable affront to the framers of said document.
The framers wrote *in the Constitutio
Good news (Score:2)
No waiting for federal NN rules to give everyone a new federal network.
Minnesota law review (Score:5, Informative)
This seems like it is at the central concern for why Trump chose Kavanaugh in particular, and they haven't denied that they considered Kavanaugh's opinion that the President should be protected from legal inquiry of various kinds. The policy issues around him, including net neutrality, may serve to polarize opinion and political support and opposition, but this seems to be a major overriding issue beyond those given the reality that Trump is the subject of a federal criminal investigation by the special prosecutor, and the questions as to his powers to resist or even eliminate the probe are ripening.
For example, the question as to whether Trump can refuse to answer a subpoena have been regularly raised, including by his own lawyers, which seemed like they would be settled law given that Nixon was forced to relinquish his incriminating tapes under a subpoena. However, a different SCOTUS could overturn such precedent if they so fancy, they have done so before (including recently) despite the invocation of principles such as stare decisis. This is also why the reply that this law review article is advocating congressional action to protect the president is not as convincing as it may seem, since it taking the standpoint of what should be done in response to the law as it existed. When in the position of a justice of the supreme court with a little bit of the so called "judicial activism", the law could be revised if Kavanaugh could find enough like minded fellows to go along with him.
Or more likely, they could make precedent in the unexplored and unsettled areas of law that have a maximalist view of presidential powers, which seems likely given Kavanaugh's background. Ironic given Kavanaugh's role in the Starr investigation and report that led to the impeachment of Bill Clinton.
They're not retarded or clueless (Score:5, Insightful)
Re:You misspelled "politicians" (Score:4, Informative)
case in point
PigHogger said:
We all know that Republicans are totally retarded and clueless when it comes to technology
SuperKendall replied:
If you want to look at mastery of using Technology anyone would have to admit Trump comes out vastly on top
That pretty much proves the OP's point. You, an avowed republican, seem to believe that number of likes/followers on twitter somehow equates to understanding tech.
Why are you looking at meaningless metrics? (Score:3)
I would just like to take this time to point out that, Obama has twice as many followers on Twitter as Trump does.
Neither of you seem to understand. It's not the size of your follower count, it's how you use it.
It's easy to see how Obama got way more followers, since basically he's the head of a cult of personality - not any different than any big Hollywood star.
But Trump - it doesn't matter how many followers Trump has, because lots of stuff Trump tweets is widely repeated (including the press) and way mo
Re: (Score:2)
They don't need to modify the websites to track you, all requests and responses to these websites are already traversing their infrastructure and can easily be tracked passively.
Re: (Score:2)
That's a naive view of how the internet works. Also you misspelled whether earlier.
If they can inject content into the websites you visit they could conceivably view every single form you post and record the content of the sites you view. If they monitor the connections you make they often can only see that you visited popular sites, hosting providers. and downloaded content from popular CDNs. Not to mention if they did this they would ruin your browsing security, they never had much desire to do it befo
Re:Simple trade offs (Score:5, Insightful)
+ firm supporter of the 2nd amendment, without which all other amendments become moot
-1: Naive idiot.
Information is power.
Small arms are *not* power.
Re: (Score:3)
Small arms are *not* power.
That is demonstrably false. If small arms granted no power then police officers would not carry them. If small arms granted no power then governments would not take them from their subjects.
Let's assume what you say is true, that small arms in the hands of citizens do not prevent a tyranny from abusing the population. What that means is a free people would have access to "large arms" (or whatever the term is for things that are bigger than small arms). I hear this all the time, the government could wipe
Re: (Score:2)
Information has little value when a boot is crushing your skull..........
I'm not talking about you using information. I'm talking about the information the government has on you. That's the real power in this world, and that's what this judge seems to think should be almost unlimited.
With today's environment of mass surveillance, no rag-tag band of rifle-toting "patriots" is even going to get near critical mass before their communications are intercepted, and they're rounded up one-by-one and neutralized. In the mean time, certain leaders manipulate these people and keep them mo
Re: (Score:3)
Re: (Score:2)
He didn't say that. He said something about respecting the original text, and history. Just about every other judge has issued decisions that are not supported by the literal text of the Constitution -- some the most glaring examples being the addition of the word "affects" into the Interstate Commerce Clause, or the "National Security exception", or the "Good Faith ex
On the whole second amendment thing (Score:5, Interesting)
Sorry, I know it's off topic, but it seems a silly thing to hang everything on. Even a well armed citizenry is no match for a modern military. Hell, it's been like that for centuries. The only reason America won it's revolution is the British were too busy with the French and the French were actively helping us to oppose Britain. Heck, we got beat by the Canadian army for Pete's sake...
Also, are you really sure he's going to defer to the authors of the Constitution and not his corporate buddies? Don't forget the media feeding you all this information is owned lock stock and barrel by mega corps who would very much like you to think that.
Re: (Score:3)
We pounded Afghanistan & Iraq into submission (Score:4, Insightful)
See, all it takes is a willingness to use brutality. If you're at the point where you're taking up arms against your own country then I guarantee you that your country is ready, willing and able to use that same brutality against you. Remember, we managed to make torture^XEnhanced Interrogation OK again. If we can do that we can do anything to you and your ragtag band of rebels. This isn't Star Wars, this is reality. And reality is not nice.
Re: (Score:2)
Watch the Ken Burns documentary on the Vietnam war. It doesn't support your contention that the USA lost because it was restrained in its action. By the time the press started reporting on what was really taking place, the war was already lost. It's just that it was politically impossible to acknowledge the loss until later.
Re: (Score:2)
Re: (Score:3)
Wait, what??
If I wanted to start an ISP that blocked any website that starts with the letter S, why should anyone have the right to tell me I can't do that? (this is not a rhetorical question - I'd really like to hear your answer)
Re: (Score:2)
I don't have a deep understanding about this, but doesn't it come down to the protections afforded to carriers that they aren't held responsible for the traffic they carry?
IOW, if you want the privilege of protection from carrying illegal content, e.g. child pron, you have to have a "hands off" approach to the traffic. Once you start examining that traffic to decide whether to carry it or not, you assume some of the responsibility for that content.
Don't the big ISPs want that protection but *still* be able
Re: (Score:2)
Great question, but I think that is actually a slightly different point (see below). The post I replied to suggested that ISP's should never be allowed to censor (which is false) and then from there extrapolated that the SCOTUS nominee is completely unsuitable (which is silly).
As far as protections afforded to carriers, ISPs don't have to be the police and do much, if anything, proactively (they have to respond to DMCA requests, help the cops bust child porn distributors, etc. - but it's almost always react
Re:Anti-First Amendment (Score:4, Interesting)
the government doesn't really have legal justification it can use to tell a private company that it can't censor traffic on its own network.
The government has the legal justification to tell a private company that it can't censor traffic on its network because its network is not private. It is utterly dependent on public rights of way, it is at least nominally available to each and every member of the general public (unless they don't feel like servicing your area, despite getting massive tax breaks for 27 years to do so), and it is fundamentally a public utility because of the physical and financial realities of how it is deployed.
Your original statement that "ISPs should ALWAYS have the right to censor traffic" is wrong.
Until AT&T pays the $400 billion in back taxes [newnetworks.com] they owe for failing to live up to their part of the National Infrastructure Initiative bargain, until I can charge AT&T for every inch of their lines that cross my property for every month they're there, AT&T's network is not private enough to claim exemption from regulation that would prevent them from breaking the fucking Internet.
The Internet as it existed, with de facto neutrality, because ISPs had not yet had the nerve to try to break it for profit, is so valuable, to the tune of $500 billion annually to the US economy, that it must be protected as a public good. If you really believe their nominal status as private entities makes them immune from regulation, then I will advocate for seizing their assets and nationalizing every last one of them, forcibly removing every ISP from the media conglomerate into which it has been sucked. It's that important that they not be allowed to break it. For more money.