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Comment by Wowfunhappy | Hacker News Reader

> Mendez reportedly was not swayed by ISPs' claims that a net neutrality law isn't necessary because they haven't been blocking or throttling Internet traffic.

What? Is that an actual legal argument? "You can't pass a law unless people are actively breaking it" doesn't make any sense.

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Such an excuse was good enough for Chief Justice Roberts' to dismantle VRA Section 5.

>...throwing away your umbrella in a rainstorm because you are not getting wet.

To the extent the importance of a governmental interest is to the validity of a law (basically, any time it is required to pass more than rational basis test review because of either the rights impinged or the axes on which it discriminates), “the behavior it seeks to prevent does not exist” is a component of a useful argument (you really want to be able to finish with “and is unlikely to exist in the future in the absence of the law”, as well.)

But in this context here, we aren't really talking about the validity of the law but about an injunction while the law is being challenged. Where, actually, that argument seems to cut against ISPs, since an injunction generally requires a showing of irreparable harm to the other party if the injunction is not granted; “we aren't doing what the law would prevent and have no intention of doing so” is exactly an argument that you have no need for an injunction.

To be fair, I can see at least some sense in it. Specifically, it seems like almost every law of any complexity has unintended consequences. In general, those consequences are negative. Having an extra law on the books means one more thing that can go wrong. As such, creating a law that has no actual benefit (nobody will break) has a fair chance to have a negative impact on society.

Conceptually, it's not unlike adding the hardware to a car for a feature nobody will use. It's something that can break, for no benefit.

All that being said, I do not agree the law would be useless because I assume the ISPs will do everything in their power to make money at the expense of the well being of everyone else.

To the extent that is true, it is because congresscritters and politicians have no incentive to monitor laws until something visibly bad happens.

Also, we have absolutely shoddy education in the humanities. Economics, psychology, world history, etc, are 'useless' until you're reminded that we have to deal with human beings doing what they do.

Anyway, I don't see why ISPs would not break net neutrality laws especially if they can nickel and dime people even more.

It is a not-completely-frivolous argument in this procedural context, you could say. This is not the final determination in the case; it is just a question about whether the law can be enforced right now, while the case is pending. If the ISPs could show e.g. that there was significant harm to them and no harm to CA in temporarily barring enforcement of the law, then the judge might be obligated to rule in their favor. It’s more complicated than this, but this is the general idea anyway.

It’s still a BS argument, to be clear, and good that the judge rejected it...

The ISPs showing that there was significant harm would contradict the claim that they were already following the rules without being forced.

Makes no sense at all.

Even further, if you're not doing anything that would break the new law then why the need to oppose it?

Because duplicity is an ethical norm for the entire Legal sector.

I tend to default to believing bad faith from the ISPs given their monopolistic power in many many places around the US. However, I disagree with this argument in a broad sense because:

1. Law enforcement itself has costs.

2. The US has so many random laws and the power given to the president and AG to selectively enforce said laws that it translates to "Whoever is in power at the executive level gets to attack whoever they want at their convenience".

3. I see a very clear line between this argument and "If you don't have anything to hide, why do you need privacy?" argument.

The conclusion of your first two points is to get rid of laws, not stop making new ones. I have no idea where you're going with your third point.

Edit: I hope that didn't come across as aggressive. I am genuinely curious about what you were demonstrating with your third point.

I took the conclusion of his/her first two points to be, "think carefully whether cost outweighs benefit when making new laws or keeping old laws," not "get rid of all the laws! anarchy!"

I can understand that. I think, if you think carefully, this is 100% necessary. I was talking to the other commenter, but telecoms, and really capitalistic businesses as a whole, have demonstrated the will disregard morality in the name of an extra buck. (They'll also disregard laws for the same reason but at least we can pretend to do something about it.)

I think the point of the first two laws isn't just "get rid of laws" but rather, only create and keep around laws that serve an immediate purpose. Essentially in opposition to the make a law because it might solve a problem later on.

I agree with enforcing this laws against ISPs now as I think internet connectivity and accessibility protections are problems that need solved now.

I think their third point is likely just pointing out that many of the users of this site are probably opposed to the "If you don't have anything to hide then why do you need privacy argument", yet are taking what the author sees as a similar argument against the ISPs. It could be viewed as hypocritical and indicates that there needs to be more argument for why someone would want these enforced ASAP other than "If you aren't doing anything bad now then why do you want to block the law".

That is a good point on the first part. What I was trying to demonstrate with my point and only recently was able to put into words is that not making new laws doesn't solve the problem they were worried about. I would also say history has shown that unchecked power leads to abuse and that only solving problems in time has led to terrible outcomes.

Towards your point on their third argument, the arguments aren't similar. You don't want to keep only illegal things private. You can have a bank account, but I would expect you wouldn't want to share your account number with just anyone. The argument is disingenuous because everyone does have something to hide.

Going to the latter portion of your third point, regarding the timeliness of your "bad" behavior, that sounds like a terrible way to come up with rules. I wouldn't wait for the first murder to decide that maybe people killing each other isn't the best way for society to function. Of course, I do have hindsight of history to aid me in this, but if that is what is required, I would point you towards my first point about unchecked power. Depending on the specificity your argument requires, I think it applies. I think this also applies a little bit to your first argument around keeping around only immediately purposeful laws.

I think the real solution is to only keep around sensible laws and eliminate those that aren't. And I would say in this argument, these laws do serve an immediate purpose as these telecoms have demonstrated time and time again that they are willing to abuse their customers in ways that are totally legal.

Even assuming they don't plan to engage in the kind of conduct that the law was intended to stop, they could still be adversely impacted by the law as written. For example, consider a peering dispute which leads to the connection between two networks becoming overloaded. A resolution where one party paid to fix the issue could be interpreted as paying for prioritization.

No, it's not an effective legal argument.

To get an injunction, the claimant (ISPs in this case) would need to show a likelihood of success on the merits _and_ irreparable harm during the pendency of the lawsuit. If the ISPs are not violating the law, it's hard to imagine that they can show that the law is harming them.

It's a poor legal argument, but seems like a solid civics arguments. Sadly they aren't trying to appeal to the public or lawmakers, they are trying to appeal to the judge, so it seems like wasted effort.

> It's a poor legal argument, but seems like a solid civics arguments.

Is it though? Seems the opposite to me: reactive laws (aka sensational news items -> law) are generally ill considered and badly conceived. Trying to carefully consider how items and technologies can be used, and whether those uses are things which should be forbidden, seems like it'd generally lead to much better law-making, not attached to any sort of emotional "fog". This process won't catch every misuse, but any misuse it catches is one which'd almost certainly have been seen.

It's the same idea as trying to consider how an API could be (mis)used before deploying it, and deciding whether you want to allow that or specifically check against it.

I like that analogy. When designing an API I try to avoid over-engineering for use cases that might exist in the future, but at the same time I do try to make it hard to end up with invalid states. You don't need to wait around for a user to send invalid data before designing to prevent that.

So I guess the question is whether, in this analogy, net neutrality is about use cases or about valid states? Personally, I see it as more of the latter.

I'd be much more willing to accept your argument if this was reactive.

There is historical precedent of ISPs doing the behavior these laws are trying to protect against on large scales. They got caught, and because of the title classification they were forced to stop.

ISPs continue to have financial incentives to do these actively malicious behaviors to their customers so some level of protection needs to be in place.

Too many laws also hamper innovation. Trying to prevent something from happening that hasn't proven to be an issue yet can get in the way of things that are actually good but potentially get caught on a law that gets used against people in unintended ways.

Reactive law can work just as well too, it just needs to not be rushed. For example, Section 230 is a reactive law that allowed for the creation of the internet we have today.

I think your argument could be better made by saying that laws that are created quickly without lots of analysis and debate are bad. Interested parties on any given law need to be able to weigh in to provide insight about how it may impact them, and then it's up to lawmakers to find a good balance.

The public comment process that executive agencies have for rule changes could be nicely applied to our law making process as well.

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