Preserving Net Neutrality is Now Up to Congress: Thoughts For My Congressman

Congressman Brat,

First, I wrote you last month expressing my opposition to a provision in the initial House tax bill that counted tuition waivers for graduate students as taxable income. As this provision was removed in the final bill that passed Congress, I wanted to thank you for any support you lent in the removal of this provision.

Second — the crux of why I am writing — is to urge you to work quickly to preserve net neutrality after the FCC’s repeal of the 2015 Open Internet Order which provided a regulatory framework for insuring that internet providers do not unfairly favor or block web traffic. With the FCC’s change in policy, it is my understanding that the basic tenets and protections of net neutrality will be best preserved and guaranteed through federal legislation. Representative Blackburn’s proposal (https://www.washingtonpost.com/news/the-switch/wp/2017/12/19/this-gop-net-neutrality-bill-aims-to-replace-some-but-not-all-of-the-fccs-rules/) is a good start, as it would ban both the blocking and slowing of websites. However, I would note that the current version of this bill does not ban providers from selling “fast lanes” to specific websites willing to pay a fee — this was previously disallowed under FCC rules. Therefore, I encourage you to advocate for the addition of some reasonable rules around how and when these “fast lanes” can be sold, as “fast lanes” will inevitably put start-ups and small innovators that cannot pay for this preferred service at a disadvantage.

Finally, I am angry that the recent FCC’s decision to repeal the 2015 Open Internet Order was based partially on the premise that broadband investment declined from 2015 to 2016 because of the 2015 regulations, which the FCC Chair called “heavy-handed.” (The data behind this is detailed in the FCC’s annual report on the competitiveness of the wireless industry: http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0927/FCC-17-126A1.pdf.)  I am hoping you — as a trained economist — can join me in refuting this ridiculous assertion. Pointing out the slight drop in investment from 2015 in 2016 and then arguing this drop must have occurred due to the change in regulations is quite a leap in logic. As any economist worth his or her salt knows, correlation does not imply causation. Before leaping to conclusions, one must ask, are there other factors at play? For instance, could this drop be due to the fact that investment in broadband technologies may be cyclical, as providers move between generations of technology, i.e. between 3G and 4G (https://arstechnica.com/tech-policy/2017/09/in-anti-net-neutrality-push-fcc-downplays-data-that-contradicts-narrative/)? Also, do we have a sufficient dataset? Wouldn’t any careful analysis look at overall trends in data prior to the imposition of the 2015 regulations to see if blips are expected or normal? Once you include this data, you would notice that between 2013 and 2015, before the net neutrality rules were in place, there was also a drop in broadband investment (investment was $33.1 billion in 2013 compared to $30.9 billion in 2015, http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0927/FCC-17-126A3.pdf). Shouldn’t that fact be considered before assigning causation to the regulations? Finally, should the FCC ignore the claims of the major telecom companies themselves when they insisted to their investors that the net neutrality rules the FCC enacted in 2015 would not slow their investment in new broadband technology (https://arstechnica.com/information-technology/2017/05/title-ii-hasnt-hurt-network-investment-according-to-the-isps-themselves/)? As a former professor of economics, I am sure you would have sternly corrected any student that came to you with the “analysis” the FCC has presented to the American public as “proof” that the 2015 Open Internet Order caused investment in broadband to decrease.

Aside from the fact that a major reason for the change in FCC rules was sold to the American public based on a comically faulty economic analysis, I could buy the argument that the FCC’s current framework for insuring net neutrality for consumers is overly burdensome and out-of-date, given that it relies on the classification of internet providers as utilities under Title II of the Communications Act, which was designed to regulate 1930’s era telecoms. If that is the case, then fine. Let’s create or change the law to create a more sensible approach for broadband in the 21st century that adequately protects consumers against the whims of gigantic corporations. (For the record, I do not think that the “promises” that these major providers have given not to change how they provide internet service after this recent change is sufficient.) Therefore, I encourage you to work with your colleagues in Congress to shore up legal protections for us in the wake of the FCC’s decision.

Thank you for taking the time to read this letter, and I look forward to seeing you move forward productively on this issue that is so important not just to the day-to-day functioning of the American economy, but is also essential in insuring a vibrant democracy.

Best,

Richard Andrews

Wait…But How Serious is the Mueller Thingy for Trumpy? A Summary of Jeff Toobin’s Fantastic Legal Analysis

The media frenzy surrounding Robert Mueller’s investigation into Trump’s campaign and its possible collusion with Russia has made for some salacious, exciting reading that is rife with conjecture, theories, and prognostications of impeachment. It is also the subject of intense skepticism and ridicule by conservative media outlets and the White House, which has labeled the investigation a fruitless “witch hunt” that is only months (or weeks, if you are Trump’s lawyers) from being abandoned. I, like many, have been eagerly inhaling all of this media exhaust, but it was not until I came across Jeffrey Toobin’s clear-eyed, legal analysis of the current status of the Mueller investigation in the New Yorker and his subsequent interview on NPR’s Fresh Air with Terry Gross that I realized how little I understood of the investigation and its potential ramifications for Trump. What I discovered, perhaps unsurprisingly, is that the dangers that this investigation poses for Trump’s presidency lie somewhere between the calls for impeachment coming from the mainstream media and the collective eye roll coming from the pro-Trumpers. I highly recommend that you check out both the New Yorker article and the Fresh Air interview. However, in case you are short on time (the content is lengthy), I gathered some of my high-level takeaways from Toobin’s thoughts below.

Q: What crimes may Donald Trump have committed that Mueller is investigating?

There are three areas of criminal inquiry of the Mueller investigation:

  1. Illegal lobbying activity of Trump campaign associates – Trump is not under investigation here
    • This focuses on Trump associates (Manafort, Gates, and Flynn) and is unlikely to implicate Trump directly. However, Mueller may use discoveries of wrongdoing here as a bargaining chip to extract more information from those close to Trump. Specifically, he will be looking for more information on the next two areas of the investigation detailed below that would implicate Trump more directly.
  2. Collusion between Russia and the Trump Campaign – Trump looks suspicious here but likely not guilty
    • “Collusion” is not a crime under federal law, so Mueller is likely looking into possible criminal activity related to collusion. Toobin surmises that both are related to WikiLeaks and its hacking of email accounts associated with Hillary Clinton’s campaign and the Democratic National Committee. Two potential crimes are:
      • The Trump campaign received “in-kind” donations from WikiLeaks in the form of information (emails) that they hacked. Since federal law prohibits political campaigns from seeking or obtaining contributions from foreign individuals or entities, proving this would be a crime.
      • The Trump campaign aided and abetted WikiLeaks hacking of emails, which is illegal.
    • Proving criminal activity for both will be difficult as for the first, Mueller will have to use the novel argument that “information” constitutes an “in-kind” campaign contribution and for second, Mueller would have to prove that the Trump campaign somehow helped WikiLeaks hack the DNC or, if they did not know about the hacking before it occurred, make the argument that the Trump campaign distributed these emails knowing they were obtained illegally (proving this “knowledge” will be very difficult). Finally, it is possible that Mueller can link some of the crimes above to Trump’s associates but not Trump himself.
  3. Trump obstructed justice – Trump is almost certainly guilty, but can he be prosecuted?
    • There are two cases where Trump appears to have obstructed justice:
      • Trump fired James Comey for “corrupt motives,” i.e. to stop the investigation into himself and his campaign. Trump essentially has admitted to this on two separate occasions: 1.) May 10th in a meeting in the Oval Office with the Russian Ambassador and Foreign Minister, 2.) May 11th, in an interview on NBC with Lester Holt.
      • By asking Comey to “take it easy” on Flynn when Trump knew he lied to the FBI. Trump admitted he knew that Flynn had lied to the FBI via a tweet on December 2nd.
        • It’s an open question if he pressured Comey (Trump denies Comey’s account) and, if he did, Mueller would have to prove that Trump knew before this exchange that Flynn lied to the FBI.
    • Trump is likely guilty here but it is an open constitutional question whether or not a sitting President can be prosecuted for a crime while in office. This is the crux of Trump’s lawyer’s argument that he cannot be charged criminally with obstruction of justice.
    • However, it is a clear-cut matter of historical precedent that Presidents can be impeached for obstruction of justice (see Nixon and Clinton).

Q: There’s been a bit of chatter about Trump and team’s possible violation of the Logan Act between the election and Inauguration Day, specifically as it relates to discussions they had with the Russians. Why does Toobin not this reference this as a potential problem for Trump?

The New York Times editorial board recently suggested that Trump, if he ordered Flynn to negotiate with Russians ahead of his assumption of office, could possibly have violated the Logan Act, a federal law which states that private citizens cannot negotiate with foreign powers without the consent of the current President’s Administration. However, Toobin likely left this out given that many legal experts argue that any attempt to prosecute Trump and team under this law, which has never been successfully enforced in over 200 years of existence, could successfully be rebuffed by claiming “desuetude” status for the law (desuetude is  the legal doctrine that posits criminal statutes may lapse if they are never enforced).

Q: Outside of criminal behavior, what else could be problematic for Trump?

The impeachment clause of the Constitution states that the President can be impeached for the “conviction of, treason, bribery, or other high crimes and misdemeanors,” so, in addition to “high crimes and misdemeanors” committed by Trump, Mueller is likely looking into possible “bribery” given his extensive business dealings with Russian interests (which would be the reason Mueller is allegedly interested in Trump’s bank records). “Treason,” on the other hand, is defined in the Constitution as “levying war” against the United States, which is likely inapplicable to Trump’s conduct.

Q: So what are the potential outcomes of Mueller’s investigation?

There really are three potential outcomes, which are listed in increasing order of likelihood according to Toobin:

  1. Mueller finishes his investigation and says “no crimes or anything to report” as it relates to Donald Trump. – Unlikely
  2. Mueller brings criminal charges against Donald Trump for obstruction of justice and/or the crimes related to collusion above. – Could happen but would be unprecedented for a President to be charged of a crime while in office and would raise serious Constitutional questions.
  3. Mueller provides a report to Congress, detailing all of the dubious connections between Trump’s campaign and Russia while details how Trump may have obstructed justice – This the most likely outcome

Q: Ok, so if Mueller produces a relatively damning report of Trump, then what happens? Impeachment?

If Mueller provides a report to Congress, then what Congress does with the findings of his investigation becomes a political matter, i.e. is Congress willing to move forward to impeach Trump? In all likelihood, impeachment will happen only if Democrats control one or both house of Congress (as a matter of precedent, impeachment proceedings have only started when the majority party in Congress differs from that of the President). In short, the 2018 elections are just as important in determining whether or not Trump gets impeachment as the substance of the report that Mueller produces.

Q: Wait, so really, in the end, the outcome of Mueller’s investigation really just comes down to politics?

Yup, that’s right. Welcome to Washington, D.C. folks.