Statement of the Honorable John Conyers, Jr., Ranking Member, Committee on the Judiciary, for the Markup of H.R. 906, the “Furthering Asbestos Claim Transparency (FACT) Act of 2017”

Dean of the U.S. House
of Representatives
John Conyers, Jr.

Mr. Chairman -- I have several serious concerns with H.R. 906, the “Furthering Asbestos Claim Transparency Act,” or the so-called “FACT Act.”

To begin with, the bill’s reporting and disclosure requirements are an assault against the privacy of asbestos victims who seek payment for their injuries from bankruptcy trusts established for that purpose.

In particular, H.R. 906 would force these trusts to publicly disclose sensitive, personal information of these asbestos claimants, including their names and exposure histories. 

As a result, their private information will be irretrievably released into the public domain available via the Internet.

Just imagine what insurance companies, prospective employers, lenders, and data collectors could do with this private information.  Worse yet, these asbestos victims will be more vulnerable to predators.

By exposing their personal information to the public, H.R. 906 will allow asbestos victims to be re-victimized notwithstanding the fact that such disclosure has absolutely nothing to do with compensation for asbestos exposure.

While H.R. 906's supporters claim that it is intended to help victims of asbestos exposure,  asbestos victims vigorously oppose H.R. 526.  

           

In fact, I am not aware of a single asbestos victim who supports H.R. 526.

Because of this serious shortcoming of the bill,  I intend to offer an amendment that will protect the privacy of asbestos claimants.

Another problem with H.R. 906 is that it is fundamentally inequitable.        Although the bill requires bankruptcy asbestos trusts to make certain disclosures, it makes no comparable demands on those whose products killed or injured millions of unsuspecting American workers, servicemembers, and consumers. 

In fact, some manufacturers intentionally concealed known risks of asbestos exposure and used every trick in the book to avoid liability.  They even fought the federal government’s efforts to ban its use.

           

As a result, asbestos continued to be widely used in constructing our homes, offices and public schools.  This very building in which we are sitting is in the midst of a nearly 20-year asbestos abatement effort. 

And now, these very same manufacturers ask  Congress to help them by passing H.R. 906, which effectively shifts some of the costs of discovery away from them to asbestos bankruptcy trusts.

Unfortunately, H.R. 906 is nothing more than an attempt by asbestos defendants to do an end-run around the discovery process available under non-bankruptcy law.

           

Finally, contrary to the claims of proponents of this legislation, there is no evidence of endemic fraud warranting such an invasive measure as H.R. 906.

The Government Accountability Office reported that there is no empirical evidence of such fraud with respect to the trusts’ claims processing system.

While not perfect, the trust system set up under Bankruptcy Code section 524(g) has generally proven to be beneficial to both asbestos victims and to corporations facing mass tort liability for causing asbestos injuries. 

           

In exchange for agreeing to fund these trusts, companies are able to shed their massive asbestos tort liabilities and re-enter the business community on a competitive basis for the benefit of their creditors and those who they injured.           

The trusts, in turn, owe a fiduciary duty to all beneficiaries to ensure that only proper claims are paid to the extent possible.

These are just a few of the serious concerns that I have with this legislation.  So, accordingly, I must urge my colleagues to join me in opposing this seriously flawed measure.

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CONYERS & POE LEAD BIPARTISAN HOUSE COALITION TO STOP GOVERNMENT SURVEILLANCE AND HACKING

WASHINGTON, D.C.—Congressman John Conyers (D-MI) and Congressman Ted Poe (R-TX) along with Congressman Blake Fahrenthold (R-TX) and Congresswoman Zoe Lofgren (D-CA) introduced H.R. 5321 the Stop Mass Hacking Act. This is the companion bill to legislation introduced on the Senate side by Senators Ron Wyden (D-OR) and Rand Paul (R-KY). The Department of Justice has recently moved to make an administrative rule change to Rule 41 of the Federal Rules of Criminal Procedure that would give the government the ability to hack the computers of a massive amount of American citizens just by obtaining a single warrant.  If Congress does not act by December 1, 2016, this change will be in effect. The Stop Massive Hacking Act prevents these changes to Rule 41 from going into effect.

Dean of the U.S. House
of Representatives
John Conyers, Jr/

“I stand by the Stop Mass Hacking Act because I am not yet convinced that the proposed changes to Rule 41 are wise or necessary,” said Rep. Conyers. “This rule change is designed to streamline investigative techniques that allow law enforcement to gain unauthorized access and control to remote computer systems.  Until Congress has had an opportunity to examine this proposal in detail—and until we have adequately addressed the privacy concerns raised by my colleagues—this rule change should not take effect.”

“Government does not have the authority to unilaterally legalize widespread government hacking,” said Rep. Poe.  “Americans have rights. It is Congress’ responsibility to safeguard the constitutional rights of the people they represent from a power hungry Executive Branch. As such, we are moving to stop this change that condones hacking the property of the very people we are entrusted to protect.”

“This bill hits pause on a new rule which facilitates hacking of foreign entities and hijacking devices owned by the victims of malware attacks without their permission,” said Rep. Lofgren.  “These troubling activities, and the international, privacy, and security ramifications which may arise as a result, deserve serious deliberation and debate in Congress.”

“We’re in the midst right now of one of the biggest battles in the privacy world that we have faced,” saidRep Farenthold. “Because of the horrendous terrorist attacks we’ve witnessed, there’s a willingness to give up some of our freedoms and privacy in order to feel safe. That’s completely understandable, but if we keep down this path, we’re going to wake up in a few years in George Orwell’s ‘1984.’ This is why, as we fight for security, the intrusion on privacy

necessary to fight the war on terror needs to be narrowly tailored and aggressively overseen.”

“Representatives Poe, Conyers, Farenthold and Lofgren are leading the fight to protect Americans’ freedoms by introducing the Stopping Mass Hacking Act in the House of Representatives,” said Senator Wyden. “They’re proof that a growing, bipartisan coalition agrees that this expansion of the government’s hacking and surveillance authority simply goes too far.”

Stop Mass Hacking Act Summary by Beverly Tran

Read a one-page bill text of the Stopping Mass Hacking (SMH) Act.

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HOUSE JUDICIARY COMMITTEE REPUBLICANS STRIKE DOWN AMENDMENT TO PROTECT SURVIVORS OF DOMESTIC & SEXUAL VIOLENCE FROM ONLINE ABUSE

Washington, D.C. - Yesterday, House Judiciary Committee Republicans voted against Congresswoman Judy Chu’s (D-CA) amendment to H.R. 5203, the so called Visa Integrity and Security Act of 2016. Representative Chu’s amendment would have required the Department of Homeland Security (DHS) to establish safeguards to protect survivors of domestic abuse in the social media screening process. These safeguards are necessary to prevent abusers from manipulating their victims’ social media accounts or using social media to cause further harm that could deny victims the opportunity to obtain humanitarian immigration relief. The amendment failed on a party line vote of 14 to 8.

“The Visa Integrity and Security Act of 2016 leaves domestic violence, sexual violence, and stalking survivors at risk for having their visas denied and being made more vulnerable to their abusers,” said Congressman Conyers. “Rep. Chu’s amendment to the bill would have ensured they receive the protections they deserve against harassment during the immigration review process. I’m appalled that my Republican colleagues blatantly overlooked the needs of this vulnerable population.”

“This outrageous bill is just the latest example of how House Republicans are trying to turn hate speech into policy,” said Congresswoman Chu. “This legislation would effectively halt all legal immigration and specifically target applicants from Middle Eastern countries. Imagine fleeing violence for safety in the U.S. only to be turned away because you can’t afford a DNA test.  Not only does this bill fail to strengthen national security, it further victimizes survivors of domestic abuse. Under this bill, a visa can be denied solely on the basis of social media activity. However, it does nothing to deal with situations where an abuser may impersonate a victim with a new social media profile or hijack a victim’s existing social media profile to make salacious posts. That is why I introduced my amendment to require the Department of Homeland Security (DHS) to establish procedural safeguards to protect victims of domestic abuse prior to conducting social media screening in the immigration process. These safeguards are necessary to prevent abusers from manipulating their victim’s social media accounts or deny victims the opportunity to obtain the humanitarian immigration relief that they deserve. This threat is real and if not dealt with properly, deserving immigrants may be denied their visas, and worse, remain vulnerable to their abusers.”

Congresswoman Chu continued, “This was a reasonable measure that would protect those seeking safety in the United States, and I’m disappointed that my Republican colleagues are more interested in keeping any and all immigrants out of our country and not in creating an immigration system that works for us.”

According to the U.S. Department of Justice, more than one in four stalking victims reported suffering some form of cyberstalking.  The majority of these victims identified the online stalker as a former intimate partner. As it stands, the Visa Integrity and Security Act of 2016 does not prevent abusers from impersonating a victim with a new social media profile or hijacking a victim’s existing social media profile. This behavior can negatively impact an individual’s chances during the immigration review process.

The House Judiciary Committee passed the Visa Integrity and Security Act of 2016 on a party line vote of 14 to 10. This Republican legislation would create multiple new onerous requirements that could ultimately impair an already broken U.S. immigration system. 

Statement of the Honorable John Conyers, Jr. for the Markup of H.R. 5203, the ‘‘Visa Integrity and Security Act of 2016”

Dean of the U.S. House
of Representatives
John Conyers, Jr.

Strengthening the security of the immigration and visa issuance process is a critical issue for all Americans. 

As one who believes our Nation should be a beacon of freedom and liberty, I very much appreciate the need to effectively combat terrorism, while maintaining our commitment to core values.

Unfortunately, H.R. 5203, the “Visa Integrity and Security Act,” fails to honor those core values.

This failing can largely be attributed to the fact that the bill reflects absolutely no input from Democratic Members of the Committee. Nor has this measure been the subject of any legislative hearing. 

Bereft of informed testimony and expert analysis, we have essentially no information about the bill's potential costs, both fiscal and social.  Yet, even a superficial review of H.R 5203 reveals its many flaws. 

To begin with, the bill – without any exception for age or any other factor -- singles out every national of Iran, Syria, Iraq, Libya, Somalia, Sudan, and Yemen by requiring that the Department of State complete individualized security opinions for visa applicants from these countries. 

As a result, vast amounts of agency time and resources would be dedicated to completing security advisory reports on, for example, infants, toddlers, and others who clearly pose no security risk.

An even more troublesome aspect of this provision is that it singles out a handful of majority Muslim countries thereby dehumanizing entire populations by treating all of their nationals as potential terrorists. 

Clearly, the more we dehumanize entire populations based on religion, the less likely they will become our allies against the real threat, namely, terrorists who seek to do our Nation harm.

History has shown that arbitrary across the board judgments based on broad characteristics, such as nationality, do nothing to enhance our security and only cast a cloud of suspicion over entire communities here in our country. 

Another critical flaw of this bill is the serious privacy concerns it presents.  Although H.R. 5203 mandates DNA testing for biological family-based immigrant applications, the bill has no provisions safeguarding this massive new database of DNA, that would include the DNA of potentially millions of non-criminals and American citizens.

Finally, this bill would require significant costs to implement, yet offers no comprehensive fix to our broken immigration system.

Just one provision of this bill -- the Visa Security Program -- would come at the cost of $120 million without meaningfully targeting law enforcement and intelligence resources on actual threats.

An immigration reform bill – such as the measure that passed the Senate in 2013 or the bill that had 201 House cosponsors in the last Congress – would allow law-abiding immigrants to come out of the shadows and get right with the law. 

Measures such as those it would make us safer by enabling law enforcement and intelligence agencies to focus resources on the most pressing cases.

Rather than rushing to consider legislation absolutely devoid of deliberative process, we should devote our efforts to developing meaningful and informed solutions.

Accordingly, I urge my colleagues to oppose H.R. 5203, and I yield back the balance of my time.

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Conyers Considering Legislation to Curb Government Hacking

Dean of the U.S. House
of Representatives
John Conyers, Jr.

The top Democrat on the House Judiciary Committee, Michigan Rep. John Conyers, is looking into joining Sen. Ron Wyden’s (D-Ore.) movement to reverse Supreme Court-approved changes to federal criminal procedure that could expand government-run hacking operations. The change would allow judges to grant warrants for computer and data investigations in any jurisdiction.

“Many in the House, both Democrats and Republicans, remain concerned about the investigatory techniques at the heart of this discussion,” Conyers said late Thursday. “We will continue to study the issue and, when appropriate, we hope to join Senator Wyden in his call to block the change.”

Wyden introduced a bill on Thursday to reverse changes to federal criminal procedure “Rule 41,” approved by the Supreme Court in late April. Upon the introduction of the bill, Wyden’s office indicated a House companion bill is expected soon to reverse what Wyden called “dramatic expansion of the government’s hacking and surveillance authority.”

“These rule changes will allow the government to search millions of computers with the warrant of a single judge,” Wyden added in a Thursday post on Medium.

Sens. Rand Paul (R-Ky.), Tammy Baldwin (D-Wis.), Steve Daines (R-Mont.) and Jon Tester (D-Mont.) cosponsor the Senate measure.

The Department of Justice requested the changes after three years of negotiations, and have disputed privacy advocates’ interpretation of the rule change.

“The amendment would not authorize the government to undertake any search or seizure or use any remote search technique not already permitted under current law, and the amendment does not change any of the traditional protections and procedures, such as the requirement that the government establish probable cause,” a DOJ spokesman said in an emailed statement Thursday.

https://morningconsult.com/alert/conyers-looking-legislation-reverse-change-rule-41/

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Statement of the Honorable John Conyers, Jr. on H.R. 699, “The Email Privacy Act”

Dean of the U.S. House
of Representatives
John Conyers, Jr.

“As of this morning, the bill has earned 304 cosponsors—191 Republicans, 113 Democrats, and 27 members of the House Judiciary Committee.  What do all of these members have in common?

           

“First, we all agree that the Electronic Communications Privacy Act is outdated and provides unjustifiably inconsistent standards for government access to our stored communications.

           

“This statute continues to serve as one of the main guarantees of our digital privacy.

           

“But the law was designed in 1986, when few of us used email, and fewer imagined a world in which we could so freely share information online.

            “The consequences of applying a thirty-year-old understanding of technology to modern communications are inconsistent, at best. 

            “For example, the law seems to apply different standards for government access to the same email at different points in its lifecycle—when it is drafted, when it is transmitted, when it opened by its recipient, and when it is archived in the cloud.

            “We are not well-served by a law whose application is unpredictable, and that the courts have had great difficulty interpreting. 

            “Because of the rapid pace of technological change, this situation will only get worse if we do not act.

            “Second, the sponsors of this bill agree that the government should be obligated to show probable cause before it can force a provider to disclose the content its customer’s email—no matter how old the message is.

            “This standard is consistent with the holding of the Sixth Circuit in U.S. v. Warshak in 2010.  That case motivated the Department of Justice to voluntarily adopt a warrants-for-email standard. 

            “It also effectively ended the unconstitutional use of subpoenas to compel third parties to produce content in civil enforcement actions.

            “Current law requires the government to show probable cause and obtain a warrant only for email that has been in storage for 180 days or less.  But the government can use an subpoena for the same email if it is stored for one day longer.

           

“This is no longer acceptable to most Americans.  As the Sixth Circuit rightly observed, citizens have the same reasonable expectation of privacy in their email before and after the 180-day mark.

            “And as the Department of Justice testified soon thereafter, “there is no principled basis to treat email less than 180 days old differently than email more than 180 days old.”

            “Third, the sponsors of H.R.699 all agree that current law is not adequate to protect new forms of digital communication.

            “Content is content.  Our expectation of privacy does not diminish merely because Congress didn’t think of the medium when it last visited the statute.  The law should protect electronic communications across the board:  email, text messages, private messaging of all sort, and other forms of digital information stored in the cloud.

           

“Finally, the sponsors of this bill agree that we must act without delay.

            “We have an obligation to provide clear standards to law enforcement with respect to emerging technologies.

            “We should also recognize that American businesses cannot sustain these new technologies if consumers cannot trust them.

            “As the Committee takes up this bill, we should ensure that it does not conflict with the basic notion that the government’s seizure of our email without a warrant violates the Fourth Amendment.

            “But we should note that this principle has already taken hold across the federal government.  The Department of Justice already uses warrants for email in criminal cases. 

            “The government stopped using lesser process in the civil context years ago.

            “In short, Mr. Chairman, this legislation accomplishes two vital tasks: it updates the statute for modern use, and it does so without any significant interruption to law enforcement.

            “We should come together on this bill as soon as possible.

            “I thank the witnesses for their testimony today and I urge my colleagues to give this measure their full support.”    

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Statement of the Honorable John Conyers, Jr., Ranking Member Full Committee Hearing on “Oversight of the Federal Bureau of Investigation”

“Today, we welcome Director James Comey of the Federal Bureau of Investigation, for his second appearance before the House Judiciary Committee since taking office on September 4, 2013.

“The FBI’s mission is a complex undertaking: to protect the United States from terrorism, to enforce our criminal laws, and to lead the nation’s law enforcement community.

“And yet, as vast as this mission seems, I think nearly all of the discussion we will have here today can be distilled into one word: trust.

“Trust in the executive branch to respect and secure our privacy and our civil liberties.  Trust in the FBI as an institution.  Trust in the state and local agencies that police our communities.

“In many respects, Director Comey, I think we agree on this point.

“For example: you have spoken powerfully about ‘the hard truths’ we must keep in mind when we discuss race and policing—and particularly when we discuss the use of force by police officers.

“I am told that you require all new agents to study the FBI’s interaction with Dr. Martin Luther King, Jr., and to visit his memorial at the Tidal Basin.

“I am also told that you keep on your desk a copy of Robert Kennedy’s approval of J. Edgar Hoover’s request to place a wiretap on Dr. King. 

“These are powerful reminders of a troubling and not-too-distant history.  It is not difficult to draw a line from that era to recent events in Ferguson, Baltimore, New York, and Cleveland.

“And that is why your work to build trust between police and our communities is so important. 

“Nowhere is that effort more apparent than in your call for better data on the use of force by police. 

“Although the FBI is the national custodian of crime statistics, that data is reported voluntarily and inconsistently. 

“You have been honest in your assessment that official statistics in this area are so incomplete as to be ‘embarrassing and ridiculous.’

“We need a better understanding of what drives police use of force, and we cannot study the problem without reliable data.  I urge you to continue to press your state and local partners for consistent and accurate reporting to the National Incident-Based Reporting System.

“Just as we must rebuild trust in certain state and local law enforcement units, we will look to your testimony today to reassure us about a number of programs and activities at the FBI.

“Earlier this year, the public noticed a small plane flying in a tight pattern directly over the site of unrest West Baltimore.  Other reports from other parts of the country—including my district in Detroit—raised questions about similar aircraft. 

“The FBI has since confirmed the existence of its aerial surveillance program.

“On June 3, fifteen members of this Committee wrote you to ask for more information about this program.  Your team provided our staff with a briefing soon thereafter.

“But the public still has many questions about aerial surveillance, and you have said that there is a great deal of misinformation about this program.  I would like you to use your testimony to explain, from your perspective, how this program works and why we should trust the Bureau to operate it.

“Similarly, I think we would benefit from a fuller discussion of encryption and what you have called the ‘Going Dark’ problem.

“Over the past year, you have called for a congressional mandate to give the FBI special access to otherwise encrypted data.

“I have a difficult time understanding this proposal.  Every technical expert who has spoken on this issue has concluded that it is technically impossible to provide this access without also compromising our security against bad actors.

“Even if it were technically feasible, it would cost our technology sector billions of dollars to implement the scheme—and perhaps billions more from loss of business overseas, where U.S. government surveillance programs have already taken a toll on the industry.

“And even if it were technically feasible and easy to implement, a new rule for U.S. companies would not succeed in keeping bad actors from using unbreakable encryption—which is open source, free, and widely available from companies based overseas.

“As Chairman Goodlatte argued when we had this debate in 1999: ‘Only by allowing the use of strong encryption, not only domestically but internationally as well, can we hope to make the Internet a safe and secure environment.’

“I agree with that sentiment, you have made similar public statements, and I hope that you can help us to reconcile that view with your call for special access.

“Finally, because rigorous oversight is necessary for public trust, I hope that you will commit today to full compliance with the Inspector General Act.

“For the past five years, the FBI has resisted the clear mandate of that law.  The Inspector General of the Department of Justice is to have timely access to every document he requires to carry out his duties. 

“Noncompliance has real consequences.  This Committee waited until February of this year to receive a report about the FBI’s use of Section 215 orders from 2007 to 2009.  The public waited until May for the unclassified version. 

“In the middle of a national debate on government surveillance, we waited six years for critical information.  This delay is unacceptable.

           

“I understand that there are other interpretations of the law.  Congress will soon clarify the matter, likely in overwhelmingly bipartisan fashion. 

           

“But in the meantime, Director Comey, I hope that the Bureau will step away from its litigating position and give the Office of the Inspector General the access it requires and deserves.

“Your job is a complex and demanding one, Director.  We appreciate your being here today.  I look forward to your testimony, and I yield back.”

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Lawmakers introduce Bipartisan Remote Sales Tax Legislation

WASHINGTON – One June 16, 2015, House Judiciary Committee Ranking Member John Conyers, Jr. (D-MI), Congressman Jason Chaffetz (R-UT) and a group of bipartisan lawmakers introduced H.R. 2775, the Remote Transactions Parity Act (RTPA), a bill that will modernize our nation’s outdated sales tax collection process.  The legislation, which will be referred to the House Judiciary Committee because of its jurisdiction over state taxes affecting interstate commercewill strengthen states’ authorities and bring sales tax parity to e-retailers and brick-and-mortar stores.

Dean of the U.S. House
of Representatives
John Conyers, Jr.

“Each year, more and more Americans are turning to the Internet to purchase goods and services. While this development has been a boon for certain industries, state and local governments have been increasingly deprived of critical revenue as a result of lost taxes that consumers are not required to pay under the current system,” said Rep. John Conyers.  “Lost tax revenues mean that state and local governments will likely provide their citizens with fewer services, like education, law enforcement, and social services. The Remote Transactions Parity Act represents a bipartisan effort that incorporates the best aspects of these prior measures in a fair and equitable manner and has broad support from the business community, and state and local governments.  I look forward to working with my colleagues across the aisle to turn this bill into law.”

The current tax loophole skews the free market.  It allows businesses to avoid collecting sales taxes.  This not only forces more brick-and-mortar stores to close their doors and lay off their employees, but also requires consumers to shoulder the burden and liability of the sales tax themselves - taxes that the consumer is by current law required to compute and pay as a part of their yearly taxes.  The RTPA would close this loophole in a way that is generous to small remote sellers and puts our neighborhood retailers on a level playing field - without completely changing our current state sales and use tax structure.

RTPA includes significant audit protections for small businesses – and, except in the case of intentional misrepresentation or fraud, exempts businesses under $5 million in gross receipts from remote state audits entirely.

Additionally, this legislation also exempts from collection requirements in the first year small businesses under $10 million, phasing to $5 million in the second year and $1 million in the third.

Finally, the RTPA calls for states to give remote sellers the software needed to collect and remit the taxes due.  It also requires states to pay for set-up, installation, and maintenance costs on the software.

Additional cosponsors include Reps. Steve Womack (R-AR), Jackie Speier (D-CA), Kristi Noem (R-SD), Peter Welch (D-VT), Steve Stivers (R-OH), Suzan Delbene (D-WA), Lou Barletta (R-PA), Ted Deutch (D-PA), Scott Rigell (R-VA), John Larson (D-CT),  Renee Ellmers (R-NC), Derek Kilmer (D-WA), Carlos Curbelo (R-FL), Hank Johnson (D-GA), and Robert Dold (R-IL).

Internet Sales Tax House Bill 2016

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House Judiciary Committee Ranking Member John Conyers, Jr. Opening Statement on Net Neutrality

WASHINGTON - Today, during a full House Judiciary Committee hearing on “Wrecking the Internet to Save It? The FCC’s Net Neutrality Rules,” Ranking Member John Conyers, Jr. (D-MI) delivered the following opening statement:

Dean of the U.S. House
of Representatives
John Conyers, Jr.

“The Judiciary Committee has a central role in studying the issue of net neutrality and, more generally, competition on the Internet. As the Committee considers today the specific question of what impact the Federal Communications Commission’s latest Open Internet Order has on competition and innovation, we should keep several factors in mind.

“To begin with, whatever approach one uses to ensuring an open Internet, inaction is not an option.  There are real threats to net neutrality.

           

“As I have previously observed at hearings held on the issue of net neutrality in 2008, 2011, and 2014, there are many areas in the United States where consumers have the choice of only one or two broadband Internet service providers.  As a result, these broadband providers effectively function as monopolies or duopolies.  In turn, their control over the broadband access market can result in differential treatment of content depending on how much a content provider pays, whether the broadband provider also offers competing content, or if any other the financial incentives for discriminating for or against given content were present.

“The concerns that I have previously expressed have only become more problematic since then particularly in light of further acquisitions by broadband providers that may result in even less consumer choice, less innovation, higher costs, andmore power in the hands of fewer broadband providers.

“In light of this threat, I commend the Federal Communications Commission for its work in crafting a strong set of rules for ensuring an open Internet. Congress created the FCC to develop the specialized expertise to properly regulate the complex telecommunications industry in service of the public interest.  And, after a lengthy rulemaking period during which almost 4 million Americans and all industry stakeholders made their voices heard on this issue, the FCC has fulfilled that mandate with respect to preserving and promoting an open Internet. Rules to address net neutrality have the benefit of addressing potential threats to an open Internet before they fully materialize.

“Additionally, having a set of best practices enshrined in rules would provide certainty for industry.  The FCC’s net neutrality rules, therefore, must be given the opportunity to take root.

“I am particularly pleased that the FCC’s Open Internet Order contains key provisions that I and many others have long called for and that will help protect competition.  These include –

●          a rule preventing broadband providers from blocking or throttling Internet access or from imposing paid prioritization of Internet traffic;

●          a restriction prohibiting any other practices that unreasonably interfere with or disadvantage users’ ability to access broadband service or lawful content applications, or services; and

●          a requirement mandating disclosure to users of information concerning network management practices and any terms, conditions, or limitations on the broadband service.

“These measures are critical to protecting the virtuous cycle of innovation which net neutrality fosters, and which ensures both competition and innovation among broadband and content providers, to the ultimate benefit of consumers.

“Finally, enforcement of existing antitrust law as the exclusive or primary means of ensuring an open Internet would be insufficient. Under current antitrust law, there is relatively little that regulators can do outside the merger review context to address the conduct of a regulated industry such as broadband Internet service with respect to enforcing net neutrality principles.

“Through a series of decisions, the Supreme Court has limited the potential to successfully pursue claims under the Sherman Antitrust Act with respect to net neutrality.

“Moreover, exclusive reliance on antitrust enforcement is simply insufficient.  While having the benefit of a more nuanced and fact-specific approach to the problem, antitrust enforcement alone would also be a cumbersome, more limited, more resource-intensive, and after-the-fact way to develop a regulatory regime for net neutrality.

“Another potential approach would be for the Federal Trade Commission to use its authority under Section 5 of the Federal Trade Commission Act to stop “unfair methods of competition.”

“Although I hold an expansive view of Section 5, to the extent that this approach goes beyond the scope of the Sherman Act or other antitrust laws it would be very controversial, as my friends on the other side of the aisle would be the first to note.

“Moreover, antitrust law is not sufficiently broad in scope as it fails to address the non-economic goals of net neutrality, including the promotion of innovation and the protection of free speech and political debate. This is why Former Chairman James Sensenbrenner, Representative Zoe Lofgren and I introduced bipartisan legislation back in 2006 to strengthen antitrust law to address net neutrality, in part because the FCC was doing too little at that time, in my view.

“I do not have that concern with the FCC’s latest Open Internet Order.  Rather, I congratulate them on their good work and welcome the Order’s full implementation.”

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