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Sotomayor Hearings: Franken Asks After Network Neutrality

BY Nancy Scola | Wednesday, July 15 2009

Namechecking the role social media played in recent events in Iran and calling the Internet "essential to our democracy," Senator Al Franken -- yes, seriously -- used his time in today's Senate Judiciary hearing on Sonia Sotomayor to ask the nominee where she comes down on the question of network neutrality. In broad strokes, that's the ideal that content sent across the Internet should be protected from being privileged or discriminated against by network operators or service providers.

Franken brought up the 2005 Supreme Court "Brand X" case which, while indeed having to do with a Supreme Court decision, comes down to a question of jurisdiction rather than legal principle. That left an opening for Sotomayor to fend off the question. It was an opportunity she spotted and more or less seized.

(The particulars on Brand X: SCOTUS ruled that the FCC was within its rights to consider Internet traffic that's transmitted via cable under the provisions in the '96 Telecom Act that have to do with information services, rather than as a telecommunications service. That latter designation brings with it common carrier restrictions that prevent discrimination. As a "Title II" service, Internet via cable isn't subject to the same requirements. To put it another way, the Supreme Court simply said in Brand X that this wasn't a question of free speech or the like. It's a matter of whether, under current statute, it's up to the FCC to decide how to handle Internet traffic. They determined here that it was. Here, via WikiLeaks, is a good CRS report on the specifics.)

Sotomayor responded to Franken by saying that while "There's no question in my mind as a citizen that the Internet has revolutionized communications in the United States," she saw responsibility here falling on Congress to write better laws on how the Internet should be understood. Brand-new Senator Franken agreed, saying "Okay, so we've got some work to do on this."