The Hypocrisy of AT&T’s “Internet Bill of Rights”

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Last week AT&T has decided it’s good business to advocate for an “Internet Bill of Rights.” Of course, that catchy name doesn’t in any way mean that what AT&T wants is a codified list of rights for Internet users. No, what AT&T wants is to keep a firm hold on the gains it has made in the last year at the expense of its customers’ rights.

There is nothing in the history—the very recent history—of AT&T to make anyone believe that it has anyone’s actual best interests at heart. Let’s take a look at how this company has traditionally felt about privacy and network neutrality.

Few companies have done more to combat privacy and network neutrality than AT&T.

It takes an incredible amount of arrogance for AT&T to take out a full page ad in the New York Times calling for an “Internet Bill of Rights” after spending years effectively waging the most far-reaching lobbying campaign to eliminate every consumer right. In some ways, it should strike you as a type of conquerors decree after successfully laying waste to the legal landscape to remake it in its own image. But AT&T’s goal is abundantly clear: It does not like the laws that exist today to police its conduct in privacy and network neutrality so it wishes to rewrite them while hoping Americans ignore its past actions.

AT&T’s Fight Against Privacy

In 2017, Congress repealed broadband privacy. It was easy to be frustrated and angry with the government, but remember, when it happened, AT&T was there arguing that losing your privacy was good for you. In fact, it even argued that you didn’t need to worry because AT&T and other ISPs were still regulated.

In its own words: “for example, AT&T and other ISPs’ actions continue to be governed by Section 222 of the Communications Act.” This is deeply ironic as, at the same time, AT&T was arguing that the Communications Act would protect us while simultaneously lobbying the Federal Communications Commission (FCC) stop applying Section 222 to their broadband. which just happened this December when the FCC repealed the 2015 Open Internet order.

AT&T has not stopped there either. Having won on the national level, it is, right now, using the same double-talk to stop states from passing ISP privacy laws to fill the gap it created.

In California, for example, it stated on the record that “AT&T and other major Internet service providers have committed to legally enforceable Privacy Principles that are consistent with the privacy framework developed by the FTC over the past twenty years.” Which is a long way of saying, “There is no need to pass a state law because the Federal Trade Commission can enforce the law on us.”

As with the arguments made in front of Congress and the FCC, AT&T both states that there are laws that cover ISPs and that those laws don’t exist. What exactly is AT&T saying about the FTC’s enforcement power — the power it is saying obviates the need for stat laws — in the courts today?

That they are exempt from it.

The image above is from litigation known as the FTC vs AT&T Mobility case, which is still ongoing. The core of AT&T’s argument is because their telephone service is a common carrier service, and the FTC is prohibited from regulating common carriers (even though their broadband product is no longer a common carrier with the repeal of the 2015 Open Internet Order), that the entire company is exempt. It has so far prevailed on that argument in the 9th Circuit and many proponents of repealing network neutrality incorrectly, though spiritedly, claimed that their decision to end common carrier regulations of broadband would enhance the FTC’s power over AT&T.  However, AT&T is going so far as to argue – today – that it does not even matter how the FCC regulates ISP broadband, it is just de facto exempt from FTC power.

(Footnote from AT&T’s legal filing.)

All of this is to say that AT&T is waging against a sustained, current war on user privacy. It was AT&T that was inserting ads into the traffic of people who use their wifi hotspots in airports. It also used “Carrier IQ,” which gave them the capability to track everything you do, from what websites you visit to what applications you use. It took a class action lawsuit for the carriers to begin backing down from this idea. And if it was not for Verizon getting into legal trouble with the federal government for use of the undeletable “super cookie,” AT&T would have followed suit to get in on the action.

AT&T’s Fight Against Network Neutrality

“Some companies want us to be a big dumb pipe that gets bigger and bigger. No one gets a free ride. Those that want to use this will pay.” – former AT&T CEO in 2006

This famous remark by AT&T was probably the most straightforward and honest statement the ISP has made in regards to their thoughts on network neutrality. In addition to obviously misconstruing the facts, it’s a manifestation of AT&T’s belief that an open and free Internet is a threat to their bottom line. At each and every iteration of the network neutrality debate at the federal agency, AT&T has raised objections to enforcing net neutrality.

In filing,

after filing,

after filing,

after filing,

AT&T has made arguments against being required to operate in a non-discriminatory manner.

Which makes sense, since over those years, AT&T has violated net neutrality on multiple occasions. Just last year, the FCC determined that AT&T was engaging in discriminatory, anti-competitive practices by zero-rating its own DIRECTV content while simultaneously charging its competitors unfavorable rates to get the same treatment. While FCC Chairman Ajit Pai halted the investigation and rescinded its findings to eliminate their legal impact on behalf of AT&T and Verizon, the facts are indisputable that AT&T was giving away its own video programming for free in order to drive customers to subscribe to DIRECTV, while stifling any competing video streaming services. The Department of Justice under President Trump shares these concerns when it filed its anti-trust lawsuit against AT&T to block its acquisition of Time Warner content on the grounds that it will harm online video competition. But that’s just the tip of the iceberg.

Back in 2012, AT&T blocked its customers from using FaceTime, Apple’s video chat app, unless they switched to data plans that were generally more expensive. Not only was this a clear case of blocking based on content for purely business reasons, AT&T tried to claim that doing so didn’t violate net neutrality. This two-faced argument shows just how far the company is willing to go in its double-speak to get away with violating real net neutrality.

If AT&T wants the public to take their “Internet Bill of Rights” advocacy seriously, rather than come across as disingenuous in their public relations campaign, then it needs to actively change how it lobbies Congress and the state legislatures. Rather than deploying its efforts to actively oppose every effort to restore network neutrality and privacy, they should be supporting those efforts. Until then, this is just another example of a major ISP coopting a message they fought hard to defeat (and lost) but are now pretending they support in hopes that Internet users look the other way.


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Author: Ernesto Falcon

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