Net neutrality secrecy: No one knows what the FCC approved (BUT Google has a good idea)

Last-minute rewrites and more revealed

Analysis US watchdog the FCC formally approved new net neutrality rules on Thursday for America. But you're out of luck if you want to know exactly how your access to the internet will be now be governed.

Despite getting the green light, the exact rules have not been revealed and will remain a mystery for some unspecified length of time.

"We will publish the order on our website as soon as next two steps are completed," said FCC chairman Tom Wheeler when quizzed after the vote.

"First, we have to get the dissents in, and second have to look at those dissents – and we are required to be responsive to the dissents. Then we will put it on the web. And at that point also file it with the Federal Register." He refused to give a timeframe for that process.

Nor did the FCC's general counsel Jonathan Sallet. "This is not a 'secret plan'," he responded to one reporter who asked again why the FCC was making decisions on unpublished documents. "It's part of a process." He also referenced a judgment by a Washington DC court that the FCC was obliged to respond to dissents put forward by commissioners – namely, the two Republican commissioners who voted against Wheeler's secret plans.

But, of course, that court decision does not preclude the FCC chairman from publishing the documents as they stand now. In fact, it is entirely within his power, and Wheeler could also have shown us the regulations when they were provided to the FCC's commissioners for the first time three weeks ago.


In fact, the chairs of both Congressional committees that deal with telecoms issues requested that the rules be put out for public review, as did two of Wheeler's four commissioners, who complained they wanted to publish the documents but were barred from doing so.

Pushed on the topic of publication a third time, Wheeler called the rules a "work in progress." "Why do we not release a rough draft? Because it's a rough draft; it's a work in progress. There's no difference in the result, just the way in which to go about it," he said.

That is seemingly true, with the report suddenly dropping 15 pages to 317 pages following a last-minute letter from Google.

Dissenting commissioner Ajit Pai complained that he could only refer to page counts when discussing changes made to the proposals during their development: "This again illustrates the absurdity of how much I can reveal without violating the rule against sharing non-public information.

"I will say what has been publicly reported is that in response to a last minute submission from a major California based company, an entire core part of the document was removed with respect to broadband subscriber access service."

Pai and fellow commissioner Michael O'Rielly also revealed that there had been a number of revised versions in the past 12 to 24 hours as changes were made all the way up to the vote.

It gets worse

But that's not all. Both commissioners expect changes to be made to the document after it has been formally approved by them, with the "OGC" – office of general counsel – given extraordinary leeway to edit and revise the rules even following formal approval.

That is problematic because "most of the specifics haven't been addressed. They're very vague. Intentionally vague," said O'Rielly. His criticisms appeared to be confirmed when reporters, who repeatedly asked for specifics on the plan from chairman Wheeler and general counsel Sallet, were told repeatedly that those details had not been decided yet.

It is likely that Sallet will start adding new text between now and when the rules are finally sent to the Federal Registry. And no one will know what has changed, with commissioner Pai and O'Rielly pointing out that they will have to keep a constant eye on the documents to see what has been tweaked.

"It will be interesting to see how you figure out how you can write stories about what has just been approved when you aren't allowed to see the details," Pai told reporters after the vote.

Same old

Incredibly, this is not anything new. An academic study of FCC documents going all the way back to 1934 dug into its baffling habit of delaying the publication of official orders long after they had been approved.

Published earlier this month and titled "Administrative Procedures, Bureaucracy, and Transparency: Why Does the FCC Vote on Secret Texts?" [PDF], the report's author Scott Wallsten found that dawdling between approval and publication had actually become the norm at the FCC.

"More controversial orders yield more dissent and longer delays," Wallsten notes, "implying either that commissioners engage in substantive negotiating following a vote or that the commission pays extra attention to the details of an order the more likely the commissioners believe it will be challenged in court."

The secrecy surrounding the net neutrality regulations is something Commissioner O'Rielly has been complaining about for some time, repeatedly pushing within the FCC for documents to be published ahead of meetings, but each time pushed back by the FCC's staff.


Back in August, O'Rielly, a new commissioner, argued that the rules that forbid publication of documents before a vote were leading to "routine confusion" and were a barrier that "can be extremely frustrating for all involved."

"At the very moment that I learn the particulars of an important rule-making upon which I will spend the next few weeks in ex parte meetings listening to stakeholder concerns, I am not permitted to disclose any details of the draft text in order to extract more thoughtful responses," he noted.

In other words, he has to hold meetings to discuss upcoming rules but isn't allowed to tell anyone what is actually in the paperwork being discussed.

O'Rielly sought to change that situation and despite getting what he claimed was positive feedback, the commission's staff found procedural objections to making the documents available.

In a second post last month, O'Rielly noted: "The reason that nothing has happened, I am told, is that there are two basic concerns with the proposal: 1) that it could be harder to comply with the Administrative Procedure Act (APA); and 2) that it could be more difficult to withhold documents under the Freedom of Information Act (FOIA). I do not find either argument persuasive or insurmountable."

He then went into some detail as to why he doesn't feel either legislation should block the provision of information and why he feels the current situation is unworkable.

And again

O'Rielly raised the issue again today after reporters pressed on why no one was allowed to see the net neutrality rules that had just been approved: "I've made a larger push that we make all items that are circulated - that are made available for open meetings - publicly available. We can put them on our website… I've highlighted the arguments that people respond to me with… the truth of the matter is, it's a resource management issue, and under the current rules, the chairman has the right to make those documents available if he so chooses. Here, he chose not to, and I suspect he's going to continue that course of action."

It's unclear whether Wheeler and the FCC's staff recognize the irony that while extending their reach over broadband access in order to protect a free and open internet they are at the same time running processes that go against the very ethos of the network they claim to be protecting.

Pai felt that this was one situation where the chairman's ability to forego secrecy should have been applied: "I would argue that if ever there a reason to depart from that practice, I would argue this is it. It's own proponents say this is unprecedented action. The American people should be able to see what is being decided."

Wheeler did allude to the impact that the spotlight of public attention had had on the FCC. "Let me start the process towards that vote," he noted as he opened his remarks, "by thanking the nearly four million people who participated in this proceeding. You told us you were concerned about the future of the internet, and your participation has made this the most open proceeding in FCC history. Not all of you agreed with each other and not all of you agreed with the action that we are going to take today. But you made our process, and thus our decision, stronger. We listened and we learned."

What Pai and O'Rielly would no doubt argue is that while Wheeler and the FCC's staff may have listened to those in favor of their rules, the dissenting voices – including those arguing that the FCC needs to bring itself into the modern internet era – have so far received much less of a hearing. ®

Broader topics

Other stories you might like

  • I was fired for blowing the whistle on cult's status in Google unit, says contractor
    The internet giant, a doomsday religious sect, and a lawsuit in Silicon Valley

    A former Google video producer has sued the internet giant alleging he was unfairly fired for blowing the whistle on a religious sect that had all but taken over his business unit. 

    The lawsuit demands a jury trial and financial restitution for "religious discrimination, wrongful termination, retaliation and related causes of action." It alleges Peter Lubbers, director of the Google Developer Studio (GDS) film group in which 34-year-old plaintiff Kevin Lloyd worked, is not only a member of The Fellowship of Friends, the exec was influential in growing the studio into a team that, in essence, funneled money back to the fellowship.

    In his complaint [PDF], filed in a California Superior Court in Silicon Valley, Lloyd lays down a case that he was fired for expressing concerns over the fellowship's influence at Google, specifically in the GDS. When these concerns were reported to a manager, Lloyd was told to drop the issue or risk losing his job, it is claimed. 

    Continue reading
  • Google has more reasons why it doesn't like antitrust law that affects Google
    It'll ruin Gmail, claims web ads giant

    Google has a fresh list of reasons why it opposes tech antitrust legislation making its way through Congress but, like others who've expressed discontent, the ad giant's complaints leave out mention of portions of the proposed law that address said gripes.

    The law bill in question is S.2992, the Senate version of the American Innovation and Choice Online Act (AICOA), which is closer than ever to getting votes in the House and Senate, which could see it advanced to President Biden's desk.

    AICOA prohibits tech companies above a certain size from favoring their own products and services over their competitors. It applies to businesses considered "critical trading partners," meaning the company controls access to a platform through which business users reach their customers. Google, Apple, Amazon, and Meta in one way or another seemingly fall under the scope of this US legislation. 

    Continue reading
  • Google recasts Anthos with hitch to AWS Outposts
    If at first you don't succeed, change names and try again

    Google Cloud's Anthos on-prem platform is getting a new home under the search giant’s recently announced Google Distributed Cloud (GDC) portfolio, where it will live on as a software-based competitor to AWS Outposts and Microsoft Azure Stack.

    Introduced last fall, GDC enables customers to deploy managed servers and software in private datacenters and at communication service provider or on the edge.

    Its latest update sees Google reposition Anthos on-prem, introduced back in 2020, as the bring-your-own-server edition of GDC. Using the service, customers can extend Google Cloud-style management and services to applications running on-prem.

    Continue reading
  • FTC urged to probe Apple, Google for enabling ‘intense system of surveillance’
    Ad tracking poses a privacy and security risk in post-Roe America, lawmakers warn

    Democrat lawmakers want the FTC to investigate Apple and Google's online ad trackers, which they say amount to unfair and deceptive business practices and pose a privacy and security risk to people using the tech giants' mobile devices.

    US Senators Ron Wyden (D-OR), Elizabeth Warren (D-MA), and Cory Booker (D-NJ) and House Representative Sara Jacobs (D-CA) requested on Friday that the watchdog launch a probe into Apple and Google, hours before the US Supreme Court overturned Roe v. Wade, clearing the way for individual states to ban access to abortions. 

    In the days leading up to the court's action, some of these same lawmakers had also introduced data privacy bills, including a proposal that would make it illegal for data brokers to sell sensitive location and health information of individuals' medical treatment.

    Continue reading
  • Google: How we tackled this iPhone, Android spyware
    Watching people's every move and collecting their info – not on our watch, says web ads giant

    Spyware developed by Italian firm RCS Labs was used to target cellphones in Italy and Kazakhstan — in some cases with an assist from the victims' cellular network providers, according to Google's Threat Analysis Group (TAG).

    RCS Labs customers include law-enforcement agencies worldwide, according to the vendor's website. It's one of more than 30 outfits Google researchers are tracking that sell exploits or surveillance capabilities to government-backed groups. And we're told this particular spyware runs on both iOS and Android phones.

    We understand this particular campaign of espionage involving RCS's spyware was documented last week by Lookout, which dubbed the toolkit "Hermit." We're told it is potentially capable of spying on the victims' chat apps, camera and microphone, contacts book and calendars, browser, and clipboard, and beam that info back to base. It's said that Italian authorities have used this tool in tackling corruption cases, and the Kazakh government has had its hands on it, too.

    Continue reading
  • SpaceX: 5G expansion could kill US Starlink broadband
    It would be easier to take this complaint seriously if Elon wasn't so Elon

    If the proposed addition of the 12GHz spectrum to 5G goes forward, Starlink broadband terminals across America could be crippled, or so SpaceX has complained. 

    The Elon Musk biz made the claim [PDF] this week in a filing to the FCC, which is considering allowing Dish to operate a 5G service in the 12GHz band (12.2-12.7GHz). This frequency range is also used by Starlink and others to provide over-the-air satellite internet connectivity.

    SpaceX said its own in-house study, conducted in Las Vegas, showed "harmful interference from terrestrial mobile service to SpaceX's Starlink terminals … more than 77 percent of the time, resulting in full outages 74 percent of the time." It also claimed the interference will extend to a minimum of 13 miles from base stations. In other words, if Dish gets to use these frequencies in the US, it'll render nearby Starlink terminals useless through wireless interference, it was claimed.

    Continue reading
  • Brave Search leaves beta, offers Goggles for filtering, personalizing results
    Freedom or echo chamber?

    Brave Software, maker of a privacy-oriented browser, on Wednesday said its surging search service has exited beta testing while its Goggles search personalization system has entered beta testing.

    Brave Search, which debuted a year ago, has received 2.5 billion search queries since then, apparently, and based on current monthly totals is expected to handle twice as many over the next year. The search service is available in the Brave browser and in other browsers by visiting

    "Since launching one year ago, Brave Search has prioritized independence and innovation in order to give users the privacy they deserve," wrote Josep Pujol, chief of search at Brave. "The web is changing, and our incredible growth shows that there is demand for a new player that puts users first."

    Continue reading

Biting the hand that feeds IT © 1998–2022