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The D.C. Circuit Court of Appeals heard oral arguments for the latest net neutrality lawsuit, Mozilla v. FCC, on Friday, but the rehash of the net neutrality debate shows litigation will only continue until Congress writes a clear law ending the debate once and for all.

Mozilla sued the Federal Communications Commission (FCC) about a year ago when the FCC overturned the Obama-era net neutrality rules in December 2017.

The net neutrality rules, established in 2015 by the Obama administration’s FCC, required internet service providers (ISPs) to treat all internet traffic equally — no matter what kind of application, content, platform, website or user. The rules prohibited ISPs from discriminating against applications, content, platforms, websites and users by blocking or throttling traffic. The rules also assume a free and open internet.

Many tech companies favor net neutrality because it assumes a free and open internet, which means tech companies don’t have to pay — or pay as much — for the high volume of traffic they monopolize. For example, Comcast and Netflix squabbled for years over Comcast wanting to charge Netflix more for its bandwidth usage because Netflix comprised so much of downstream internet traffic (up to 40 percent).

Net neutrality, in general, is good for Silicon Valley. Last year, the lobbying group representing tech heavyweights like Amazon, Facebook and Google — the Internet Association — filed an amicus brief in support of Mozilla in Mozilla v. FCC.

Roslyn Layton, visiting scholar specializing in tech policy at the American Enterprise Institute (AEI), thinks this skews the internet economy to benefit Big Tech.

“What it allows Silicon Valley companies to do is use someone else’s network without paying for it,” she said. “Silicon Valley will always be for net neutrality because their price will always be zero. It’s about Silicon Valley putting a rule in place that benefits itself.”

But depending on which party is in power, the FCC will constantly go back and forth on the issue of net neutrality, partly because the definitions are confusing. When the FCC passed net neutrality rules in 2015, the agency classified the internet as a “telecommunications service,” or a service that transmits information from Point A to Point B. Previously, the internet’s classification was “information service,” or a service that provides information or access to information.

The problem is, tech experts vehemently disagree about which kind of “service” the internet is, and many think the internet is both and neither a “telecommunications” or an “information service,” because it fits both definitions so imprecisely.

The definition matters because net neutrality can only apply to telecommunications services.

“The FCC has absurdly tried to separate internet access from functionality that’s necessary to providing that internet access—specifically, caching and domain name (DNS) services,” Electronic Frontier Foundation (EFF) technologists and experts wrote in a Feb. 1 blog post. “As we’ve pointed out before, the FCC’s false distinction between ‘internet access service’ and ‘a distinct transmission service’ is utterly ridiculous.”

Layton agrees that parsing the legal language is ridiculous — which is why Congress should just write a law and end the back-and-forth.

“It was always a bad definition and it’s still a bad definition,” she said. “The FCC has confirmed that the internet is one and both and neither [a telecommunications or information service]. So that’s part of the reason why it needs to come back to Congress. If we write a law that says we’re going to have net neutrality rules and it’s the FCC’s job to regulate that, then I’d be ok with that. But Congress never gave the FCC these rules.”

Furthermore, she said, the back-and-forth hurts innovators and entrepreneurs in the internet economy, another reason for Congress to legislate the issue.

“If you’re an innovator, how would you like every four years if your category gets switched because there’s a different party? Lo and behold the FCC has changed my classification and now I can’t earn money anymore,” she said.

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A study showing zero impact on internet provider investment by net neutrality rules relied on “corrupted” and “made up data,” according to one economist.

The study by the Internet Association, a trade group representing pro-net neutrality companies like Amazon, Google, Netflix, and others found “[n]o negative impact on telecom infrastructure investment, broadband infrastructure investment, or cable infrastructure investment” since the Federal Communications Commission passed the rules in 2015.

Those regulations prohibit internet service providers (ISPs) like AT&T and Comcast from blocking, throttling, and prioritizing web traffic. Conservatives and the industry say the authority the FCC used to pass them — Title II of the Communications Act — is scaring investors away from ISPs and slowing network growth, since Title II could theoretically be used to regulate prices.

Whether the rules are hurting or promoting investment has become the crux of the debate as FCC Republicans and the Trump administration consider repealing the rules. While proponents claim investment is up and opponents say it’s down, the Internet Association study by the group’s chief economist Christopher Hooton is unique in that it claims the regulations have no impact at all.

Hooton’s study also tries to debunk another by economist George Ford of the center-right think tank Phoenix Center showing a drop in investment. Ford later traded barbs with Hooton in a follow-up study, pointing to Hooton’s own admission that he used a “flawed approach” by forecasting investment from 2014 into 2020. Ford said the calculation was in essence “making up” data.

Ford followed up his criticism this week with a second pass at the Internet Association study, and found more examples of inaccurate and fabricated data.

Hooton, in his study, cites data from USTelecom, a trade group made up of executives from companies like AT&T and Verizon, showing U.S. broadband investment from 1996 to 2015. But the data doesn’t match USTelecom’s, according to Ford.

“Dr. Hooton’s analysis of USTelecom’s data on U.S. broadband investment for years 1996 through 2015 employs data that have been corrupted in some way,” Ford wrote. “Dr. Hooton’s results are not consistent with the actual USTelecom data, a fact easily demonstrated.”

Using USTelecom’s original data set with Hooton’s own models, Ford (after “adjusting for inflation and correcting . . . improper definitions of investment”) shows investment down an average of 19 percent since the FCC began debating net neutrality rules in 2010.

Ford also points out changes Hooton made to data on cable industry broadband investment by financial firm SNL Kagan.

“Dr. Hooton fabricates (via interpolation) three-fourths of the data he analyzes from SNL Kagan for cable industry broadband investment,” the study reads. “These data also measure cumulative investment, not annual investment.”

Cumulative investment, Ford notes, is always larger in the future than the past — important because Hooton’s study looks as far into the future as 2020 to draw his conclusions.

“Shockingly, 16 of his 21 data points are fabricated by interpolation,” Ford continues, “so Dr. Hooton has again simply made up data.”

After switching from cumulative to annual investment data and adjusting for inflation, Ford shows cable industry investment down 11 percent since 2015.

The study goes on to note the “only remaining ‘positive’ effect” of the Internet Association study “is derived from investments in roads, canals, bridges, and other transportation infrastructure,” which “has no bearing on net neutrality.”

“While Dr. Hooton deserves credit for attempting to up the ante on the level of analysis by pro-net neutrality advocacy, the errors found in Dr. Hooton’s work are unacceptably numerous and consequential,” Ford said. “No credible advocate would offer the Internet Association’s paper as evidence of anything, with the exception of perhaps a case study on how not to do statistical analysis.”

The Internet Association study has been featured in recent discussions with Democratic FCC Commissioner Mignon Clyburn, who voted for the rules. It’s also been cited by Democrats in Congress supportive of net neutrality like Minnesota Sen. Al Franken.

In January former FCC Chairman Tom Wheeler, the architect of the rules, argued internet provider revenue and stock prices have gone up since the rules were passed, along with venture capital investment in internet businesses — up 35 percent since 2015.

AT&T reportedly told President Donald Trump in January it’s been the country’s leading investor of capital for the last five years, and announced plans in 2016 to deploy roughly 250 percent of the capacity it did in 2013-2014 for 75 percent of the cost.

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A July study that found net neutrality rules have no harmful impact on broadband investment used “made up” data to draw its conclusions, according to another economist.

The study, paid for by the Internet Association (IA), a trade group of top Silicon Valley companies including Amazon, Google, Netflix, and others supportive of the open internet regulations, found “[n]o negative impact on telecom infrastructure investment, broadband infrastructure investment, or cable infrastructure investment” since the Federal Communications Commission adopted the rules in 2015.

Internet Association chief economist Christopher Hooton aimed his study at a number of others backed by net neutrality opponents. Those studies found significant drops in broadband investment since the rules were passed in 2015, with some reporting declines beginning in 2010, when the debate about passing the rules accelerated.

Hooton tries to debunk the latter by economist George Ford of the center-right think tank Phoenix Center. In his study Ford estimates what investment in broadband infrastructure would have looked like had the FCC never proposed classifying broadband as a common carrier service under Title II of the Communications Act (a form of analysis known as a counterfactual).

The authority, used to justify rules against web traffic blocking, throttling, and paid prioritization, potentially subjects internet service providers (ISPs) to tougher regulations like price setting. According to Ford, the threat of price setting and other Title II regulations have driven down broadband investment by $30 to $40 billion and cost the economy 100,000 jobs.

Hooton criticizes Ford’s study for ignoring factors like interest rates, using unrelated control group industries like plastic
and rubber manufacturing to estimate lost investment in the telecommunications sector, and beginning his analysis in 2010, despite the Title II rules not passing until 2015.

The IA economist finds “a clear lack of speculated harms and initial evidence of benefits to markets, consumers, and innovation with both ISPs and edge providers thriving under [net neutrality] rules.”

But Hooton forgoes trying to prove the Obama administration’s claim that the rules would create a “virtuous cycle” of investment, in which the open internet rules promote the creation of new content, apps, and devices, thereby driving the further adoption of broadband and driving up investment and network growth.

“[I]t is important to emphasize that the paper does not investigate the theorized benefits of [net neutrality],” the IA study reads. “[T]he paper does not claim to find a positive causal relationship between the lack of a slowdown in telecom infrastructure investment and the FCC policies – it merely aims to demonstrate the lack of causal impact in either direction.”

It does so, however, by “making up” data, according to a rebuttal paper from Ford out Monday.

“Dr. Hooton’s empirical work suffers from a number of fatal and sometimes shocking defects, including making up a significant part of his data,” the Phoenix Center economist says. “Unfortunately, all his counterfactual analysis is infected with fabricated data, leaving mostly a cursory analysis as meager as the work advanced earlier in the net neutrality debate.”

While Ford’s study stops at 2015, the last year in which accurate investment data is available, Hooton’s study includes a forecasted investment from 2014 into 2020, an approach Hooton himself described as “flawed” in one of his study’s notes.

“The use of forecasted data for impact evaluations is a flawed approach and is included here as a matter of due diligence,” Hooton writes. “As noted, the primary focus of the paper is the 2010 treatment year and impacts calculated from any study for 2015 impacts should be interpreted cautiously given the inherent lag of infrastructure investment decisions and policy reactions (since they are planned in advance).”

In addition to pointing out Hooton’s own admission of using a “flawed approach” that should be “interpreted cautiously,” Ford describes the Internet Association study’s inability to find a positive correlation between net neutrality and investment an “indictment” of the rules, since the FCC justified them based on the “virtuous cycle” theory.

“While Dr. Hooton appears to believe a finding of ‘no effect’ is good news for net neutrality, it is, in contrast, an indictment of policies ostensibly intended to spur increased broadband deployment via the commission’s “virtuous circle” theory of investment,” Ford writes.

Hooton’s research has been the subject of discussions attended by the likes of Democratic FCC Commissioner Mignon Clyburn, who voted in favor of the rules. It’s also been cited by congressional Democrats supportive of net neutrality rules including Minnesota Sen. Al Franken.

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A D.C.-based tech lobby representing Google, Facebook, Twitter and other Silicon Valley giants reached out to Donald Trump’s transition team this week to press the president-elect on pro-tech positions like defending strong encryption — one of the numerous issues valued in the valley the 45th president scrutinized during his campaign.

“Laws that require companies to engineer vulnerabilities into products and services harm personal privacy and endanger national security,” the Internet Association wrote, referring to the push by the FBI and others in national security to make companies build surveillance back doors into consumer encryption products. “Support for strong encryption makes America more secure.”

Trump took a decidely anti-encryption stance after the ISIS-inspired shooting in San Bernardino last year, calling for a boycott of Apple products in Februrary after the company refused to unlock an iPhone belonging to one of the shooters for the FBI.

“Apple ought to give the security for that phone, okay,” the business mogul said. “What I think you ought to do is boycott Apple until such a time as they give that security number. How do you like that? I just thought of it. Boycott Apple.”

The letter came on the heels of a report showing the sixth straight global decline in internet freedom wordwide according to the civil rights group Freedom House. The report notes a crackdown on encrypted communications platforms like WhatsApp and Telegram.

“In an effort to boost their national security and law enforcement powers, a number of governments have passed new laws that limit privacy and authorize broad surveillance,” the report reads. “This trend was present in both democratic and nondemocratic countries, and often led to political debates about the extent to which governments should have backdoor access to encrypted communications. The most worrisome examples, however, were observed in authoritarian countries, where governments used antiterrorism laws to prosecute users for simply writing about democracy, religion, or human rights.”

The report marks a warning for the U.S. if Trump pursues the hardline policy stances he took on tech during the campaign, including a call to shut down portions of the internet in an effort to tackle Islamic extremist radicalization on social media and “open up our libel laws” as a threat to media outlets publishing news critical of the president-elect.

“We’re losing a lot of people because of the Internet,” Trump said last year. “We have to go see Bill Gates and a lot of different people that really understand what’s happening. We have to talk to them, maybe in certain areas, closing that Internet up in some ways. Somebody will say, ‘Oh freedom of speech, freedom of speech.’ These are foolish people. We have a lot of foolish people.”

During “times of protests or due to national security concerns,” 12 out of 65 countries blocked WhatsApp entirely in 2016, disabling the service for millions. Other services including Telegram, Viber, Facebook Messenger, LINE, IMO, and Google Hangouts were “regularly blocked,” and 10 countries restricted access to internet voice and video platforms like Skype and FaceTime, in part to protect the business models of traditional telecommunications companies.

In its letter the Internet Association urged Trump and the 115th Congress to update the Electronic Communications Privacy Act to require a warrant for Americans emails even after they’re 180 days old — the subject of a contentious court battle Microsoft won over the Justice Department in July — and reform surveillance authorites used to justify some of the National Security Agency’s most aggressive programs.

“Passage of the USA Freedom Act is a positive step, but it addressed only a limited subset of surveillance concerns,” the letter reads. “Congress should consider reforms to Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333, which have been used in ways that are inconsistent with the important privacy values reflected in the Constitution and lack due consideration for the privacy interests of non-U.S. persons.”

Executive Order 12333 lets NSA execute “back door” warrantless searches on Americans’ email and telephone communications by surveilling data incidentally swept up during the targeting of foreign communications, and Section 702 authorizes “upstream” surveillance programs — when the signals intelligence agency taps the physical infrastructure of the internet, such as undersea fiber cables, to surveil the content of foreigners’ communications, including emails, instant messages, etc., as they exit and enter the U.S.

Section 702 of the FISA Amendments Act will face congressional renewal in December 2017.

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When the Supreme Court decides in October whether Apple is entitled to the total profit of Samsung smartphones for infringing on Apple patents, the ruling could stretch from Silicon Valley into America’s heartland.

If the nation’s highest court upholds both federal district and appeals court decisions ordering Samsung to turn over its total profit from select Galaxy smartphones for infringing on three Apple design patents, the fallout in patent litigation will have an especially hard impact on the farming sector, an industry expert said Tuesday.

Leroy Watson of the agriculture non-profit National Grange said the subsequent wave of patent trolling predicted by numerous experts would have a severe impact on the next generation of telecommunications-equipped farming equipment.

The threat of a lawsuit for the total profit from the sale of such equipment, which commonly serves only a niche market of non-wealthy consumers, will deter innovators from developing those products, setting the agriculture industry technologically back by a generation, according to Watson.

“So we’ve got a market where the aesthetic value of the design is going to have almost no impact on the decision maker, i.e. the farmer, to purchase products,” Watson said. “We think the possibility — that entrepreneurs who are helping put together these products are going to have to take into account design function issues — is going to be an impediment on the opportunity for these products to hit the market and meet the needs of farmers.”

The 19th-century patent law at issue entitles Apple to the total profit of Samsung’s infringing line of Galaxy smartphones, initially over $1 billion, despite violating only three design patents — a penalty unique to design patents, which differ from utility patents.

That means a patent troll could potentially sue the manufacturer of a piece of farm equipment simply for incorporating a similar aesthetic feature from an existing design patent, like the carpet on the floor of a tractor, for example.

Watson added the potential effects will hurt the U.S. especially compared to its international trade competitors, since agriculture is a global industry.

“The most common job description on the planet is ‘farmer,'” Watson said. “So if we get this wrong and we create a system where there is the possibility of speculative litigation arising from the possibility of total profit disgorgement for design features, I can pretty much assure you that other nations are going to watch that.”

Many of those nations rely on their agricultural industries much more than the U.S., likely prompting them to correct any similar flaws in their own intellectual property laws and squeeze out the U.S. as a competitor.

“So we see not only discouragement of the possibility of innovation by entrepreneurs serving the rural and farming market,” he continued, “but almost no impact upon our competitors, and they’re going to be able to take advantage of these technologies without the overlying risk of design patent litigation.”

Watson, one of several panelists invited to discuss the case by the Internet Association — which filed a brief with the court in support of Samsung — wasn’t alone in his ominous predictions.

Charles Duan, director of the Patent Reform Project at the consumer technology non-profit Public Knowledge, pointed out even a manufacturer doing lengthy homework on existing design patents before marketing a product isn’t any safer, since design patents can be changed after they’re submitted to the U.S. Patent and Trademark Office — another feature unique to design patents.

“You might claim the entire cup in your original patent application, but then you see somebody who’s got maybe a different looking cup, but the bottom looks the same, so you say, ‘Just erase the top part, we’re only covering the bottom part,'” Duan explained. “Now you suddenly have a patent for somebody else’s cup.”

“You can’t avoid it, because the person who has the patent can always look at your product and after the fact say, ‘That little part is going to get me all your profits,'” he said.

Nike, though it claimed a neutral stance in its brief to the court, had attorney Howard Hogan on hand as the only panelist to defend Apple. Hogan maintained that design was a limitless field from which designers could pull original ideas, citing Nike’s thousands of throwout designs for every one product that goes to market — products that are often copied and counterfeited.

Hogan added that far from encouraging patent trolls, the law — unaltered by Congress since 1887, despite several overarching patent legislation overhauls — protects small designers.

“What about individual designers? People sitting in studios, garages, living rooms coming up with innovating designs,” Hogan said. “Somebody takes their design and rips them off, should the remedy be limited to a litigant who’s rich enough to afford a damages expert and a survey expert to survey consumers as to whether they are buying the accused product based on the design or some other functional aspect?”

“It’s going to make the remedy exponentially more expensive to enforce.”

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