These 3 judges hold the fate of the Internet net neutrality rules in their hands

These 3 judges hold the fate of the Internet in their hands

By Brian Fung November 24 at 6:15 AM

Next week, a federal appeals court in Washington will hear one of its biggest cases of the year, one whose outcome will directly affect how Internet providers can alter your experience online.

At stake are the government's net neutrality rules banning telecom and cable companies from unfairly discriminating against new or potential rivals. Using their power in the marketplace to control what services consumers can access from their smartphones, tablets and PCs, Internet providers could be granted more latitude to favor preferred Web sites — if the U.S. Court of Appeals for the D.C. Circuit says so.

Three judges from the D.C. Circuit have been named to hear the oral argument on Dec. 4. Much like the Supreme Court, the very makeup of this panel could subtly shape the course of events. What do we know about the judges? Are they familiar with the issues? How might they vote? Below, get briefly acquainted with each one ahead of the big day.

Judge Sri Srinivasan is a relative newcomer to the court, having been appointed by President Obama in 2013. His views on net neutrality and technology aren't clear, making him a bit of an enigma. But we do know this much: He's said to be a rising star. Srinivasan is reportedly on the Democratic Party's shortlist for Supreme Court nominees.

Getting there certainly wasn't easy. While under consideration for the D.C. Circuit post, some liberals attempted to torpedo Srinivasan's nomination because of his past jobs. He'd previously been a legal assistant to the Bush administration and has represented clients such as Exxon on human-rights issues. Here's how Mother Jones described him in 2013:

At a time when Republican obstruction has ground the confirmation process to a halt, and the outspoken progressivism — or even mild progressivism — of prior Obama nominees has run into GOP filibusters, Srinivasan's unclear record offers Republicans few legitimate reasons to block him. It also means that liberals can't be sure that Srinivasan actually shares their views.

When it comes to net neutrality, that last point is just as true today as it was two years ago.

Judge Stephen F. Williams is a senior judge on the D.C. Circuit. Appointed by President Ronald Reagan in 1986, Williams is described by some court-watchers as skeptical of preemptive regulation when after-the-fact antitrust enforcement may suffice. He's written prolifically about regulation, particularly on environmental issues.

That makes Williams an incredibly interesting character. Looking back at some of his articles, it's clear Williams has a nuanced and complex relationship with his job. In "The Roots of Deference," a 1991 book review for the Yale Law Journal, Williams lays out a theory for how judges should interpret federal agency decisions that come before the courts.

This is significant because it's exactly the situation we're in now, with industry groups challenging the FCC's net neutrality rules as unlawful. It's the job of the D.C. Circuit to decide whether the FCC did, in fact, go too far. Though Williams might view regulation more skeptically in general, in 1991 he made a conservative argument for judicial restraint when federal agencies test out certain, possibly controversial, legal theories.

"An agency's caution in one domain may require it to extend itself in another, just as a stretch — going to the edge — in one may enable it to occupy safe territory in another," Williams wrote. He went on:

Courts have a duty in appropriate cases to curb agency lawlessness, and carrying out that duty contributes to sound governance. But just as masons building a cathedral should not supplant the architect, even though both are creating a work of art, a judge should not supplant the politician or administrator though all are seeking sound governance.

In short, it's unwise to make any hard-and-fast assumptions about how Williams is likely to rule in the net neutrality case.

Judge David S. Tatel's key credential here is that he authored the legal opinion that led to this current case. Appointed by President Bill Clinton, Tatel has the unusual distinction of enjoying skiing, marathoning and climbing mountains — while blind. Tatel has a background in civil rights and education law, and once served in the administration of President Jimmy Carter.

Tatel along with two other judges held in 2014 that the FCC misused its powers to impose net neutrality on Internet providers. But they never explicitly said what the FCC should do to get on the right side of the law. That has led to a furious debate over the court's ruling. Partisans on both sides say the court laid out a very clear road map for the FCC; it's just that each side disagrees on what that road map actually said.

That 2014 net neutrality case is known as Verizon v. FCC, and Tatel is the sole returning judge this time, drawing that much more attention to his role in the last round.

Because both sides are claiming to have properly interpreted Tatel's 2014 ruling, everyone's watching to see how Tatel himself will now view this case.

Much as we shouldn't read too much into Williams's conservative leanings, however, we shouldn't conclude that Tatel necessarily has any greater insight to offer on the case than either of his colleagues. Nor should we assume that Srinivasan will side with the FCC just because he's a Democratic appointee who stands to defend his position on the Supreme Court shortlist if he sides with the Obama administration.

That said, knowing the judges' backgrounds ahead of time helps put their questioning — and their decisions — into greater context, making it easier to understand it all later.


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