Tech Policy and the Midterm Elections

Roslyn Layton OCTOber 2018

AMERICAN ENTERPRISE INSTITUTE Executive Summary

onsidering the 2018 midterm election, this is a Surveys and conventional wisdom on elections Ctimely opportunity to review the key accomplish- suggest that voters focus on topline issues such as the ments of technology policy in the past two years. Both economy, education, health care, and security. More- political parties laid out goals in their respective plat- over, Democrats and Republicans have considerable forms for the 2016 presidential election. After a brief agreement on most tech policy issues. While this overview of the midterm elections, this report reviews bipartisanship has fostered effective policymaking the progress made on both sets of goals and key tech and American preeminence in the technology indus- policy accomplishments by the Federal Communica- tries over the years, it offers limited points of differ- tions Commission, the Federal Trade Commission, ence during elections. the presidential administration, and Congress. The report also examines the salience of tech pol- The report also reviews arguably the two most icy as a wedge issue and tech policy communication salient tech policy issues in the midterm cycle: net as it relates to the midterms. Additional issues such neutrality and online privacy. Following claims by as mergers, international internet regulation, dig- policymakers, advocates, and journalists that net neu- ital trade, political bias on software platforms, and trality internet regulation will be a defining issue for online election security have also emerged in the the 2018 midterm election, this report investigates midterm debate, but these are outside the scope of tech policy’s role in the midterms using theories of this report. This report does not endorse a political political science, historical midterm statistics, and party or candidate. other political dynamics.

Roslyn Layton

ech policy is the set of norms, rules, regulations, Globally, the tech industry topped $4.5 trillion in Tand institutions that govern technology indus- revenue in 2017 and is expected to reach $4.8 trillion tries. More generally, tech policy is a set of principles in 2018. The US is the single-largest tech market in and actions about technology, the way in which goods the world and accounts for 31 percent of the global and services are produced in an economy.1 It is a syn- tech market. The US tech economy was $1.6 trillion in thesis of the official strategic efforts to promote specific 2018, 9.2 percent of GDP.9 The numbers are even more sectors of the economy through scientific and indus- staggering from an equities perspective; the American trial policy and broader economic and social policy. tech industry accounts for a quarter of the value of the The intellectual origins of tech policy include Frie- US stock market, some $34 trillion.10 There are half a drich List’s argument for national support of “infant million tech companies in the US, with 34,000 new industries”2 and Alexander Hamilton’s Report on the startups in 2017 alone.11 Subject of Manufactures in 1791, which advocated for modernizing the American economy to break economic dependency on slavery in the South and super- The 2018 Midterm Election sede England in manufacturing.3 Economist Thorstein Veblen is credited with introducing the German con- Midterm elections are held two years after the pres- cept of die Technik into American discourse as “tech- idential election. All 435 seats in the House of Rep- nology,” meaning more than just the useful arts but resentatives and 33 seats in the Senate are up for the practices and principles in the “state of the indus- election. Additionally, 34 state governors are up for trial arts.”4 He is also credited with coining the term reelection, including Vermont and New Hampshire, “technological determinism,” suggesting that soci- which have only two-year terms for governors. The ety’s technology drives the development of its social other 48 governors serve four-year terms. Further- structure and cultural values.5 more, 35 state attorneys general, key legal actors in Tech policy is also intertwined with military each state, are also up for election in 2018. In many research and development (R&D), though a full dis- states, the ballot features elections for state legisla- cussion is out of scope here. About 1.5 percent of gross tures, local officers, and initiatives. The election will domestic product (GDP) goes to R&D efforts focused be held November 6. on “maintaining strategic technological advantages The midterms are frequently described as a refer- over potential foreign adversaries.”6 Recent examples endum on the president and his party. Since the 1840s, include Congress’ recent reauthorization and budget political scientists have observed that the president’s increase for NASA7 and the president’s announce- party generally loses seats in the midterm election, ment to launch a sixth branch of the military, the often called the “presidential penalty.”12 In rare cases, United States Space Force.8 the president’s party has netted gains, but the average

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net loss is 30 seats in the House and four seats in the Center reports that voters are more focused on Con- Senate.13 Since 1946, the average loss for the presi- gress and the presidency than in past midterms. A dent’s party when his approval is below 50 percent is record 68 percent of survey respondents say the vote 36 seats in the House; when approval is above 50 per- is about the party that controls Congress, and 60 percent, the average loss is 14 seats.14 cent say they will vote as a referendum either for or Instead of a midterm penalty, some researchers against the president.25 note that there could be a midterm reward. Research Another suggestion for the differences in presi- examining the 2009 midterm found that districts dential and midterm years is that there are two elec- where people evaluated their own lives in more hope- torates: a smaller, older cohort of Americans that ful terms were more likely to reelect incumbents.15 leans Republican and reliably votes in both mid- To date, the highest loss of party seats in the terms and general elections and a larger, younger House of Representatives was 77 seats in 1922, fol- cohort that leans Democrat but tends to vote only lowing the election of Republican President War- in the general.26 ren Harding.16 For the Senate, a record 13 seats were Along that same vein, another theory is that the flipped in Dwight D. Eisenhower’s second term two electorates are split along the lines of education, in 1958.17 In 2010, 63 House seats were flipped to those with higher education and those without. Pat- Republicans.18 rick Ruffini of Echelon Insights, a firm specializing Presently, there is a razor-thin margin in the Senate in polling, election analytics, and data intelligence, with 51 Republicans, 47 Democrats, and two indepen- notes, “Usually in midterms there is a turnout drop dents who caucus with the Democrats. In the House, off with 1) younger voters and 2)non-college edu- Republicans are defending 40 open seats; Democrats, cated voters. The dropoff with #1 favored the GOP. 20.19 Democrats need to net only 24 seats to win the The dropoff with #2 didn’t matter, until 2016, and majority. As of this writing, political experts observe now it could hurt the GOP.”27 that polls are so close that it is difficult to predict a While reviewing the history and statistics of mid- clear party winner.20 term elections is interesting, it tells us little about Midterm elections tend to have lower turnout than the role of tech policy in elections. A later section presidential elections. James Campbell’s seminal explains some theories of the role of policy in elec- “surge and decline” theory of elections suggests that tion. But first, a review of the parties’ 2016 tech policy a surge of interest and information during presiden- platforms is in order. tial elections helps one party, while the voters of the disadvantaged party are more likely to stay home.21 Campbell argues that voter turnout in midterm elec- 2016 Tech Policy Platforms tions declines as interest returns to normal levels and patterns. Republicans’ and Democrats’ respective tech policy The 2014 midterm marked the lowest voter turn- positions were described in their 2016 party platforms out in 72 years; just 36.4 percent of eligible voters and in subsequent communications. Both parties’ participated.22 In the 2016 presidential election, platforms describe the importance and role of tech- 58 percent did. For 2018, one predictive analytic model nology in employment, education, innovation, part- based on patterns from 2012 to 2016 indicates there nerships, and infrastructure investment. Both sides will be a drop of 39.8 million voters from the 139 mil- also recognize the importance of broadband, 5G, the lion who voted in 2016, about a 29 percent drop.23 Internet of Things, intellectual property, outer space, However, interest in politics has not declined in cybersecurity, and online privacy. 2018, with many new voter registrations and enthusi- The 2016 platforms offered a road map to voters asm strong in both parties,24 suggesting that turnout as to how each party would address key tech policy in November could be different. The Pew Research issues. For example, it was clear that Republicans,

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should they win the presidency, would protect inter- women and people of color, promote inclusion, net freedom, returning to the light-touch bipartisan attract and retain talented people from all over the framework that governed the internet until 2015. world, and empower people with disabilities.32 They charged that President Barack Obama subju- Republicans celebrate technology’s creative and gated the internet at home and abroad “to agents of disruptive capacity to challenge legacies and create government,” as he “ordered the chair of the suppos- new markets. They desire that government be a part- edly independent Federal Communications Com- ner with individuals and industries in technological mission to impose upon the internet rules devised progress, not a “meddlesome monitor.”33 They advo- in the 1930s for the telephone monopoly” and “uni- cate for a business climate of risk and reward and a laterally announced America’s abandonment of the fair and open global market that protects data privacy, international internet by surrendering U.S. control fosters innovation, and ensures the free flow of data of the root zone of web names and addresses.”28 across borders. Republicans want the government to Democrats declared that they “will oppose any effort incentivize spectrum access, the sharing economy, by Republicans to roll back the historic net neutral- and on-demand platforms; modernize federal infor- ity rules that the Federal Communications Commis- mation technology systems; and recruit skilled pro- sion enacted last year.”29 The parties’ actions since fessionals to work in government. the 2016 election have been consistent with their stated positions. A review of the official Democratic and Republican policy statements highlights the differences between Bipartisan policy the parties and how they see the role of technology. In general, Democrats excel at distilling their posi- incorporates different tion into a single sentence—a bumper-sticker credo so to speak. The GOP’s explanations are longer but perspectives and have more concrete and detailed policy positions. Moreover, Republicans frame many of their positions ultimately provides within the context of the Constitution. For Democrats, science and technology are ends more lasting, in themselves. Democrats offer a unique policy cat- egory to describe science and technology, noting sustainable solutions. government’s specific role to plan the technological economy, educate students, and ensure employment A policy that incorporates these many virtuous for workers.30 aspects from both parties would be optimal. Indeed, Republicans, on the other hand, espouse a foun- this has been the case for much of tech policy’s suc- dational set of principles instrumental to all fac- cess to date. Bipartisan policy incorporates different ets of life: freedom, the protection of property, the perspectives and ultimately provides more lasting, rule of law, and limited government. They believe sustainable solutions. The differences between the this foundation is good for making policy across the parties become more visible, however, as the discus- board, including tech policy. The GOP also asserts sion moves away from general topics such as tech- the problems of international internet tyranny and nology to more specific policy issues. the US government being woefully out of date on For instance, Democrats and Republicans dif- technology.31 fer in their approach to rural broadband and clos- Democrats extoll the social value of technology in ing the digital divide. Democrats advocate creating everyday life, particularly for community participa- a national infrastructure bank to provide loans and tion. They maintain that tech policy should support assistance for broadband deployment.34 Republicans

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argue that companies would be more likely to deploy 14 data privacy and security cases, and launched a networks if regulations were not so onerous.35 national campaign to identify occupational licensing In the 2016 platform, Democrats pledged to con- restrictions that threaten economic liberty. Some of nect every home in America and offer free Wi-Fi.36 the success can be attributed to FTC commissioners’ Republicans claimed that the government has spent seven-year terms, which allow stability and continu- tens of billions of dollars on broadband subsidies over ity, but the record is also remarkable with just two decades but has failed to realize universal broadband commissioners at the helm during this period. coverage and that rural America has been harmed Enlightened chairmen from both parties have cre- as a result. They note that from 2014 to 2016, some ated a constructive work culture, demonstrated by 10 million Americans canceled their wireline broad- the agency’s consistently improving score since 2011 band subscriptions, suggesting that consumers are in the “Best Places to Work in the Federal Govern- increasingly choosing wireless technologies. They call ment” survey.40 The agency ranks fourth in midsize for a public-private partnership on rural broadband to federal agencies and first in “Employee Engagement solve the problem.37 and the New Employee Inclusion Quotient in 2017.”41 While tech policy encompasses a range of issues, Notably high scores have also been achieved during the respective party platforms discuss innovation and political turmoil and a government shutdown.42 entrepreneurship, broadband, internet regulation, The FTC’s many actions and enforcements prove intellectual property, outer space, cybersecurity, online it is fully capable to regulate the broadband ecosystem privacy, and scientific R&D, particularly for the mili- with regard to net neutrality, as an interagency mem- tary. Historically, these areas have been largely bipar- orandum of understanding attests.43 Importantly, tisan, making them poor midterm campaign issues the FTC can secure financial redress for consumers, because there are few points of policy difference. unlike the FCC. The FTC recently issued its first Office of Claims and Refunds annual report detailing how the FTC’s Bureau of Consumer Protection obtained FTC Accomplishments 168 court orders for more than $12.72 billion between July 1, 2016, and June 30, 2017.44 The Federal Trade Commission (FTC) plays a key This includes settlements with several major com- role in tech policy, ensuring competition and con- panies,45 including the landmark settlement with sumer protection across the digital ecosystem by Volkswagen over the carmaker’s installation of soft- policing unfair and deceptive practices. To put ware, which allowed it to cheat emissions regula- the FTC’s value into perspective, half its budget is tions.46 Following FTC action, a federal court ordered focused on consumer protection. Consider that Dish Network to pay $280 million for alleged viola- the FTC processes about 10 times as many robo- tions of telemarketing rules.47 The FTC and 32 state call complaints, the leading consumer complaint in attorneys general settled with Lenovo over charges the digital communications domain, as the Federal that the company harmed consumers by preloading Communications Commission (FCC) does.38 The software on some laptops that compromised secu- FTC is clearly a workhorse of consumer protection rity protections to deliver ads to consumers.48 A set- and complaint adjudication, which is how most con- tlement with Uber Technologies Inc. required the sumers know the agency. company to implement a comprehensive privacy Over the years, the FTC’s accomplishments have and auditing program.49 The FTC also obtained a been considerable, but the agency showed particu- $650,000 settlement with the electronic toy manu- lar leadership in the past two years.39 In 2017 alone, facturer VTech over allegations of violations of chil- the FTC brought 10 competition cases to court, took dren’s online privacy laws.50 Online tax-preparation action on 25 other competition cases, brought or service TaxSlayer and “revenge porn” website MyEx settled 109 consumer-protection matters, brought were also charged.51

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The FTC’s small business and data security round- • Deterring unfair and deceptive conduct in pri- tables and business guidance programs help enter- vacy and data security matters; prises understand and comply with the law.52 Internal process reforms in the agency’s Bureau of Consumer • Determining the competitive effects of corpo- Protection are underway,53 as is a long-overdue rate acquisitions and mergers; streamlining of the requirements under the Fur, Tex- tile, and Wool Labeling Rules.54 Acting Chairwoman • Asssessing the role of intellectual property and Maureen Ohlhausen also launched the Economic competition policy in promoting innovation; Liberty Task Force with national and state partners and to reduce onerous occupational licensing requirements, which have deterred many Americans from • Strengthening consumer welfare and the use of earning income as hair braiders, flower arrangers, algorithmic decision tools, artificial intelligence, and so on.55 and predictive analytics. The tech press largely ignored this impressive list of accomplishments. One article that did review them Such an inquiry was last undertaken in 1995 under concluded that the FTC was not up to task and sug- FTC Chairman Robert Pitofsky.59 gested that it was not doing enough on tech policy,56 despite the roundtables held on artificial intelligence, blockchain, identity theft, connected cars, and data FCC Reauthorization and Accomplishments privacy.57 This journalistic view may reflect an ideo- logical preference for regulatory agencies to deliver Oversight of federal agencies is a basic function of predetermined outcomes even though that falls out- Congress. A subset of oversight, authorization, is a side the organization’s statutory mandate. FTC lead- formal certification that the agency fulfills its charter ers are required to fulfill the organization’s mission and, in many cases, a legal process for appropriation without overstepping the rule of law. of funds. After some 30 years and Rep. Greg Walden’s For an agency with a $300 million budget and (R-OR) promotion as chairman of the House Com- 1,100 employees, taxpayers get value for money. Even mittee on Energy and Commerce, the FCC has finally greater efficiency and results can likely be achieved been reauthorized in a bipartisan fashion. The reau- by strengthening the role of economics and empirical thorization bill was eponymously named the RAY analysis in the FTC’s work. BAUM’S Act to commemorate the veteran staff Upon taking office, Chairman Joseph Simons adviser to the House Energy and Commerce Commit- announced an inquiry on competition and consumer tee. Among other things, the bill: protection in the 21st century.58 Areas of focus include: • Approves transparency and efficiency reforms at • Improving communications, information, and the agency, media technology networks; • Identifies more licensed and unlicensed spec- • Identifying and measuring market power and trum for private-sector use, entry barriers; • Covers the shortfall promised to relocate broad- • Evaluating collusive, exclusionary, or predatory casters being displaced following the successful conduct in “platform” businesses; incentive auction,

• Studying the intersection of privacy, big data, • Fixes the spectrum auction deposit so the FCC and competition; can post funds directly to the US Treasury,

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• Directs the FCC to craft a national policy for areas that would not be served without government unlicensed spectrum, and support.64 Additionally, the Connect America Fund Phase II will provide up to $2 billion for rural fixed • Empowers FCC and law enforcement to stop broadband over the next decade.65 robocalls.60 Chairman Pai also launched the Broadband Deployment Advisory Committee, a diverse multi- The bill signifies the accomplishment of an essen- stakeholder group of five subcommittees targeted to tial and long-overdue responsibility of Congress, to address infrastructure deployment in municipalities evaluate the effectiveness of the FCC. and states, competitive access to broadband infrastructure, the regulatory barriers to broadband, and Digital Empowerment and Closing the Digital federal siting.66 Based on this broad-based input, the Divide. Upon becoming FCC chairman in 2017, Ajit actions of at least 20 states to make model codes for Pai made digital empowerment the goal of his ten- infrastructure rollout,67 and existing statute, the FCC ure.61 His Digital Empowerment Agenda is based on has accelerated the transition to next-generation four pillars designed to increase access to broadband broadband networks. It has modernized rules about and unlock digital opportunities for job creation and utility poles and conduits, revised rules that deter civic engagement: opportunity zones, mobile broad- companies from replacing copper with fiber,68 and band in rural areas, regulatory barriers to broadband, established shot clocks to ensure that permissions and entrepreneurship and innovation.62 These goals to deploy infrastructure are reviewed without undue address network availability and affordability, the delay.69 Modernizing infrastructure rules can elim- readiness of users and communities, and relevance inate 80 percent of the regulatory costs of deploy- of services. ing small cell wireless facilities, cut deployment times in half, and enable more Americans to get next-generation wireless broadband.70

While building networks US Leadership in 5G and Other Broadband Technologies. Promoting 5G, the fifth-generation is important, networks mobile wireless standard, is an FCC priority.71 5G offers 10–100 times the speed and throughput of cur- are not ends in rent 4G networks, low latency or lagtime to enable technologies such as remote surgery and autonomous themselves. The greater vehicles, and a subsitute for fixed line networks.79 The FCC’s strategy includes allocating spectrum, value will be realized speeding up infrastructure deployment, and reducing regulatory barriers.78 The FCC has moved to get when people adopt 5G more spectrum in the pipeline at high and low fre- quencies and the mid-band, or the “Goldilocks band,” network services. because it has the optimal mix of physical character- istics to cover distance, allow throughput, and pene- Under Chairman Pai’s leadership, the FCC has trate buildings.72 The 5G spectrum auctions will begin been busy streamlining rollout requirements to max- in November.73 imize investment in broadband infrastructure in both Additionally, the FCC established new rules on wireless and wireline networks.63 The FCC’s Mobility the 3.5 GHz band,74 which protect national defense Fund has allocated up to $4.53 billion over the next radar from interference while allowing flexible wire- decade to advance 4G/LTE service, primarily in rural less broadband use. Notably, cable providers will use

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the 3.5 GHz (Citizens Broadband Radio Service) to FCC adopted a transparency rule that requires all its expand internet coverage to unserved areas.75 meeting materials to be publicly available three weeks While building networks is important, networks before commission meetings. This rule has proved are not ends in themselves. The greater value will so effective that it has been proposed as legislation be realized when people adopt 5G network services. in Congress.81 As such, the application and service development The FCC also proposes to eliminate a report that it ultimately will matter more, but the actual network no longer uses but that fulfills a 50-year-old require- deployment is a necessary and urgent prerequisite. ment for Form 325, which has not been updated in 20 years. The report requires cable operators to col- Public Safety. The FCC has advanced important lect and submit to the FCC subscriber numbers, measures for public safety. These include improv- equipment information, plant information, frequency ing the geographic targeting for Wireless Emergency and signal distribution information, and program- Alerts with requirements to support the use of “click- ming information. The commission also proposes to able” embedded links in alerts so that consumers can liberate the toll-free 800-number market from its ear- easily access additional emergency information. The lier first-come, first-serve system to an auction and new “Blue Alert” notifies the public about threats to secondary market model to improve the efficient allo- law enforcement and helps apprehend dangerous sus- cation of toll-free numbers.82 pects. Following the devastating 2017 hurricanes, Ajit Pai traveled to Puerto Rico and the US Virgin Islands and proposed $954 million to restore and expand net- Other Tech Policy Developments works to the islands.76 FCC Commissioner Michael O’Rielly has led the President Trump issued a legislative outline for crackdown on 911 fee diversion, exposing states that rebuilding the nation’s infrastructure by reforming its have illegally siphoned millions of dollars dedicated financing, permitting, and workforce development.83 for 911 emergency service for other purposes.77 The His plan prioritizes broadband with incentives for FCC voted in September 2018 to consolidate its dis- local and private parties to invest in completing and parate 911 rules78 and adopt measures to realize Kari’s operating rural infrastructure projects. The proposal Law, a bipartisan bill signed by President Donald also suggests improving the flexibility and eligibility Trump requiring multiline telephone systems to have for private access bonds, specifically for rural broad- direct access to 911 calls. The law is named for a Texas band infrastructure. woman who was killed by her husband in 2013. The The president also issued an executive order woman’s young daughter could not directly access 911 focused on streamlining and expediting the process from their motel room phone without first dialing 9.79 and a memorandum supporting towers managed by the Department of the Interior.84 Moreover, the Process and Regulatory Reform. The FCC took House Subcommittee on Communications and Tech- action to eliminate paperwork burdens imposed on nology has had at least two hearings on rural broad- regulated companies costing more than $800 million band,85 and seven bills are under review in the House a year, ended the business data services proceedings and Senate.86 that had been open for 12 years, streamlined account- A related issue for broadband infrastructure and ing rules that forced providers to maintain two sets general technology investment is the Tax Cuts and of books, and eased reporting burdens for volunteer Jobs Act, the first major tax reform in over 30 years, board members of noncommercial broadcasters.80 signed into law on December 22, 2017.87 Tech com- Additionally, following prior administration experi- panies are the largest American companies and can ence in which meeting materials would not be made repatriate significant funds currently held abroad. In available to commissioners in time for voting, the the longer term, tax reform could support a higher

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level of investment, and this is important for the tele- to offer advertising-supported content on the same com sector, which invests more in the American econ- conditions as Google and Facebook.94 While the omy than any other sector.88 2015 FCC declared that ISPs required different and Separately, the Senate has driven a long-needed stricter online privacy rules, privacy breaches have reform for the broadband program of the United mainly occurred on the leading online platforms, not States Department of Agriculture (USDA) Rural Util- ISPs, and platforms have far more data and insight ities Service (RUS) to focus federal funding more on users than ISPs do. appropriately to unserved areas, rather than over- During the Obama administration, Silicon Val- building existing networks. The legislation directs ley companies were celebrated as national treasures. the RUS to confer with the FCC and the National But in 2018, many of these companies have come Telecommunications and Information Administra- under scrutiny by both political parties, particularly tion (NTIA) and includes transparency and notice regarding online privacy. Several tech company CEOs processes. This will help provide the USDA with the have been called to congressional hearings. A recent latest information about broadband availability and poll reports that two-thirds of older Americans (age guard against waste, fraud, and abuse.89 53–72), the demographic that reliably votes in all elections, want tech companies to be regulated like big banks, even though respondents overall have some Major Tech Policy Issues doubts about whether governments can successfully regulate such firms.95 This section covers the two tech policy issues that In any event, Democrats and Republicans have have received the most attention during the election demonstrated a desire to make consistent online pri- cycle: online privacy and the debate between internet vacy legislation. Draft bipartisan legislation on online freedom and internet regulation. privacy has been introduced.96 Importantly, the bill from Sens. Amy Klobuchar (D-MN) and John Ken- Online Privacy. In March 2017, Congress restored nedy (R-LA) includes a safe harbor for innovative broadband privacy protections at the FTC.90 The privacy-enhancing technologies, protecting inventors protections had been in place for decades but were from being punished for experimentation in proving torpedoed by the 2015 FCC Open Internet Order.91 the privacy design of their systems. For some nine months, consumers were left with no While there is potent media hype about online broadband protections, so internet service providers privacy, Americans overall report nuanced views, (ISPs) voluntarily maintained the FTC privacy stan- describing the value they enjoy from a multitude of dards in the meanwhile. The FCC’s new online pri- connected services and devices.97 This suggests that vacy rules were written and adopted on a party-line an exchange for sharing data is reasonable. To better basis without establishing a record of harm or show- understand how consumers view the issues, the FTC ing that the FTC was deficient in policing the area. launched an in-depth investigation into competition While many tech journalists maligned the and consumer protection in the 21st century, espe- removal of the FCC’s rules and the restoration of cially the intersection of privacy, big data, and com- the FTC’s jurisdiction,92 the one-sided rules would petition and the FTC’s remedial authority to deter have created confusion for consumers, applying dif- unfair and deceptive conduct in privacy and data ferent regulations on the same service. Whether the security matters.98 rules were applicable depended on the kind of com- Meanwhile, the White House has tasked the NTIA pany the FCC could regulate, an arbitrary distinc- to request comments on a proposed approach to tion for consumers.93 Moreover, the rules created consumer data privacy.99 The goal is to create prin- a barrier to entry in the oligopolistic online adver- ciples that protect individuals while giving organiza- tising market. For instance, ISPs were not allowed tions legal clarity and the flexibility to innovate. It is

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part of a larger transparent process to modernize US 2015. Entrepreneurs and investors enjoyed the free- data privacy policy, harmonize international regula- dom to experiment and deploy new network technol- tion, and support the National Institute of Standards ogies. This led to $1.6 trillion in private broadband and Technology’s development of a voluntary privacy infrastructure investment, a staggering figure that framework based on scientific principles similar to accounts for a quarter of the world’s total outlay for cybersecurity. The principles can inform legislative the period.103 efforts in Congress. With internet freedom, multiple broadband tech- Regrettably, California has developed its own nologies (e.g., mobile wireless, fixed wireless, sat- online privacy legislation, which frustrates a com- ellite, fiber, cable, and DSL) compete at scale, as no mon standard and expectation for all Americans who one network is perfect for every use or user. There is have enjoyed consuming online services across the a high degree of symbiosis and convergence between 50 states. Its new online privacy law falls into the pre- technologies and platforms. Consumers enjoy a vari- dictable pseudo-consumer-friendly trap of substitut- ety of business models to connect to the internet, par- ing regulatory compliance over user education and ticularly free and reduced-cost options sponsored by technology innovation. third parties or the ISPs themselves. As can be seen with more than a decade of mis- guided data-protection regulation from the European Union, including the recent General Data Protec- tion Regulation (GDPR), consumers do not report The perverse outcome a greater sense of trust online, nor have small- and medium-sized companies significantly entered digital of heavy-handed markets. The perverse outcome of heavy-handed rules is that large, established companies are strengthened rules is that large, at the expense of startups.100 The scientific research on data protection and established companies privacy suggests that consumer education and privacy-enhancing technologies are essential to cre- are strengthened at the ating trust online,101 but these inputs are noticeably absent in both the GDPR and the California Con- expense of startups. sumer Privacy Act. Congress can enable the con- tinued prosperity of the information economy by Under internet freedom, consumers and inno- ensuring that consumers can access privacy educa- vators enjoy a common set of protections and com- tion to make informed choices, that safe harbors for petition standards delivered by the FTC. Limiting privacy-enhancing innovation protect the testing the FCC’s role to make internet policy is important and learning for new technologies, and that common because sector-specific agencies are highly subject to standards for competition and consumer protection capture by parties wanting to secure advantages by online are equally guaranteed for all Americans.102 regulating their competitors.104 Internet regulation, or net neutrality, is a policy Internet Freedom vs. Net Neutrality. Republicans equating all data, regardless of the value to the user. and Democrats differ starkly on internet freedom and Under net neutrality, the telecom regulator sets broad- net neutrality. Internet freedom recognizes the sov- band’s price, speed, and technology with the goal being ereignty of consumers, not regulators, to decide their a national, government-owned broadband monopoly. preferred parameters of broadband (price, technol- Net neutrality advocates claim that ISPs require ogy, quality, security, durability, mobility, etc.). It was special rules to stop them from blocking or throttling the prevailing bipartisan policy in the US from 1996 to Silicon Valley innovation. But there are few examples

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of actual harm to justify such prescriptive rules, and to three years in which the FCC indicated its plans antitrust laws are already sufficient to punish, if not to regulate networks, there was less consumer sov- preclude, such behavior. Indeed, ISPs’ very business ereignty, innovation, and investment.110 Compar- models are based on building the networks for Amer- ing two years before and two years after the Open icans to access the products and services of Silicon Internet Order, the FCC itself reports that new wire- Valley, and Silicon Valley takes the lion’s share of line broadband deployments declined by 55 per- the connected industry’s stock performance, reve- cent, and wireless broadband deployments declined nue, profitability, and growth.105 The New York Times by 83 percent.111 A counterfactual analysis suggests reports that the real threat to Silicon Valley is not that the marketplace suffered an opportunity cost of the nation’s 4,551 ISPs, but Chinese internet giants, $30–$40 billion annually because the FCC precluded including Alibaba and Tencent, which make the US two-sided market development.112 players look tame by comparison.106 US Telecom offers numerous reports and anal- Net neutrality is an amorphous but powerful ysis on broadband infrastructure investment and concept that the FCC has used to enact rules, even demonstrates a correlative effect with the imposi- though the FCC does not have the statutory author- tion and repeal of the internet regulation. Broadband ity to regulate the internet. During the Obama years, infrastructure investment peaked at $73.6 billion in the FCC saddled the Comcast-NBCUniversal and 2014, fell to $73 billion in 2015, and then plummeted Charter–Time Warner Cable mergers with net neu- $2.4 billion to $70.6 billion in 2016. In 2017, it is esti- trality obligations for price and data traffic controls, mated to have rebounded by $2–$4 billion in expecta- programming requirements, and donations to certain tion of the repeal of the onerous rules.113 congressional districts, requirements that would not Chairman Pai testified to Congress in August 2017 have been palatable had they been presented in Con- that the FCC’s internet regulation was followed by gress. By placing these provisions within a consent two years of successive decline in broadband infra- decree, the FCC circumvented democratic processes structure investment, the first time such a downturn and immunized the rulings from judicial review but has been reported in a non-recessionary period. He achieved the Democratic Party’s goals.107 Under- shared an unsolicited letter from VTel, a small ISP standably, the malleable net neutrality concept is in Springfield, Vermont, noting, “Regulating broad- important to Democratic Party politics, not only to band like legacy telephone service would not create realize the goals in the party platform but also to lay any incentives for VTel to invest in its broadband net- the groundwork for new regulations on platform reg- work. In fact, it would have precisely the opposite ulation, hate speech, and fake news.108 effect.” Since the removal of the harmful regulation, Research on the impact of net neutrality on inno- VTel has “committed $4 million to purchase equip- vation in mobile applications shows that no country ment and services from Ericsson to upgrade its LTE with hard regulations for net neutrality has expe- core to enable voice roaming and Wi-Fi calling to rienced increased innovation because of the rules. all our Vermont rural subscribers and to simultane- Countries with soft rules, such as codes of conducts, ously begin rolling out faster mobile broadband that self-regulation, and multi-stakeholder governance, will start our transition to 5G.” VTel concluded that it experienced greater mobile app development and app “is quite optimistic about the future, and the current ranking than did countries with hard rules, such as ex FCC is a significant reason for our optimism.”114 ante regulation or legislation.109 The FCC reversed the Open Internet Order in The 2015 Open Internet Order is instructive as a December 2017 upon finding that it harmed consum- natural experiment to examine whether the FCC’s ers, innovators, and investment. In its place, the FCC stated goals were achieved—notably, increased voted for the Restoring Internet Freedom Order.115 A investment and innovation. During the two years chorus of tech media described the Restoring Inter- of the Open Internet Order and the preceding two net Freedom Order as “the end of the internet”

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and “gutting all internet protections.”116 In fact, the they fail to give an accurate picture of the diverging order strengthens the transparency rules on internet views of Americans overall, including a large num- access, restores the FTC’s jurisdiction to police harm ber who have never heard of the term “net neutral- on broadband subscriptions, and returns to the pol- ity.” The polls suffer from statistical bias with loaded icy that made the US preeminent in the internet. In questions and definitions that lead to a preferred addition, the FTC and FCC now share jurisdiction on response.125 When asked open-ended questions, such broadband, offering two cops on the beat, not one.117 as how to define net neutrality and how to regulate Nevertheless, congressional Democrats are using it, a leading poll suggests that as many as 75 percent the Congressional Review Act (CRA) to attempt to of Americans have not heard of the topic or cannot reimpose the 2015 Open Internet Order. The Sen- explain it.126 The attempt to define net neutrality in a ate passed the CRA 52–47, with 47 Democrats, two way that all can understand remains elusive, as activ- independents, and Sens. Susan Collins (R-ME), John ists demonstrated with a political Burger King com- Kennedy (R-LA), and Lisa Murkowski (R-AK) in sup- mercial that drew mixed response.127 port. An effort in the House has 177 Democrat sup- porters and needs 218 for a simple majority, but it is unlikely to go forward at this point.118 The use of the CRA has had a resurgence in the The attempt to define current administration, and congressional Republi- cans have passed a record 16 resolutions disapproving net neutrality in a way of regulatory agencies’ overreach in the prior administration.119 The net neutrality CRA is the first time that all can understand Democrats have wielded the legislation and the first time it has been attempted to restore regulations that remains elusive. had been removed, an action that violates the spirit of the CRA’s purpose. While there may be general support among Amer- Passing a CRA is by no means easy.120 While the icans to protect the internet (but not necessarily to net neutrality CRA passed in the Senate, where the regulate it with price controls) and specific sup- Republican majority is thin, it faces an uphill battle in port for net neutrality among millennials, there is the House. Moreover, the president has vowed to veto not necessarily an agreed definition or preferred the item if it comes to his desk.121 policy instrument. Indeed, some espouse neutral- Even if the net neutrality CRA passed these hur- ity as a standard of nondiscrimination that should dles, there would likely be litigation. The explicit CRA be applied across the entire internet ecosystem, not statute applies only to agency rules, but the net neu- just to ISPs.128 trality CRA attempts to restore an order.122 Rules and Democrats advocate for the arcane administrative orders are not legally the same. There is also a proce- designation of Title II of the 1934 Communications dural issue of whether the 2015 FCC duly informed Act to be applied to broadband, which empowers Congress of the Open Internet Order, which could the FCC to regulate the internet with the same tools potentially make the entire order moot for CRA pur- used for the telephone monopoly. But there are viable poses. Ongoing legal challenges against the 2015 order, alternatives to Title II.129 including seven petitions at the Supreme Court, could Importantly, the term “net neutrality” does not also terminate the policy.123 appear in the FCC’s 2015 Open Internet Order or in Various polls are promoted by the tech press and any US statute. If the goal is to create net neutral- policymakers as evidence of overwhelming public ity rules, Congress needs to make a specific law (or support for internet regulation.124 While these polls update the Communications Act) to spell out the are indicative of sentiment from some respondents, term, what it means, and the regulator’s role to enforce

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it. As such, advocates’ calls to restore the FCC’s 2015 Democrats’ Wedge Strategy on Net Neutrality to rules will not create “net neutrality,” let alone a last- Win Millennials. Even though tech policy is not a ing policy. Only Congress can make such rules. Nota- top priority with voters, Democrats appear to be using bly, of the more than 50 countries with net neutrality net neutrality as a wedge issue for millennial voters. rules, almost all have been made with new legislation, Wedge issues are controversial issues that political except for soft rule regimes in Japan and South Korea, parties use to create a “wedge” within their opposi- ongoing for more than a decade, and the successful tion, exploit the natural instability within coalitions, voluntary code of conduct in Switzerland.130 and heighten polarization between the parties.135 Wedge issues need not be an explicit part of the party platform but can exemplify party values and objec- The Role of Policy in Elections tives. They must be sufficiently controversial to provide fodder for politically salient talking points and The previous sections discussed political parties writ media coverage. large and the substance of tech policy. An equally There is evidence that wedge issues can convince important, however complex, question is how polit- persuadable voters in swing states.136 The Persuadable ical parties’ policies translate to voters. Political sci- Voter: Wedge Issues in Presidential Campaigns suggests entists have modeled the role of policy in elections, that wedge issues such as abortion, gay marriage, and finding that candidates’ positions systematically immigration have emerged precisely because tech- influence voters’ decisions131 and that voters use elec- nology allows candidates to target voters who are tions to decide which of two opposing views will be responsive to “controversial” issues.137 implemented.132 Political scientist Elmer Schattschneider described While public policy plays a role in elections, tech the notion of a wedge or fringe position or extreme policy does not appear to be a key driver. A national group becoming mainstream: “Political conflicts are Pew Research Center longitudinal poll of 1,500 adults waged by coalitions of inferior interests held together over the past decade notes that leading concerns are by a dominant interest. The effort in all political the economy, terrorism, and education.133 Notably, struggles is to exploit cracks in the opposition while the economy, jobs, and the budget deficit, while still attempting to consolidate one’s own side.”138 This ranking high as public policy priorities, have declined could explain in part how policymakers have suc- in importance over the past decade. The priorities that ceeded in gathering attention with divisive commu- have risen most in importance are the environment, nication on net neutrality and online privacy. (For transportation, and drug addiction, but these concerns example, “Big corporations are trying to break the are still outweighed by health care and Social Security. internet and destroy your privacy. Only our gov- No tech policy issue is listed as a priority. ernment intervention can protect you.”) The other Gallup charts the volatility of Americans noting topics of tech policy are dry and less susceptible to economic issues as the most pressing problem facing emotional appeal. the nation since 2000. It also provides the breakdown In May 2018, the New York Times described of what Americans believe are the most pressing eco- net neutrality as the “centerpiece” of Demo- nomic and noneconomic problems. No tech policy crats’ midterm strategy and “part of a three-legged issue, including the internet and the presence or lack stool—internet access, gun control and marijuana of regulation, is mentioned among more than 40 enu- legalization—they are leaning on to entice young merated problems.134 voters to engage in the midterm elections.”139 At a This is not an exhaustive review, but if tech policy press conference for Operation #OneMoreVote on played a pivotal role in elections, it should emerge, February 27, 2018, Senate Minority Leader Chuck at least anecdotally, in two of the leading polls. It Schumer declared, “If our Republican friends don’t does not. wise up and join us, Democrats will be making net

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neutrality a major issue in the 2018 elections, and we The GOP does not appear to have a midterm will win.”140 strategy for millennials, preferring what the Atlan- Six months earlier, Wired magazine explained, tic describes as “doubling down on its older white “Democrats and advocacy groups are already using base—and hoping the more diverse Millennials don’t internet-policy decisions as political weapons against show up to the polls.”150 Republican pollster Kristin Republicans.”141 The article detailed how Republicans Soltis Anderson observes that “conservatives have who disapproved of the 2015 FCC’s controversial done little to bridge the generation gap, or even effec- internet and online privacy regulation were excori- tively to make their case, instead treating young peo- ated with inflammatory Google search ads and bill- ple as at best a nuisance and at worst a problem.”151 boards in their districts decrying their voting record She advises that the GOP should emphasize free mar- and campaign contributions. kets, families and communities as the cure for loneli- In addition to marking Republicans as opponents ness, tax cuts, and limited government as essential for of regulation purported to “save the internet,” Axios entrepreneurship. describes how Democrats are using the issue to gal- Conservative commentator Ben Shapiro observes, vanize a small but committed group of midterm “The problem isn’t politics. It’s values.”152 He sug- voters.142 “Here’s the thing: I’m not suggesting that gests that if Republicans want to connect with mil- this is going to move the majority of voters. What lennials, they must act and argue “morally.” For I’m telling you is that for millions of motivated and Republicans to be relevant to millennials, they need infrequent voters, this is a top issue,” says Sen. Brian to emphasize the human and emotional side of tech Schatz (D-HI).143 Noting its relevance for young policy issues, such as how internet regulation is a tool voters, Sen. Claire McCaskill (D-MO) commented, of intolerance and government censorship and how “I’m not sure how many Missourians are as tuned government has snuffed out innovation and entrepre- in to net neutrality. Especially once you get over neurship with heavy-handed regulation. Indeed, the the age of about 35 or 40, I’m not sure people are appeal of internet regulation for millennials, who are as aware about what the problems are.”144 However, “born digital,” is being sentimental about the internet Sen. Cory Gardner (R-CO), who leads the Republi- and identifying with the notion of needing to “save” can Senate campaign arm, said that if “the Demo- and “protect” it. Older Americans, whose life pre- crats want to run on regulating the internet, I think cedes the internet, likely see the internet in utilitar- that’s a losing strategy.”145 ian, not emotional, terms. By contrast, a free-market It remains to be seen whether Democrats’ strategy view suggests that the internet should be allowed to to motivate millennials to vote in the November elec- change, evolve, and improve, not frozen in time with tion will succeed. But nonetheless, they are smart to government regulation. recognize that millennials are an important constit- uency, given their size as a demographic block. By Net Neutrality as Symbolic Politics. The debate 2020, millennials will outnumber the baby-boomer surrounding net neutrality exemplifies “symbolic generation. Moreover, they overwhelmingly identify politics.” This means that the ideas behind the pol- as Democrat.146 icy proposals and the audiences to which they are Millennials were decisive in the 2008 and 2012 directed matter more than whether the policies are presidential elections,147 but they have historically adopted.153 Key components of symbolic politics low turnout in midterms. Only half reliably vote. If include communication as a form of political theater, millennials double their national turnout in the 2018 milestones for the media narrative, and support from midterm and vote Democrat, this could result in an well-funded, professional advocacy organizations. additional four million votes, which could be piv- These campaigns emphasize drama over analysis with otal in many districts.148 However, some see this as simplistic, good-versus-evil narratives and a binary, overly optimistic.149 all-or-nothing framing of the issues.154

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Net neutrality campaigns such as Battle for the Feb. 11, every U.S. House office was sent approxi- Net use inflammatory memes and Star Wars–like mately 2,240 letters.”162 imagery to fetishize regulation.155 These communi- Timed for the midterms, the worst fires in Cali- cations are undergirded by a sophisticated set of dig- fornia’s history were exploited with symbolic poli- ital tools to manage and measure marketing efforts. tics, turning a customer service mistake into a media For example, Battle for the Net’s platform for CRA frenzy. When firefighters experienced reduced cellu- advocacy to Congress has been used to generate lar speeds on a single modem in a firetruck (among more than 17 million emails, 1.7 million phone calls, hundreds of modems deployed to fight the fire), net 500,000 text messages, and some 8,000 individual neutrality advocates pounced on the incident to claim websites.156 that the provider was deliberating throttling the con- nection because there were no FCC rules to check its behavior, even though the 2015 rules allowed the traffic management practice.163 Net neutrality In response to this incident, the Santa Clara County fire chief was enjoined to file a brief in a suit campaigns such as against the FCC for its 2017 Restoring Internet Free- dom Order filed by 23 state attorneys general, the Battle for the Net use California Public Utility Commission, California’s Santa Clara County, and the Santa Clara County inflammatory memes Fire District. The suit appears to be premeditated to claim that the FCC did not consider how the repeal and Star Wars–like would affect the subscriptions for public safety providers, even though the 2015 FCC rules applied to imagery to fetishize only mass market retail services for consumers, not subscriptions purchased by government and first regulation. responders. The petition even asserts, “Government Petitioners do not contend that this throttling would The net neutrality CRA has been bolstered by have violated the 2015 Order.”164 Indeed, public events and efforts to pressure representatives to safety communications networks and subscriptions vote in favor of the resolution, including the One are predicated on prioritization and service-level More Vote campaign on February 27 (specifically to agreements, the antithesis of the idea of a neutral pressure Republican senators),157 a Day of Action to network that treats all data equally. lobby Congress,158 and calls to overwhelm the FCC That petitioners now impugn the FCC’s statutory with comments to its net neutrality regulatory pro- commitment to public safety suggests that the argu- ceeding.159 These efforts are funded lavishly by major ments in favor of the regulation are weak. The internet foundations and corporations.160 They are a clas- did not end when the rules were repealed, as regula- sic example of astroturfing, the practice of masking tory proponents warned. Claims that public safety is a sponsor’s message with the appearance of grass- now at risk is typical fodder for symbolic politics. roots support.161 Fight for the Future’s online mailing “First In February 2018, nearly $1 million was spent Responders for Net Neutrality” shamelessly declares, per day to push House members to vote for the net “But since the Federal Communications Commission neutrality CRA. According to one journalist, “This repealed net neutrality rules and other key protec- includes $168,000 per day in banner ads and $687,500 tions in December 2017, the communication services per day in ‘Guaranteed Letter Signers’ for 125,000 let- we rely on to do our jobs are no longer meaningfully ters per day at $5.50 per letter. Between Feb. 2 and protected from being arbitrarily slowed, blocked, or

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otherwise degraded by Internet service providers.”165 presidential administration, and three have been filed The mailing calls on respondents to tell their repre- by the government against the state. The Sacramento sentatives to vote in support of the House CRA. Bee reports that the cost to taxpayers to date is more Along these lines, net neutrality activists unleashed than $9 million for the 2017–18 fiscal year, up $3 mil- a campaign to block the confirmation of Judge Brett lion from the prior year.174 Kavanaugh to the Supreme Court.166 When the DC Because of the global nature of the internet, Con- Circuit voted to uphold the FCC’s 2015 internet reg- gress deemed that there needs to be a single national ulation, Judge Kavanaugh authored the dissent, not- policy to govern it, which it states explicitly in the ing that the rules violate the First Amendment and 1996 Telecommunications Act. It is neither practi- constitute a “major question,” which requires Con- cal nor tenable to require a person to obtain a new gress to be explicit about its intent.167 The case has driver’s license to drive in a new state or a new high been appealed to the Supreme Court.168 school diploma to work in another state. Similarly, Symbolic politics also serves an important func- state-level internet regulation frustrates the current tion for political fundraising. Each net neutrality peti- seamless digital market in which consumers can enjoy tion comes with a donation request. Nearly every online content and services, regardless of which state member of Congress has benefited. Of the 535 mem- it originates from. Consumers will likely reject 50 dif- bers of Congress, 495 (or 93 percent) have received ferent sets of state requirements to connect online. campaign contributions from groups that lobbied the FCC on net neutrality. Those members include 265 Republicans, 228 Democrats, and two independents—Sens. Bernie Sanders of Vermont and Angus Consumers will likely King of Maine.169 State-level political actors have amplified symbolic reject 50 different sets politics by attempting to use various policy instruments to reinstate the FCC’s 2015 rules, whether by of state requirements to governor’s executive order, state legislation, or lawsuits by state attorneys general.170 On the same day connect online. that California signed a net neutrality bill that goes even beyond the FCC’s 2015 rules, the Department of In any case, creating state-level internet rules is Justice sued to block its implementation, noting that also illegal because of the Constitution’s dormant California’s law is preempted by the FCC’s deregu- commerce and supremacy clauses, the Communica- latory policy.171 It is illegal for a state to regulate the tions Act, and the FCC’s preemption authority.175 Just internet and defy the FCC’s preemption authority, as it would have been illegal for a state to disobey the but state actors persist nonetheless because of the FCC’s 2015 order while it was in effect, it is illegal for political value they earn by purporting to “protect states to disobey the FCC’s policy now. the internet.” Such tactics, the conspicuous display of Even if some states succeed in promulgating their moral superiority, are also described as virtue signal- own internet policies, the question is how long these ing, “publicly displayed deception or surrogate action policies will withstand legal challenge in state and fed- that is used to detract from actual political reality . . . eral litigation. States will likely be too overwhelmed a surrogate for politics.”172 to defend their internet policies when they are fight- Even the Washington Post Editorial Board, which ing legal battles on dozens of other issues. generally leans left, said that the California effort is The point of states making their own internet pol- a step too far and called on Congress to resolve the icy may not necessarily be to enforce such rules but to issue once and for all.173 Since January 2017, the state gain symbolic victories before an election. For prac- of California has filed a record 44 lawsuits against the tical purposes, most states do not necessarily want

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to enforce their rules, and most of their public utility Americans get their election news “on demand” commissions are not equipped or situated to do so. rather than “by appointment.” One of the key impli- Moreover, it may be technically impossible to cations is that voters gravitate to sources that already enforce these rules. State regulators can only regu- cater to their preexisting views.178 late commerce that takes place within the state’s bor- Confirmation bias suggests that people inter- ders. Thus, the state regulator would have to certify pret information in a way that already supports their that the internet service is intrastate, originating and preexisting views. For example, the president’s sup- terminating within its state. Regulators would have to porters could interpret negative media coverage as look into the internet packet to see its origin and des- evidence of his policies’ success. Alternatively, his tination, an impossible feat without a major invest- detractors could view positive coverage of the pres- ment in expensive deep packet inspection technology. ident or his policies negatively because they perceive Not only would the vast majority of internet streams it as their preferred policies failing. fail to meet intrastate requirements, but state resi- The conventional view may be that news outlets dents would be subject to surveillance by their state report objective information on which voters can regulators under the premise of keeping the internet make electoral decisions. However, a 2017 report of “free and open.” the major official news outlets notes that news cov- This is not to say that states such as California erage is dominated by reporting of “who’s up and would not try to enforce their own internet regula- who’s down,” to the detriment of coverage of sub- tion. Indeed, the California Public Utility Commis- stantive policy issues.179 This trend has been afoot sion is larger in head count and budget than the FCC, for some time. Communication and Midterm Elections: has its own advocacy arm, and likely desires to use the Media, Message, and Mobilization, which explores premise of the state law to add a net neutrality tax to the media and the 2014 midterm, concurs that there Californians’ broadband bills.176 was less media coverage of policy issues in the 2014 midterm.180 How Voters Learn About Tech Policy. Just as the A similar trend could be observed in tech pol- internet has disrupted traditional industries, it has icy media in that the coverage of the politics of the also changed how Americans stay informed. While issues supersedes the coverage of the policy sub- this report describes political parties’ websites, plat- stance. Over the past year and a half, highly politi- forms, and communication about tech policy issues, cized stories about online privacy and net neutrality these are some of the least “helpful” sources of politi- dominated news coverage, whereas academic and cal information for voters, according to Pew. evidenced-based discussions on these topics were The Pew survey describes the leading sources of limited. Moreover, these two issues are discussed fre- political information, which vary by voter age. These quently to the exclusion of substantive tech policy include cable TV news, social media, local television, issues such as scientific research, spectrum, and regu- news websites and apps, and radio. For millennials, latory instrumentation.181 social media and news websites are the most help- In fact, the FCC took 78 substantive actions on ful, and millennials, compared to other age groups, 28 distinct policy issues in 2017, but tech journalists are more likely to get political information from largely ignored these accomplishments.182 Jon Brod- late-night comedy shows and issue-specific groups kin of Ars Technica justified his lack of response in a and websites.177 tweet: “I’m ignoring so many major FCC accomplish- In U.S. Media and Elections in Flux: Dynamics and ments . . . most of them are eliminating stuff the pre- Strategies, David Jones describes the shift in Ameri- vious guy did or continuing stuff the previous guy did, cans’ preferred sources of information, noting that but pay no attention to the details.”183

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Tech Policy and Politics Once networks were built, devices, apps, and services had the capability for a national market with a Symbolic politics can be effective to frame debates. common language, currency, and light-touch regu- Robert Atkinson and Doug Brake argue that some latory policy. Such a dynamic was never possible in net neutrality advocates conduct a broader debate the EU with its 24 languages, 17 currencies, and frag- as a series of individual, tactical skirmishes over mented regulatory approach.186 Despite its efforts to hot-button issues because they know that if the make a single digital market, the EU still lags on devel- debate were about the strategic choice—for exam- oping pan-European networks, services, and apps. ple, market solutions versus government control—a The beauty of the 1996 Telecommunications Act majority would favor the former.184 However, digitally was that it said little about the internet other than driven tech policy campaigns should not be underes- that it should be free and unfettered from federal and timated; they have succeeded in capturing regulatory state regulation. The act unleashed a torrent of inno- agencies and forcing Congress to capitulate on con- vation and investment that allowed the US to become troversial bills. the world’s internet leader. However, this simple and A larger issue is whether the net neutrality cam- straightforward language does not deter advocates paigns will win votes, not just solidarity. Democrats from claiming that Congress gave the FCC authority tried an electoral strategy with net neutrality in 2010, to regulate the internet with the same instruments but all 95 Democratic candidates running in part on used for the Ma Bell telephone monopoly. net neutrality platforms lost their races.185 For wedge issues to succeed, they likely need to be linked to specific ballot initiatives. Merely associat- ing a set of ideas with a party is probably not enough The US gained to bring voters to midterm elections; the policy ideas need to affect things voters deeply care about. preeminence in the Additionally, net neutrality campaigns must over- come technological advancements that continue internet industry to make internet access better, faster, and cheaper. The FCC has concluded that there is an increasingly because American policy competitive market for broadband today. Moreover, recent policy has increased broadband deployment in allowed providers to rural areas, fast-tracked the deployment of 5G mobile wireless networks nationwide, and increased the view the 50 states as a availability of spectrum—policies that enjoy bipartisan support and that will likely reflect well on Repub- single market, not 50 licans in the fall of 2018. From 1996 to 2015, the US benefited tremen- individual markets with dously from centralizing internet policy at the FTC because there was a common competition standard their own rules. for all providers and common expectations for online privacy. This also kept states from creating contra- Centralizing internet policy at the FTC is a prudent, dictory rules. To put it another way, the US gained cost-effective regulatory solution. Most consumers preeminence in the internet industry because Amer- intuitively understand what many policymakers do ican policy allowed providers to view the 50 states as not: The internet is an interconnected, converged a single market, not 50 individual markets with their system that calls for the same rules across the board. own rules. This should be achieved by updating the FTC and

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Communications Acts. Subsequently, sector-specific Republicans achieved many tech policy goals regulatory functions should be rationalized in favor of described in their platform, especially advancing a general competition law. Unfortunately, entrenched broadband infrastructure deployment and regulatory interests want to exploit outdated statutes to realize modernization. Democrats participated in bipartisan preferred policy goals rather than regulatory reform efforts such as agency reauthorization and online pri- that can legitimately help consumers. vacy and have defended internet regulation. Demo- Policy and regulation are not neutral; they bene- crats have also made significant state-level internet fit certain actors at the expense of others. Moreover, policy, which contradicts the historical, federal, and consumers and taxpayers are least likely to be repre- bipartisan approach and will likely be struck down sented by special interest groups. This is particularly in court. the case with tech policy, which is sufficiently arcane While some have claimed that net neutrality will to a general audience, making it even more suscep- be a defining wedge issue for the 2018 midterms and tible to abuse by special interests. Although most an effective means to activate millennials, there is Americans can benefit from good tech policy, its tech- little evidence that it will measurably affect votes, nical nature means it attracts interest from special- particularly with competition for other salient pol- ized scholars, advocates, and policymakers who prefer icy issues. The audience for tech policy is relatively regulatory solutions because it gives them power they small, though it is growing along with the tech would not have otherwise.187 economy. Making legislation now is imperative to end more While the substance of tech policy is important, its than a decade of litigation on net neutrality, deter coverage in the media is largely limited to stories that abuse of FCC authority, and end state-level policy describe the politics of a few hot-button issues. In fragmentation. Ideally, Congress will make modern the short run, net neutrality offers a compelling nar- rules to ensure that consumers and innovators enjoy rative for political communication, press coverage, common protections and competition standards and fundraising, but its role in elections is difficult to across the ecosystem, enforced by the FTC. Apart observe and measure. In the long run, however, inter- from the divisive activist segment, there is room for net freedom will lead to more economic growth and bipartisan agreement on internet policy. benefit more Americans.

Conclusion About the Author

This report reviewed political parties’ 2016 tech policy Roslyn Layton is a visiting scholar at the Amer- platforms, finding both commonalities and ideolog- ican Enterprise Institute, where she focuses on ical differences but that the parties were consistent evidence-based policy for the information, communi- with their stated positions in the past two years. cations, and digital technology industries.

20 TECH POLICY AND THE MIDTERM ELECTIONS ROSLYN LAYTON Notes

1. Scientist and policy adviser Lewis Branscomb described technology policy as “public means for nurturing those capabilities and optimizing their applications in the service of national goals and interests” and technology as “the aggregation of capabilities, facilities, skills, knowledge, and organization required to successfully create a useful service or product.” Lewis M. Branscomb, Confessions of a Technophile (Woodbury, NY: American Institute of Physics, 1995). 2. Friedrich List, The National System of Political Economy (1845). 3. Alexander Hamilton, The Report on the Subject of Manufactures (1791). 4. Eric Schatzberg, “Technik Comes to America: Changing Meanings of Technology Before 1930,” Technology and Culture 47, no. 3 (July 2006): 486–512, http://muse.jhu.edu/article/201479; and Thorstein Veblen, The Theory of Business Enterprise (New York: C. Scrib- ner’s Sons, 1904), 7, 302. 5. Thorstein Veblen, The Place of Science in Modern Civilisation and Other Essays (New York: B. W. Heubsch, 1919). 6. Travis R. Doom, “Department of Defense,” in AAAS Report XXXIX: Research and Development FY 2015 (New York: American Association for the Advancement of Science, 2014), http://www.aaas.org/sites/default/files/15pch05.pdf. 7. Roslyn Layton, “Agency Authorization: Something to Please Those Who Want Less Government but Also Those Who Want More,” AEIdeas, March 30, 2018, http://www.aei.org/publication/agency-authorization-something-to-please-those-who-want-less- government-but-also-those-who-want-more/. 8. White House, “President Donald J. Trump Is Building the United States Space Force for a 21st Century Military,” press release, August 9, 2018, https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-building-united-states-space-force-21st- century-military/. 9. CompTIA, “IT Industry Outlook 2018,” January 2018, https://www.comptia.org/resources/it-industry-trends-analysis#section5. 10. Nasdaq, “Technology Companies,” https://www.nasdaq.com/screening/companies-by-industry.aspx?industry=Technology& sortname=marketcap&sorttype=1. 11. CompTIA, “IT Industry Outlook 2018.” 12. Brian G. Knight, “An Economic Evaluation of Competing Explanations for the Midterm Gap” (working paper, National Bureau of Economic Research, Cambridge, MA, July 2014), http://www.nber.org/papers/w20311. 13. Republicans netted positive seats in both the House and Senate in the 2002 midterm. Drew DeSilver, “Voter Turnout Always Drops Off for Midterm Elections, but Why?,” Pew Research Center, July 24, 2014, http://www.pewresearch.org/fact-tank/2014/07/24/ voter-turnout-always-drops-off-for-midterm-elections-but-why/. 14. Jeffrey M. Jones, “Avg. Midterm Seat Loss 36 for Presidents Below 50% Approval,” Gallup, August 9, 2010, https://news.gallup. com/poll/141812/avg-midterm-seat-loss-presidents-below-approval.aspx. 15. Nansook Park and Christopher Peterson, “It’s Not Just the Economy: The Psychological Well-Being of an Electorate Also Matters for Election Outcomes,” Journal of Positive Psychology 13, no. 5 (July 11, 2017): 1–6, https://www.tandfonline.com/doi/full/10.1080/17439 760.2017.1350743. 16. US House of Representatives, “Statistics of the Congressional Election of November 7, 1922,” http://history.house.gov/ Institution/Election-Statistics/Election-Statistics/. 17. American Presidency Project, “Seats in Congress Gained/Lost by the President’s Party in Mid-Term Elections,” December 19, 2014, http://www.presidency.ucsb.edu/data/mid-term_elections.php. 18. US House of Representatives, “Statistics of the Congressional Election of November 2, 2010,” http://history.house.gov /Institution/Election-Statistics/Election-Statistics/. 19. Russell Berman, “The 2018 Congressional Retirement Tracker,” Atlantic, June 5, 2018, https://www.theatlantic.com/politics/ archive/2018/06/the-2018-congressional-retirement-tracker/545723/. 20. Michael Barone, “Still Not Clear Which Party Will Lose the House,” Washington Examiner, August 8, 2018, https://www.

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washingtonexaminer.com/opinion/columnists/michael-barone-still-not-clear-which-party-will-lose-the-house; and Karlyn Bowman, “Counting Down to Election Day: What the Early Polls Tell Us,” Forbes, June 4, 2018, https://www.forbes.com/sites/ bowmanmarsico/2018/06/04/counting-down-to-election-day-what-the-early-polls-tell-us/. 21. James E. Campbell, “The Revised Theory of Surge and Decline,” American Journal of Political Science 31, no. 4 (November 1987): 965–79, http://www.jstor.org/stable/2111231. 22. Domenico Montanaro, Rachel Wellford, and Simone Pathe, “2014 Midterm Election Turnout Lowest in 70 Years,” PBS News- Hour, November 10, 2014, https://www.pbs.org/newshour/politics/2014-midterm-election-turnout-lowest-in-70-years. 23. Celinda Lake and Joshua E. Ulibarri, “Comparing the Voting Electorate in 2012–2016 and Predicting 2018 Drop-Off: How the Electorate Has Changed over the Years and How That Informs the 2018 Cycle,” Voter Participation Center and Lake Research Partners, July 20, 2017, http://data.voterparticipation.org/wp-content/uploads/2017/07/Report.VPC_.Drop-Off.firev_.2017.12.04.pdf. 24. Karlyn Bowman, “Who’s Winning the Voter Enthusiasm Race for November?,” AEIdeas, October 5, 2018, http://www.aei.org/ publication/whos-winning-the-voter-enthusiasm-race-for-november/. 25. Pew Research Center, Voters More Focused on Control of Congress—and the President—Than in Past Midterms, June 20, 2018, http://www.people-press.org/2018/06/20/voters-more-focused-on-control-of-congress-and-the-president-than-in-past-midterms/. 26. Jonathan Topaz, “What We Learned About the American Voter in 2014,” Politico, December 31, 2014, https://www.politico.com/ story/2014/12/2014-american-voter-elections-113883.html. 27. Patrick Ruffini (@PatrickRuffini), “My attempt to describe in plain English what 2018 turnout models and special election turnout are telling us,” Twitter, August 28, 2018, 8:22 p.m., https://twitter.com/PatrickRuffini/status/1034581905205813249. 28. Republican Party, Republican Platform 2016, 25, https://prod-cdn-static.gop.com/static/home/data/platform.pdf. 29. Democratic Party, 2016 Democratic Party Platform, 8, http://s3.amazonaws.com/uploads.democrats.org/Downloads/2016_DNC_ Platform.pdf. 30. Democratic Party, 2016 Democratic Party Platform, 8. 31. Republican Party, Republican Platform 2016, 54. 32. Democratic Party, 2016 Democratic Party Platform, 8. 33. Republican Party, Republican Platform 2016, 5–6. 34. Democratic Party, 2016 Democratic Party Platform, 7. 35. Republican Party, Republican Platform 2016. 36. Democratic Party, 2016 Democratic Party Platform, 8. 37. Republican Party, Republican Platform 2016, 6. 38. Roslyn Layton and Ryan Divers, “The Politicization of Consumer Protection,” US News & World Report, March 16, 2017, https:// www.usnews.com/opinion/economic-intelligence/articles/2017-03-16/the-politicization-of-consumer-protection-at-the-fcc- hurts-consumers. 39. Federal Trade Commission, “Acting FTC Chairman Ohlhausen Reports One Year of Agency Accomplishments,” press release, January 18, 2018, https://www.ftc.gov/news-events/press-releases/2018/01/acting-ftc-chairman-ohlhausen-reports-one-year-agency. 40. Best Places to Work in the Federal Government, “Agency Report: Federal Trade Commission,” http://bestplacestowork.org/ BPTW/rankings/detail/FT00. 41. Federal Trade Commission, “Careers at the FTC,” https://www.ftc.gov/about-ftc/careers-ftc. 42. Roslyn Layton, “FCC, FTC Chairs Show Leadership During Shutdown,” AEIdeas, January 25, 2018, https://www.aei.org/ publication/fcc-ftc-chairs-show-leadership-during-shutdown/. 43. Federal Trade Commission, “FTC, FCC Outline Agreement to Coordinate Online Consumer Protection Efforts Following Adop- tion of the Restoring Internet Freedom Order,” press release, December 11, 2017, https://www.ftc.gov/news-events/press-releases/ 2017/12/ftc-fcc-outline-agreement-coordinate-online-consumer-protection. See also Roslyn Layton and Tom Struble, “Net Neutrality Without the FCC? Why the FTC Can Regulate Broadband Effectively,” Federalist Society, November 15, 2017, https://fedsoc.org/ commentary/publications/net-neutrality-without-the-fcc-why-the-ftc-can-regulate-broadband-effectively. 44. Federal Trade Commissions, “FTC Cases Resulted in More Than $6.4 Billion in Refunds for Consumers Between July 1, 2016 and

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June 30, 2017,” press release, December 22, 2017, https://www.ftc.gov/news-events/press-releases/2017/12/ftc-cases-resulted-more- 64-billion-refunds-consumers-between-july. 45. Federal Trade Commission, “FTC Releases Annual Privacy and Data Security Update,” press release, January 18, 2018, https:// www.ftc.gov/news-events/press-releases/2018/01/ftc-releases-annual-privacy-data-security-update. 46. Gus Hurwitz, “What the FCC Can Learn from the Volkswagen Scandal,” AEIdeas, September 25, 2015, http://www.aei.org/ publication/fcc-can-learn-volkswagen-scandal/; and Federal Trade Commission, “Volkswagen 2.0L Settlement,” October 2016, https:// www.ftc.gov/enforcement/cases-proceedings/refunds/volkswagen-settlement. 47. Federal Trade Commission, “FTC and DOJ Case Results in Historic Decision Awarding $280 Million in Civil Penalties Against Dish Network and Strong Injunctive Relief for Do Not Call Violations,” press release, June 6, 2017, https://www.ftc.gov/news-events/ press-releases/2017/06/ftc-doj-case-results-historic-decision-awarding-280-million-civil. 48. Federal Trade Commission, “Lenovo, Inc.,” September 13, 2017, https://www.ftc.gov/enforcement/cases-proceedings/152-3134/ lenovo-inc. 49. Federal Trade Commission, “Uber Settles FTC Allegations That It Made Deceptive Privacy and Data Security Claims,” press release, August 15, 2017, https://www.ftc.gov/news-events/press-releases/2017/08/uber-settles-ftc-allegations-it-made-deceptive- privacy-data. 50. Federal Trade Commission, “Electronic Toy Maker VTech Settles FTC Allegations That It Violated Children’s Privacy Law and the FTC Act,” press release, January 8, 2018, https://www.ftc.gov/news-events/press-releases/2018/01/electronic-toy-maker-vtech- settles-ftc-allegations-it-violated. 51. Federal Trade Commission, “Operator of Online Tax Preparation Service Agrees to Settle FTC Charges That It Violated Financial Privacy and Security Rules,” press release, August 29, 2017, https://www.ftc.gov/news-events/press-releases/2017/08/operator-online- tax-preparation-service-agrees-settle-ftc-charges; and Federal Trade Commission, “FTC and Nevada Seek to Halt Revenge Porn Site,” press release, January 9, 2018, https://www.ftc.gov/news-events/press-releases/2018/01/ftc-nevada-seek-halt-revenge-porn-site. 52. Federal Trade Commission, “FTC to Host Cybersecurity Roundtables with Small Businesses,” press release, July 20, 2017, https:// www.ftc.gov/news-events/press-releases/2017/07/ftc-host-cybersecurity-roundtables-small-businesses; and Federal Trade Commis- sion, “Business Guidance Concerning Multi-Level Marketing,” January 2018, https://www.ftc.gov/tips-advice/business-center/ guidance/business-guidance-concerning-multi-level-marketing. 53. Federal Trade Commission, “Acting FTC Chairman Ohlhausen Announces Internal Process Reforms: Reducing Burdens and Improving Transparency in Agency Investigations,” press release, July 17, 2017, https://www.ftc.gov/news-events/press-releases/2017/07/ acting-ftc-chairman-ohlhausen-announces-internal-process-reforms. 54. Federal Trade Commission, “FTC Upgrades RN Webpage for Labels on Clothing and Other Textile or Fur Products,” press release, September 15, 2017, https://www.ftc.gov/news-events/press-releases/2017/09/ftc-upgrades-rn-webpage-labels-clothing-other- textile-or-fur. 55. Federal Trade Commission, “Economic Liberty,” https://www.ftc.gov/policy/advocacy/economic-liberty. 56. Brendan Bordelon, “The Consequences of a Diminished FTC,” National Journal, January 29, 2018, https://www.nationaljournal. com/s/663392/consequences-diminished-ftc. 57. Federal Trade Commission, “FinTech Forum: Artificial Intelligence and Blockchain,” March 9, 2017, https://www.ftc.gov/news- events/events-calendar/2017/03/fintech-forum-blockchain-artificial-intelligence; Federal Trade Commission, “Identity Theft: Planning for the Future,” May 24, 2017, https://www.ftc.gov/news-events/events-calendar/2017/05/planning-future-conference-about-identity- theft; Federal Trade Commission, “Connected Cars: Privacy, Security Issues Related to Connected, Automated Vehicles,” June 28, 2017, https://www.ftc.gov/news-events/events-calendar/2017/06/connected-cars-privacy-security-issues-related-connected; and Federal Trade Commission, “Informational Injury Workshop,” December 12, 2017, https://www.ftc.gov/news-events/events-calendar/2017/12/ informational-injury-workshop. 58. Federal Trade Commission, “Hearings on Competition and Consumer Protection in the 21st Century,” https://www.ftc.gov/ policy/hearings-competition-consumer-protection. 59. Federal Trade Commission, “FTC Announces Hearings on Antitrust and Consumer Protection Laws in Global, High-Tech

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Economy,” press release, July 19, 1995, https://www.ftc.gov/news-events/press-releases/1995/07/ftc-announces-hearings-antitrust- and-consumer-protection-laws. 60. Layton, “Agency Authorization.” 61. Federal Communications Commission, “Bridging the Digital Divide for All Americans,” https://www.fcc.gov/about-fcc/fcc- initiatives/bridging-digital-divide-all-americans. 62. Ajit Pai, “A Digital Empowerment Agenda” (speech, Brandery, Cincinnati, OH, September 13, 2016), https://www.fcc.gov/ document/commissioner-pais-digital-empowerment-agenda. 63. Federal Communications Commission, “FCC Fact Sheet,” September 5, 2018, https://docs.fcc.gov/public/attachments/DOC- 353962A1.pdf. 64. Federal Communications Commission, “Chairman Pai Statement on Circulation of Mobility Fund Challenge Order,” August 3, 2018, https://www.fcc.gov/document/chairman-pai-statement-circulation-mobility-fund-challenge-order. 65. Federal Communications Commission, “Connect America Fund Phase II FAQS,” November 30, 2017, https://www.fcc.gov/ consumers/guides/connect-america-fund-phase-ii-faqs. 66. Roslyn Layton, “The FCC’s Plan to Close the Digital Divide with Open Innovation,” AEIdeas, April 12, 2017, http://www.aei.org/ publication/fccs-plan-close-digital-divide-open-innovation/. 67. National Conference of State Legislatures, “Mobile 5G and Small Cell Legislation,” May 7, 2018, http://www.ncsl.org/research/ telecommunications-and-information-technology/mobile-5g-and-small-cell-legislation.aspx. 68. Roslyn Layton, “What’s the Right Path for Deploying 5G Infrastructure?,” AEIdeas, March 7, 2018, http://www.aei.org/publication/ whats-the-right-path-for-deploying-5g-infrastructure/. 69. Roslyn Layton, “5G Wireless: When It Makes Sense to Regulate,” AEIdeas, September 11, 2018, http://www.aei.org/ publication/5g-wireless-when-it-makes-sense-to-regulate/. 70. Federal Communications Commission, “Proposed Rules to Streamline Wireless Infrastructure Deployment,” March 1, 2018, https://www.fcc.gov/document/proposed-rules-streamline-wireless-infrastructure-deployment. 71. Federal Communications Commission, “The FCC’s 5G FAST Plan,” https://www.fcc.gov/5G. 72. Roslyn Layton, “The U.S. Must Move Quickly on Mid-Band Spectrum If It Wants to Lead in 5G,” Forbes, May 23, 2018, https:// www.forbes.com/sites/roslynlayton/2018/05/23/the-us-must-move-quickly-on-mid-band-spectrum-if-it-wants-to-lead-in-5g/. 73. Federal Communications Commission, “FCC Establishes Procedures for First 5G Spectrum Auctions,” https://www.fcc.gov/ document/fcc-establishes-procedures-first-5g-spectrum-auctions. 74. Federal Communications Commission, “3.5 GHz Band/Citizens Broadband Radio Service,” https://www.fcc.gov/wireless/ bureau-divisions/broadband-division/35-ghz-band/35-ghz-band-citizens-broadband-radio. 75. NCTA, “Connecting Rural America Through Fixed Wireless Technology,” August 9, 2018, https://www.ncta.com/whats-new/ connecting-rural-america-through-fixed-wireless-technology. 76. Ajit Pai, “In the Aftermath of Hurricanes Irma and Maria, Resilience and Challenges in Puerto Rico and the U.S. Virgin Islands,” Federal Communications Commission, March 19, 2018, https://www.fcc.gov/news-events/blog/2018/03/19/aftermath-hurricanes- irma-and-maria-resilience-and-challenges-puerto; and Federal Communications Commission, “Chairman Pai Proposes $954 Million Plan for Puerto Rico and USVI,” March 6, 2018, https://www.fcc.gov/document/chairman-pai-proposes-954-million-plan-puerto- rico-and-usvi. 77. Michael O’Rielly and Jessica Rosenworcel, “States Are Stealing Funds from 9-1-1 Emergency Services—Now They’ll Be Pun- ished,” Hill, February 9, 2018, http://thehill.com/opinion/technology/373043-states-are-stealing-funds-from-9-1-1-emergency-services- now-theyll-be. 78. Federal Communications Commission, “FCC Fact Sheet,” September 5, 2018, https://docs.fcc.gov/public/attachments/DOC- 353961A1.pdf. 79. Kari’s Law Act of 2017, Pub. L. No. 115-127. 80. Ajit Pai, “Chairman Pai Speech on First 100 Days,” Federal Communications Commission, May 5, 2017, https://www.fcc.gov/ document/chairman-pai-speech-first-100-days.

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81. Federal Communications Commission Transparency Act, H.R. 6422, 115th Cong. 82. Federal Communications Commission, “FCC Fact Sheet,” September 5, 2018, https://docs.fcc.gov/public/attachments/DOC- 353964A1.pdf. 83. White House, Legislative Outline for Rebuilding Infrastructure in America, February 12, 2018, https://www.whitehouse.gov/ wp-content/uploads/2018/02/INFRASTRUCTURE-211.pdf; and White House, “Building a Stronger America: President Donald J. Trump’s American Infrastructure Initiative,” February 12, 2018, https://www.whitehouse.gov/briefings-statements/building-stronger- america-president-donald-j-trumps-american-infrastructure-initiative/. 84. Exec. Order No. 13,821, 3 C.F.R. (2018), https://www.whitehouse.gov/presidential-actions/presidential-executive-order- streamlining-expediting-requests-locate-broadband-facilities-rural-america/; and White House, “Presidential Memorandum for the Secretary of the Interior,” January 8, 2018, https://www.whitehouse.gov/presidential-actions/presidential-memorandum-secretary- interior/. 85. A series of hearings on rural broadband were held in 2017. Energy and Commerce Committee, “Hearings,” https:// energycommerce.house.gov/hearings/. See also Roslyn Layton, “Five Flawed Assumptions of Broadband Infrastructure Policy,” AEIdeas, March 24, 2017, http://www.aei.org/publication/five-flawed-assumptions-broadband-infrastructure-policy/. 86. Rural Broadband Expansion Act, H.R. 4308, 115th Cong.; New Deal Rural Broadband Act of 2017, H.R. 8000, 115th Cong.; RURAL Broadband Act of 2018, S. 2970, 115th Cong.; RURAL Broadband Act of 2018, H.R. 6073, 115th Cong.; Rural Broadband Permitting Effi- ciency Act of 2018, H.R. 4824, 115th Cong.; Rural Broadband Deployment Streamlining Act, S. 1363, 115th Cong.; and Office of Rural Broadband Act, S. 2959, 115th Cong. 87. Tax Cuts and Jobs Act, Pub. L. No. 115-97. 88. Michelle Di Ionno and Michael Mandel, “Investment Heroes 2016: Fighting Short-Termism,” Progressive Policy Institute, Octo- ber 11, 2016, http://www.progressivepolicy.org/publications/investment-heroes-2016-fighting-short-termism/. 89. John Eggerton, “GOP Bills Target RUS Funds to Unserved Areas,” Multichannel News, June 14, 2018, https://www.multichannel. com/news/gop-bills-target-rus-rural-funds-to-unserved. 90. Pub. L. No. 115-22. 91. Roslyn Layton, “FCC’s Online Privacy Rulemaking Exposes Partisan Endgame of Corporate Favoritism,” InsideSources, October 31, 2016, http://www.aei.org/publication/fccs-online-privacy-rulemaking-exposes-partisan-endgame-of-corporate-favoritism/. 92. Roslyn Layton, “Is the Media Misleading Readers on the FCC?,” AEIdeas, August 29, 2017, http://www.aei.org/publication/ is-the-media-misleading-readers-on-the-fcc/. 93. Steve Pociask, “A Better Way for Online Consumer Privacy,” Forbes, March 23, 2017, https://www.forbes.com/sites/ stevepociask/2017/03/23/a-better-way-for-online-consumer-privacy/. 94. Roslyn Layton, “FCC Privacy Regulation Will Limit Competition in a Market That Really Needs It: Online Advertising,” AEIdeas, March 11, 2016, http://www.aei.org/publication/fcc-privacy-regulation-will-limit-competition-market-really-needs-online-advertising/. 95. HarrisX, “Inaugural Tech Media Telecom Pulse Survey 2018,” April 2018, http://harrisx.com/wp-content/uploads/2018/04/ Inaugural-TMT-Pulse-Survey_-20-Apr-Final.pdf. 96. Social Media Privacy Protection and Consumer Rights Act of 2018, S. 2728, 115th Cong., 2nd sess., § 3 (2018). 97. David Redl, “New Data Show Substantial Gains and Evolution in Internet Use,” US Department of Commerce, National Tele- communications and Information Administration, June 6, 2018, https://www.ntia.doc.gov/blog/2018/new-data-show-substantial- gains-and-evolution-internet-use. 98. Federal Trade Commission, “FTC Announces Hearings on Competition and Consumer Protection in the 21st Century,” press release, June 20, 2018, https://www.ftc.gov/news-events/press-releases/2018/06/ftc-announces-hearings-competition-consumer- protection-21st. 99. US Department of Commerce, National Telecommunications and Information Administration, “Request for Comments on Developing the Administration’s Approach to Consumer Privacy,” September 25, 2018, https://www.ntia.doc.gov/federal-register- notice/2018/request-comments-developing-administration-s-approach-consumer-privacy. 100. Roslyn Layton, “Privacy Regulation Insanity: Making the Same Rules and Expecting a Different Outcome,” AEIdeas, June 21,

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2018, http://www.aei.org/publication/privacy-regulation-insanity-making-the-same-rules-and-expecting-a-different-outcome/. 101. Roslyn Layton, “How the GDPR Compares to Best Practices for Privacy, Accountability and Trust,” Aalborg University, March 31, 2017, https://ssrn.com/abstract=2944358. 102. For specific recommendations, see Roslyn Layton, “How Market Solutions Promote Online Privacy,” submission to the Federal Trade Commission, August 20, 2018, https://www.ftc.gov/system/files/documents/public_comments/2018/08/ftc-2018-0051-d-0021- 152000.pdf. 103. Roslyn Layton and Michael Horney, “Innovation, Investment, and Competition in Broadband and the Impact on America’s Digi- tal Economy” (working paper, Mercatus Center at George Mason University, Arlington, VA, August 12, 2014), https://www.mercatus. org/publication/innovation-investment-and-competition-broadband-and-impact-america-s-digital-economy. 104. George Stigler, “The Theory of Economic Regulation,” Bell Journal of Economics and Management Science 2, no. 1 (Spring 1971): 3–21, https://www.jstor.org/stable/3003160?seq=1#metadata_info_tab_contents. 105. Ethan Baron, “SV150: Companies Set Records for Profitability and Productivity,” Mercury News, May 1, 2017, https://www. mercurynews.com/2017/05/01/sv150-companies-set-records-for-profitability-and-productivity/. 106. Raymond Zhong, “Worried About Big Tech? Chinese Giants Make America’s Look Tame,” New York Times, May 31, 2018, https:// www.nytimes.com/2018/05/31/technology/china-tencent-alibaba.html. 107. Brent Skorup and Christopher Koopman, “How FCC Transaction Reviews Threaten Rule of Law and the First Amendment” (working paper, Mercatus Center at George Mason University, Arlington, VA, May 19, 2016), https://www.mercatus.org/publication/ how-fcc-transaction-reviews-threaten-rule-of-law-first-amendment; and Christopher S. Yoo, “Merger Review by the Federal Commu- nications Commission: Comcast-NBC Universal,” University of Pennsylvania Law School, 2014, https://scholarship.law.upenn.edu/ faculty_scholarship/1543. 108. Roslyn Layton, “Net Neutrality Will Be Reincarnated as Platform Regulation,” AEIdeas, December 20, 2017, http://www.aei.org/ publication/net-neutrality-will-be-reincarnated-as-platform-regulation/. 109. Roslyn Layton, “Does Net Neutrality Spur Internet Innovation?,” American Enterprise Institute, August 23, 2017, http://www.aei. org/publication/does-net-neutrality-spur-internet-innovation/. 110. Roslyn Layton, “Summarizing the Harms of the FCC’s 2015 Internet Regulation,” AEIdeas, December 13, 2017, http://www.aei. org/publication/summarizing-the-harms-of-the-fccs-2015-net-neutrality-rules/. 111. Federal Communications Commission, “2018 Broadband Deployment Report,” February 2, 2018, https://www.fcc.gov/reports- research/reports/broadband-progress-reports/2018-broadband-deployment-report. 112. George S. Ford, “Net Neutrality, Reclassification and Investment: A Counterfactual Analysis,” Phoenix Center for Advanced Legal and Economic Public Policy Studies, April 25, 2017, https://papers.ssrn.com/abstract=2982436. 113. Jonathan Spalter, “Broadband CapEx Investment Looking up in 2017,” US Telecom, July 25, 2018, https://www.ustelecom.org/ blog/broadband-capex-investment-looking-2017. 114. Ajit Pai, testimony before the Committee on Commerce, Science, and Transportation, US Senate, August 16, 2018, https://www. fcc.gov/document/chairman-pai-testimony-senate-commerce-committee. 115. Federal Communications Commission, “FCC Releases Restoring Internet Freedom Order,” January 4, 2018, https://www.fcc.gov/ document/fcc-releases-restoring-internet-freedom-order. 116. Roslyn Layton, “The More Hysterical the Media Gets About Net Neutrality, the Less Credibility They Have,” Forbes, December 15, 2017, https://www.forbes.com/sites/roslynlayton/2017/12/15/the-more-hysterical-the-media-gets-about-net-neutrality-the-less-you- should-believe-it/. 117. Layton and Struble, “Net Neutrality Without the FCC?”; and Federal Trade Commission, “FTC, FCC Outline Agreement to Coordinate Online Consumer Protection Efforts Following Adoption of the Restoring Internet Freedom Order,” press release, December 11, 2017, https://www.ftc.gov/news-events/press-releases/2017/12/ftc-fcc-outline-agreement-coordinate-online-consumer- protection. 118. US House of Representatives, “Motion to Discharge a Committee from the Consideration of a Resolution,” 115th Cong., 2nd sess., May 17, 2018, http://clerk.house.gov/115/lrc/pd/petitions/DisPet0011.xml.

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119. Maeve P. Carey, Alissa M. Dolan, and Christopher M. Davis, “Congressional Review Act: Frequently Asked Questions,” Congres- sional Research Service, November 17, 2016, https://www.hsdl.org/?abstract&did=796879. 120. Richard S. Beth, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act, Congressional Research Service, October 10, 2001, https://www.senate.gov/CRSpubs/316e2dc1-fc69-43cc-979a-dfc24d784c08.pdf. 121. Margaret Harding McGill, “White House Backs Net Neutrality Repeal,” Politico Pro, January 23, 2018. 122. TechFreedom, “CRA Resolutions Cannot Legally Protect Net Neutrality,” press release, May 14, 2018, http://techfreedom.org/ cra-resolutions-cannot-legally-protect-net-neutrality/. 123. Supreme Court of the United States Blog, “Berninger v. Federal Communications Commission,” http://www.scotusblog.com/ case-files/cases/berninger-v-federal-communications-commission/. 124. University of Maryland School of Public Policy, Program for Public Consultation, “Net Neutrality Survey,” http://www. publicconsultation.org/wp-content/uploads/2017/12/Net_Neutrality_Quaire_121217.pdf; and Edward Graham, “Democrats’ Net Neu- trality Push Resonates with Base, Poll Shows,” Morning Consult, May 23, 2018, https://morningconsult.com/2018/05/23/democrats- net-neutrality-push-resonates-with-base-poll-shows/. 125. Brent Skorup, “No, ‘83% of Americas’ Do Not Support the 2015 Net Neutrality Regulations,” Technology Liberation Front, May 15, 2018, https://techliberation.com/2018/05/15/no-83-of-americans-do-not-support-the-2015-net-neutrality-regulations/. 126. Hart Research Associates, “Public Attitudes Regarding the Federal Communications Commission’s Approach to Dealing with the Proposed Net Neutrality Issue,” February 2015, http://www.progressivepolicy.org/wp-content/uploads/2015/02/2015.02_Survey_FCC- Approach-to-Net-Neutrality.pdf. 127. Nick Gillespie, “Having Failed at Making Edible Burgers, Burger King Tries to Explain Net Neutrality,” Reason Foundation, Jan- uary 25, 2018, https://reason.com/blog/2018/01/25/having-failed-at-making-edible-burgers-b. 128. Al Franken, “We Must Not Let Big Tech Threaten Our Security, Freedoms and Democracy,” Guardian, November 8, 2017, https:// www.theguardian.com/commentisfree/2017/nov/08/big-tech-security-freedoms-democracy-al-franken. 129. Mark Jamison and Roslyn Layton, “Beyond Net Neutrality: Policies for Leadership in the Information, Computing, and Network Industries,” American Enterprise Institute, June 14, 2016, http://www.aei.org/publication/beyond-net-neutrality-policies-for- leadership-in-the-information-computing-and-network-industries/. 130. Roslyn Layton, “Which Open Internet Framework Is Best for Mobile App Innovation? An Empirical Inquiry of Net Neutrality Rules Around the World” (thesis, Aalborg University, 2017), http://vbn.aau.dk/en/publications/which-open-internet-framework-is- best-for-mobile-app-innovation(b1f05c8d-b31e-47cd-b19d-bcf6893e7e5b).html. 131. Gerald C. Wright Jr. and Michael B. Berkman, “Candidates and Policy in United States Senate Elections,” American Political Sci- ence Review 80, no. 2 (June 1986): 567–88, http://www.jstor.org/stable/1958274. 132. David S. Lee, Enrico Moretti, and Matthew J. Butler, “Do Voters Affect or Elect Policies? Evidence from the U.S. House,”Quar - terly Journal of Economics 119, no. 3 (August 1, 2004): 807–59, https://academic.oup.com/qje/article-abstract/119/3/807/1938834. 133. Pew Research Center, Economic Issues Decline Among Public’s Policy Priorities, January 25, 2018, http://www.people-press.org/ 2018/01/25/economic-issues-decline-among-publics-policy-priorities/. 134. Gallup, “Most Important Problem,” https://news.gallup.com/poll/1675/most-important-problem.aspx. 135. The term “wedge” was reportedly coined by Washington Post columnist David Broder. David Broder, “Democrats in the South,” Free Lance-Star, October 18, 1986, https://news.google.com/newspapers?nid=1298&dat=19861018&id=C4QwAAAAIBAJ&sjid=YosDAA AAIBAJ&pg=4656,3354061&hl=en. 136. James Benjamin Taylor, “Do Wedge Issues Matter? Examining Persuadable Voters and Base Mobilization in the 2004 Presidential Election” (thesis, Georgia State University, Atlanta, GA, April 21, 2009), https://scholarworks.gsu.edu/political_science_theses/25. 137. D. Sunshine Hillygus and Todd G. Shields, The Persuadable Voter: Wedge Issues in Presidential Campaigns (Princeton, NJ: Princ- eton University Press, 2009). 138. Elmer E. Schattschneider, The Semisovereign People: A Realist’s View of Democracy in America (Boston, MA: Cengage Learning, 1960). 139. Cecilia Kang, “Senate Democrats Win Vote on Net Neutrality, a Centerpiece of 2018 Strategy,” New York Times, May 16, 2018,

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https://www.nytimes.com/2018/05/16/technology/net-neutrality-senate.html. 140. Senate Democrats, “Dems, Advocates, Tech Companies & More Come Together for National Day of Action on Net Neutrality,” YouTube video, February 27, 2018, 11:50, https://www.youtube.com/watch?v=cZIb1pKHf5w. 141. Klint Finley, “Why Net Neutrality Will Be a Campaign Issue in 2018,” Wired, December 21, 2017, https://www.wired.com/story/ why-net-neutrality-will-be-a-campaign-issue-in-2018/. 142. David McCabe, “Democrats Bet on Net Neutrality Voters in 2018,” Axios, May 16, 2018, https://www.axios.com/net-neutrality- repeal-democrats-2018-midterms-1526416080-66d6df00-8b43-4ff2-bc16-9238a3f9b187.html. 143. McCabe, “Democrats Bet on Net Neutrality Voters in 2018.” 144. McCabe, “Democrats Bet on Net Neutrality Voters in 2018.” 145. McCabe, “Democrats Bet on Net Neutrality Voters in 2018.” 146. Ronald Brownstein, “Can Millennials Save the Democratic Party?,” Atlantic, March 4, 2017, https://www.theatlantic.com/politics/ archive/2017/03/can-millennials-save-the-democratic-party/518523/; and Pew Research Center, The Generation Gap in American Poli- tics, March 1, 2018, 8–12, http://www.people-press.org/2018/03/01/1-generations-party-identification-midterm-voting-preferences- views-of-trump/. 147. Scott Keeter, Juliana Horowitz, and Alec Tyson, “Young Voters in the 2008 Election,” Pew Research Center, November 13, 2008, http://www.pewresearch.org/2008/11/13/young-voters-in-the-2008-election/; and Kevin Robillard, “Study: Youth Vote Was Decisive,” Politico, November 7, 2012, https://www.politico.com/news/stories/1112/83510.html. 148. Darrell M. West, “How Millennials and Gun Control Can Change the 2018 Midterm Landscape,” Brookings Institution, April 5, 2018, https://www.brookings.edu/blog/fixgov/2018/04/05/how-millennials-and-gun-control-can-change-the-2018-midterm-landscape/. 149. Ed Kilgore, “The Democratic Wave May Depend on Millennials Becoming Unusually Motivated to Vote,” Daily Intelligencer, May 17, 2018, http://nymag.com/daily/intelligencer/2018/05/democrats-need-unusually-high-millennial-turnout-in-midterms.html. 150. Ronald Brownstein, “The Republican Party’s Generational Bet,” Atlantic, May 17, 2018, https://www.theatlantic.com/politics/ archive/2018/05/the-gop-is-betting-its-majority-on-older-white-voters/560537/. 151. Kristen Soltis Anderson, “Conservatives Have a Millennial Problem,” Weekly Standard, May 11, 2018, https://www. weeklystandard.com/kristen-soltis-anderson/how-conservatives-can-find-a-way-to-appeal-to-millennials. 152. Ben Shapiro, “How Conservatives Can Win Back Young Americans,” Weekly Standard, May 9, 2018, https://www.weeklystandard. com/shapiro-win-back-young-americans. 153. Sarah M. Ovink, Kim Ebert, and Dina Okamoto, “Symbolic Politics of the State: The Case of In-State Tuition Bills for Undocu- mented Students,” Socius 2 (2016): 1–15, http://journals.sagepub.com/doi/abs/10.1177/2378023116647969. 154. See Klint Finley, “Big Tech’s Fight for Net Neutrality Moves Behind the Scenes,” Wired, May 27, 2018, https://www.wired.com/ story/big-techs-fight-for-net-neutrality-moves-behind-the-scenes/; and Mark Jamison, “Drama vs. Analysis: Can We Save Regulation at the FCC?,” AEIdeas, April 19, 2017, http://www.aei.org/publication/drama-vs-analysis-can-save-regulation-fcc/. 155. Joe Vesey-Byrne, “The 16 Best Net Neutrality Memes,” indy100, November 22, 2017, https://www.indy100.com/article/net- neutrality-memes-repeal-fcc-internet-freedom-censorship-premium-costs-save-the-web-8069406; and Know Your Meme, “Net Neu- trality,” accessed May 29, 2018, http://knowyourmeme.com/memes/net-neutrality. 156. Fight for the Future, “Battle for the Net,” https://www.battleforthenet.com/. 157. Fight for the Future, “Feb 27: Operation #OneMoreVote,” https://www.battleforthenet.com/onemorevote/. 158. Fight for the Future, “July 12th: Internet-Wide Day of Action to Save Net Neutrality,” https://www.battleforthenet.com/july12/. 159. Roslyn Layton, “Fact and Fiction in ‘Battle for the Net,’” Forbes, May 13, 2016, https://www.forbes.com/sites/roslynlayton/2016/ 05/13/fact-and-fiction-in-battle-for-the-net/. 160. Paul Bedard, “Soros, Ford Foundation Shovel $196 Million to ‘Net Neutrality’ Groups, Staff to White House,” Washington Exam- iner, February 26, 2015, https://www.washingtonexaminer.com/soros-ford-foundation-shovel-196-million-to-net-neutrality-groups- staff-to-white-house; and Internet Association, “Policy Position: Net Neutrality,” https://internetassociation.org/positions/net- neutrality/. 161. Roslyn Layton, “Astroturfing Plan by Silicon Valley & Radical Allies to Take Control of Internet July 12,” Forbes, June 28, 2017,

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https://www.forbes.com/sites/roslynlayton/2017/06/28/astroturfing-plan-by-silicon-valley-radical-allies-to-take-control- of-internet-july-12/. 162. Peter Roff, “Truth and Bots in the Net Neutrality War,” US News & World Report, February 23, 2018, https://www.usnews.com/ opinion/thomas-jefferson-street/articles/2018-02-23/be-cautious-of-the-lobbying-campaign-to-influence-war-over-net-neutrality. 163. Roslyn Layton, “The California Wildfire and Net Neutrality: The Conversation We Should Really Have,” AEIdeas, August 23, 2018, http://www.aei.org/publication/the-california-wildfire-and-net-neutrality-the-conversation-we-should-really-have/. 164. Brief for Government Petitioners, Mozilla Corporation v. Federal Communications Commission, No. 18-1051(L) (U.S. App. D.C. Aug. 20, 2018). 165. Fight for the Future, “First Responders for Net Neutrality,” https://www.firstrespondersfornetneutrality.com/. 166. John Eggerton, “Net Activists Hammer Judge Kavanaugh,” Broadcasting & Cable, August 27, 2018, https://www. broadcastingcable.com/news/net-activists-hammer-judge-kavanaugh. 167. Brent Skorup, “Judge Kavanaugh Is Right: ISPs Are Speakers, Too,” Mercatus Center, July 31, 2018, https://www.mercatus.org/ bridge/commentary/judge-kavanaugh-right-isps-are-speakers-too. 168. Supreme Court of the United States Blog, “Berninger v. Federal Communications Commission.” 169. Geoff West, “Money Flows into Net Neutrality Debate Ahead of FCC Vote,” OpenSecrets, December 14, 2017, https://www. opensecrets.org/news/2017/12/money-flows-into-net-neutrality-debate-ahead-of-fcc-vote/. 170. Roslyn Layton, “Are Crafty Tactics the Way to Make Internet Policy?,” AEIdeas, February 15, 2018, http://www.aei.org/publication/ are-crafty-tactics-the-way-to-make-internet-policy/. 171. Dan Lyons, “California’s Net Neutrality Law: Will It Survive Judicial Review?,” AEIdeas, October 5, 2018, http://www.aei.org/ publication/californias-net-neutrality-law-will-it-survive-judicial-review/. 172. Ulrich Sarcinelli, “Symbolic Politics,” in The International Encyclopedia of Communication, ed. Wolfgang Donsbach (Malden, MA: Blackwell Publishing, 2008). 173. Editorial Board, “Everyone Is Suing Everyone over Net Neutrality. Congress Should Step in.,” Washington Post, October 2, 2018, https://www.washingtonpost.com/opinions/everyone-is-suing-everyone-over-net-neutrality-congress-should-step-in/2018/10/02/ a1fa90e0-c5ba-11e8-9b1c-a90f1daae309_story.html. 174. Robert Jablon and Sudhin Thanawala, “Judge Blocks US from Ending Protections for Some Immigrants,” News & Observer, Octo- ber 3, 2018, https://www.newsobserver.com/news/nation-world/national/article219468690.html. 175. Roslyn Layton, “The Federalist and Anti-Federalist Arguments for Internet Freedom,” AEIdeas, November 15, 2017, http:// www.aei.org/publication/the-federalist-and-anti-federalist-arguments-for-internet-freedom/; and Roslyn Layton, “A 21st Century Celebration of the Communications Act,” AEIdeas, February 7, 2017, http://www.aei.org/publication/21st-century-celebration- communications-act/. 176. Roslyn Layton, “Title II: A New Way to Collect Fees on Broadband,” AEIdeas, February 25, 2015, http://www.aei.org/publication/ title-ii-new-way-collect-fees-broadband/. 177. Jeffrey Gottfried et al., The 2016 Presidential Campaign—a New Event That’s Hard to Miss, Pew Research Center, February 4, 2016, http://www.journalism.org/2016/02/04/the-2016-presidential-campaign-a-news-event-thats-hard-to-miss/. 178. David A. Jones, U.S. Media and Elections in Flux: Dynamics and Strategies (New York: Routledge, 2016). 179. Thomas E. Patterson, “News Coverage of Donald Trump’s First 100 Days,” Harvard Kennedy School, Shorenstein Center on Media, Politics, and Public Policy, May 2017, https://shorensteincenter.org/wp-content/uploads/2017/05/News-Coverage-of-Trump- 100-Days-5-2017.pdf. 180. John Allen Hendricks and Dan Schill, eds., Communication and Midterm Elections: Media, Message, and Mobilization (New York: Palgrave Macmillan, 2016). 181. Layton, “Is the Media Misleading Readers on the FCC?” 182. Federal Communications Commission, “Chairman Pai Leads a Year of Action and Accomplishment,” https://transition.fcc.gov/ Daily_Releases/Daily_Business/2018/db0124/DOC-348848A1.pdf. 183. Jon Brodkin (@jbrodkin), Twitter, January 24, 2018, 4:39 p.m., https://twitter.com/jbrodkin/status/956265191393644544.

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184. Robert D. Atkinson and Doug Brake, “How Broadband Populists Are Pushing for Government-Run Internet One Step at a Time,” Information Technology & Innovation Foundation, January 23, 2017, https://itif.org/publications/2017/01/23/how-broadband- populists-are-pushing-government-run-internet-one-step-time. 185. Seton Motley, “95 PCCC Pro-Net Neutrality Democrats All Lost on Tuesday—and PCCC Raised Less Than $300 on It,” Washing- ton Examiner, November 7, 2010, https://www.washingtonexaminer.com/95-pccc-pro-net-neutrality-democrats-all-lost-on-tuesday- and-pccc-raised-less-than-300-on-it. 186. Roslyn Layton, “The European Union’s Broadband Challenge,” American Enterprise Institute, February 19, 2014, http://www.aei. org/publication/the-european-unions-broadband-challenge/. 187. James Wilson described this seizing an opportunity to “serve as a vicarious representative of groups not directly part of the legislative process.” James Q. Wilson, ed., The Politics of Regulation (Basic Books, 1980).

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