Condition 50: The Fine Print Threatening California’s Internet Protections – Episode 30 of Unbuffered

Christopher Mitchell (00:16)
All right, this is gonna be the fast intro. That’s how I’m thinking of it. I’m Chris Mitchell with the Institute for Local Self-Reliance. He’s Chao Jun Liu with the Electronic Frontier Foundation, where he’s Senior Legislative Associate. I’m Unbuffered, he’s Unbuffered, we’re all Unbuffered. Welcome to the show, Chao.

Chao Jun Liu, EFF (00:32)
Thanks, Chris. Thanks, Chris. How are ya?

Christopher Mitchell (00:35)
I’m doing pretty good. we’re just playing around with different intros, trying to find one that’ll stick. So

Chao Jun Liu, EFF (00:40)
All right.

Christopher Mitchell (00:41)
see how it goes. Today, though, we’re gonna be talking about California, your stomping grounds out there, the home of the Electronic Frontier Foundation for just about ever. deliberately being located on the opposite coast as Washington, DC.

Chao Jun Liu, EFF (00:55)
Ha ha ha ha.

Christopher Mitchell (00:56)
so we’re gonna talk about Condition 50, which seems like it could be any number of things, including like a plague.

but in this case, it’s about the federal government kind of trying to stop California from doing a bunch of pro consumer stuff around the Internet, if California takes the money that Congress set aside for it. So, but before we we go into that Chao, for people who aren’t familiar, do you want to just give a quick what is the Electronic Frontier Foundation? What do y’all do?

Chao Jun Liu, EFF (01:25)
Yeah, so the Electronic Frontier Foundation is is an organization out in the Bay Area. We focus on the edge of civil liberties and the Internet and really the way that we think about it is technology and technology enhancement should not take away your rights, but rather preserve and enhance them. And so we work on three pillars of technologists, activists and and lawyers and we approach all issues with this integrated approach of well

How does this tech work? How do we how do we talk about it? And then how do we bring the cases so that Fourth Amendment, First Amendment, your civil liberties, your rights are brought with you onto the online space and and continue with you in the physical space as well as we enter this age of surveillance. So that’s what we do and that’s who we are.

Christopher Mitchell (02:15)
Yeah, I mean, pioneering work, very well known for taking hard cases and winning. so highly recommend it. Love the organization. People are familiar on with this show at Gigi Sohn She’s on your board. Cory Doctorow,

Chao Jun Liu, EFF (02:29)
Yes.

Christopher Mitchell (02:30)
one of your fellow employees for a lot of years, who’s does great writings about all kinds of stuff. You guys have a great coaching tree, as they say. A lot of good folks,

Chao Jun Liu, EFF (02:39)
Ha ha ha.

Christopher Mitchell (02:39)
including Ernesto Falcon, who is on most recently wearing his new hat, but was where you’re sitting for a long time.

Chao Jun Liu, EFF (02:45)
Yes, Ernesto taught me everything I know about telecom and broadband, and really about this work, and so I owe him a huge debt in that way. And yeah, now he’s actually just down the street from me, so I get to I get to see him and grab lunch every now and again, and it’s awesome.

Christopher Mitchell (03:02)
Excellent. So I feel

like this came out of nowhere for me where all of a sudden, you know, I was getting like notices from people like you and others who are like Condition fifty, all of a sudden California has to like stop upholding laws or stop enforcing laws because the the Trump administration has decided to just throw that in there. it’s it w when did you first hear about this?

Chao Jun Liu, EFF (03:27)
Yeah, so it’s it’s this really tricky thing, right? Because we have to really cast back to the I IJA, the Infrastructure Investment and Jobs Act of twenty twenty one, and that passed and that, you know threw out a huge chunk of money, forty two billion, to build out broadband throughout the United States.

Christopher Mitchell (03:50)
Mm-hmm.

Chao Jun Liu, EFF (03:51)
And so when that came down, you know, that was a huge, huge victory. And

Christopher Mitchell (03:55)
And that’s the BEAD program,

Chao Jun Liu, EFF (03:56)
That is the BEAD program. Yes. Okay.

Christopher Mitchell (03:56)
which we’ve talked about nonstop on this show.

Chao Jun Liu, EFF (04:01)
You’ve that’s that’s been yeah. You’ve had you’ve had five years and carrying to talk about it, right?

Christopher Mitchell (04:08)
We didn’t miss a day.

Chao Jun Liu, EFF (04:12)
but you know, that came down and and in the previous administration, we had some pretty great sort of rules of the road of like, you know, do fiber and really try to have

networks that have longevity that can scale, that can really be there for the people for years to come. With our new administration, shift in leadership, shift in staff, shift in thinking. And part of that was a shift in the contract terms. And so in November last year they included this contract term, Condition 50, into into BEAD. And for folks at home, what Condition fifty does

is essentially say that grantees of the BEAD funding, so we should say state agencies, cannot enforce I’m just gonna read it to you, the

Christopher Mitchell (05:05)
Okay.

Chao Jun Liu, EFF (05:05)
the grantee and age and any agency, instrumentality or subdivision thereof, so the grantee, the state, agrees not to enforce any law, regulation, executive order, contracting requirement or other enforceable obligation that directly or indirectly regulates in any way

the rates, terms, and conditions of broadband Internet service. So and and it goes into a lot more. and they what what they specifically call out is net net net neutrality rules, open access or other utility style rules on broadband Internet service. So what does that mean? What that means is the state cannot enforce, if it has them, net neutrality laws, laws around affordability, laws around just like basically any

conditions upon the the folks that they would be providing money to. And if we put that in contract in in sort of very concrete terms, what that means is if California gives money to AT&T, it can’t enforce rules upon AT&T. If California gives money to Verizon or Comcast or Starlink it can’t enforce rules on those companies. Which

It’s a huge, huge, huge problem when we’re talking about California, which has, as a reminder for folks, it has a the gold statue net neutrality law, 2018’s California SB 882. it has it has a law against throttling. we have a very strong public utilities commission that does create rules around affordability and

requirements to g toward toward providers. For example, go ahead.

Christopher Mitchell (06:57)
Right. sorry, I I think I was

just gonna lead where you were leading, which is we had Ernesto on and we talked a little bit about some of this and the what they were doing. so when when Charter Spectrum decides it wants to merge with Cox, it has to get the permission of the state. And the state says, Okay, well, if you want to merge, you have to do these things. You have to have this low cost plans and you have to, you know, like work with us on this and that. And now the state is now now the federal government is trying to get in between there.

Chao Jun Liu, EFF (07:24)
Yes.

Christopher Mitchell (07:24)
And

basically say that you can’t enforce these this deal that you just struck.

Chao Jun Liu, EFF (07:29)
Exactly, exactly, right? And so Charter Cox, Verizon Frontier merger is another big one in which one of the requirements was to offer a twenty dollar Internet plan to low income Californians and so for the for the over the next decade. So well you know, I’m sure you’ve talked about a lot in this show already, Internet is very expensive.

You know, we have some research coming out of the CPUC actually that says that on across four major urban markets, so that’s which would be San Mateo, Oakland, Los Angeles, and San Diego, it’s about fifty-one dollars per month. Consumer Reports has done the research and says that what, like eighty-four percent of consumers of American consumers pay at least fifty dollars a month. So if we just take that low end and assume everyone is paying fifty dollars much, with which I can tell you right now, I am paying more than fifty dollars a month. Yeah.

Christopher Mitchell (08:20)
Yeah, most people are paying more than fifty dollars. Yeah.

Chao Jun Liu, EFF (08:23)
Like most

Christopher Mitchell (08:23)
Yeah.

Chao Jun Liu, EFF (08:23)
people are paying more than fifty dollars a month. So twenty to fifty, that’s a thirty dollar gap for who knows how many Californians, right? And we’re saying, like, I’m not paying fifty dollars. Most Americans, most people are not paying fifty dollars, they’re paying I think mine is seventy-five.

Christopher Mitchell (08:37)
Mm-hmm.

Chao Jun Liu, EFF (08:37)
my my parents is is also around seventy-five. so we’re actually maybe looking at like a fifty dollar gap per person over a decade. Like, that’s a lot of

And we’re talking about this like we’re in a day and age in which affordability is a big, big deal. Rightly so, for a lot of people.

Christopher Mitchell (08:56)
Yes.

Chao Jun Liu, EFF (08:57)
fifty dollars a month goes a long way. Thirty dollars a month goes a long way. fifty dollars goes even farther, if not more, right?

Christopher Mitchell (09:04)
Right.

So there’s like so there’s a definite a pocketbook impact on that.

Chao Jun Liu, EFF (09:08)
Yes.

Christopher Mitchell (09:08)
Now you mentioned net neutrality. I feel like there may actually be people who aren’t as familiar with that because I feel like it was a big deal. A lot of people got educated on it ten years ago. And then like

Chao Jun Liu, EFF (09:18)
Mm.

Christopher Mitchell (09:18)
when California passed the law and I and then and like there has been more competition and more markets, still not nearly enough to really give most people a good choice.

Chao Jun Liu, EFF (09:27)
Right.

Christopher Mitchell (09:28)
but I feel like we haven’t been fighting about net neutrality nearly as much.

I always think of it as just the principle that, you know, you’re dealing with a company that’s either a monopoly or a near monopoly that’s providing you access to the Internet. And are they giving you unfiltered access or are they basically telling you like we’re gonna we’re basically gonna charge you more to do some things on the Internet than other things because that would be an abuse of that position. And so that’s kind of the fight of net neutrality in my mind. I don’t know if you have a better definition or

if you think about it anymore, or if it’s just something that’s ingrained and you try to avoid thinking about too much after all the scars of the past.

Chao Jun Liu, EFF (10:09)
I’m not sure if you had Harold Feld on the show yet, but I like any time I think of Harold Feld I and and Andy Schwartzman I I there is this deep on admiration but also terror of like, man, y’all have fought this for thirty years and you suddenly gone back and forth and back and forth and back and forth for thirty years and those like

Like those are battle scars that that you look at and you’re like, that’s that’s crazy and I have such respect for you, but I’m also terrified that that may well be my life as well. No, but you you got it right, Chris, and I mean the the sort of pithy way that we put it, the my my colleague Catherine Trinacosta has written about it a lot, is it’s about the user’s ability to choose their experience on the Internet. well like what does that mean, right? So

California’s net neutrality law prevents the provider from blocking, throttling, zero rating, and instituting paid prioritization. Well, what does that mean? Blocking is simple. Like blocking is you can’t go here. throttling is we’re gonna make this sl we’re gonna make something slower than other things. And you know, I’m sure we’ve all had the experience of trying to load a web page and it it takes a little longer than you want it to take and you start getting frustrated and you’re like, I’m gonna go somewhere else instead, or like I’m just gonna go so do something else instead.

That’s thralling. Zero rating is saying that actually like some things don’t cost you data. And so, if you’re on a data plan, then of course just thinking rationally, you’re gonna go do those things instead. It it may be a coincidence then that those things that don’t cost data may be because they have a deal with Facebook or they have a deal with

Christopher Mitchell (11:51)
Right, or

or if you’re if you’re AT&T and you owned media properties, which they did when we were having this fight, you

Chao Jun Liu, EFF (11:57)
Yeah.

Christopher Mitchell (11:58)
know, it’d be this sort of thing where you’re like, okay, well, maybe AT&T makes worse movies and television shows than anyone else, but still more people see those because you don’t have to pay extra to AT&T to use them on their network. And so they’re basically unfairly putting crap content into the world and like distorting the whole market for for visual entertainment.

Because they own wireless handsets and like the the customers that use them basically, that’s messed up. And so I I like I just feel like when I come back to this stuff, like it’s always interesting to me that people like you and me, like there’s this assumption that we’re somehow anti market and we’re like the most pro market people. We we want

Chao Jun Liu, EFF (12:38)
yeah.

Christopher Mitchell (12:38)
to make sure people have choices and options and that it’s not being limited by some guy that’s wearing a monocle twist twisting his mustache, you know? Like

Chao Jun Liu, EFF (12:47)
yeah, I mean it’s like just pulling on that I I know we’re we’re here to talk about Condition fifty in California, but really pulling on that thread, because I I think it it’s just important to the conversation generally, as you noted, most people when it comes to their search of provider, it’s a monopoly or near monopoly. We don’t have choice. And which is why these laws are important. If

And going back to cost part as well, like if I had a choice between four providers and they all did great service, then there what would they be competing on the basis of? They would be competing on the basis of like getting you better service for lower costs. And then we can have the conversation of like some have a better privacy protection, some have better customer service, some have better but we can’t have that conversation because because I’m like because I’m locked into I’m I’m locked into Comcast.

And I’m locked in the combat infinity, that’s all I have. I I don’t have a choice, so I can’t have that conversation. and taking us a little bit farther as well,

If we don’t have net neutrality laws and it’s just a single provider in your area, then that probably can also go to the Netflixes of the world and say, Hey, if you want to serve this area, pay up.

Christopher Mitchell (14:10)
Mm-hmm.

Chao Jun Liu, EFF (14:12)
and that that may sound far fetched, but in South Korea they they they instituted what was called like a semi network party pay system in which their big monopolistic telecom for for South Korea said, Hey

We’re gonna charge everyone like we’re gonna charge the Facebooks, the Netflixes, the Twitches of the world to use our pipes. And their service everyone’s service got worse, got more expensive, and actually Twitch pulled out of I believe it was Twitch that pulled out of South Korea. It’s like this is dot this is just not tenable. This is does doesn’t make sense anymore. Which

Christopher Mitchell (14:45)
Which is

good because like if you’re a small if you’re a competitor and you’re trying to build something up, they don’t even answer your phone calls to figure out how you can pay for priority. So anyway, like what’s interesting about all this net neutrality is to some extent, California settled it. California has all this power because Chao, you have and I realize they’re not all immediate neighbors because California is huge, but you have 40 million people. One out of eight Americans live in California. And so when California makes a rule, it it kind of impacts everyone. So

The net neutrality thing isn’t as big, but you had mentioned, you know, the the throttling concern. And that comes, I think, directly out of life and death experiences regarding the wildfires, right? And that was a pretty big deal.

Chao Jun Liu, EFF (15:26)
Yes. So I mean this is there’s a public safe that th there’s this huge public safety element here and this so here’s how the story goes goes, right? when we were trying to pass this bill in California in twenty eighteen, we were getting a lot of pushback from from the providers, and we were looking like we were about to lose. But what happened was there was the biggest fire at that time in California and the firefighters were fighting that fire and

as they’re doing so obviously we we need to give them as the resources that they need to do so, including fast service so they can communicate with each other. This is before Starlink.

Christopher Mitchell (16:05)
and this is before Starlink, which is right,

which is important because I will say I we talk a lot about the shortcomings, but like Starlink is super important in these scenarios.

Chao Jun Liu, EFF (16:14)
So this is the this is a pre-Starlink era and these firefighters were using Verizon. And Ver as they were like talking going back and forth, Verizon started throttling them. It started slowing down their service. So we’re we’re talking firefighters in the middle of fighting the largest fire at that time in California were getting their service, the ability to communicate with each other slowed down by Verizon.

And and like that is that is horrible. And since then, like w I keep saying biggest fire at that time. I don’t love that we keep breaking that record, but we do. And so this has only become more and more important that that firefighters and really like f first responders and emergency services have that guaranteed fast connection to do their work. And so when that happened, the firefighters came on board with the near child line like really

their support is what helped us push us past the land and get that bill in California. if if California cannot enforce its net neutrality law, that also has a severe impact on our ability to fight fires and to fight natural disasters. and it’s I the the example I I d I use is fires because that is the real life example, but we’re not in this current sort of

atmosphere that that we are in, we’re not only talking about fires, right? We’re talking fires, flooding, landslides, you know, I’m I’m watching news about hurricanes, right? And so it’s

Christopher Mitchell (17:45)
Mm-hmm.

Chao Jun Liu, EFF (17:46)
it’s all natural disasters.

Christopher Mitchell (17:49)
So I wanna I wanna talk in a minute about New York State, which has a law that is kind of similar. They had to make a decision. They they actually seem to have signed it. You and I will talk about all the confusion we have around what’s happening next there.

Chao Jun Liu, EFF (18:03)
Yeah.

Christopher Mitchell (18:05)
But I do wanna I just wanna take a quick pause to talk about the sort of a weird thing about this, which is that ordinarily if a federal agency was gonna insert this.

They

would have to go through a process in which people could comment and there could be lawsuits and things like that. but that is not the case here. So this agency has a lot more power than we ordinarily give agencies because I think the I guess NTIA was exempted from a lot of the American procedures or the sorry, the what is it, the Something Procedures Act administrative procedures.

Chao Jun Liu, EFF (18:40)
administ Administrative Procedures Act, the APA?

Yeah.

Christopher Mitchell (18:43)
Yeah,

like they they basically didn’t have to go through a bunch of hoops in order, in theory, to move faster. We all know how that went. but but so they have like a lot more power to insert that rule than ordinarily they would do. And where we are right now is basically they’ve said to California, you gotta accept these conditions if you want this what $1.8 billion. Is that right? It’s like it’s like it’s a lot of money. I forget exactly what it is.

Chao Jun Liu, EFF (19:12)
Yeah, it’s it’s either so to add to the trickiness and confusion, right, there is there are the deployment funds and the non deployment funds. The deployment

Christopher Mitchell (19:20)
Right.

Chao Jun Liu, EFF (19:20)
funds are one point four billion, so that is that we know. And there has been a lot of go back and forth about what about what they’re doing with the non deployment funds and how they want to

let’s say hold it hostage, for for other purposes. And so it could be one point four, it could also be one point eight, one point nine, but a a a lot

Christopher Mitchell (19:42)
Right. So there’s

Chao Jun Liu, EFF (19:43)
of money.

Christopher Mitchell (19:43)
there’s a bunch of money that Congress set aside. And Trump’s friends in DC have arbitrarily decided to like limit how much money can go out to the states, mostly to serve Trump voters, to be clear. Like people that are living in very rural areas, they tend to be more conservative and much more friendly to Trump. and so like that’s its own thing. But so Governor Newsom in California has to make this call. In other states, it’s been other people, right? But in this case,

Governor Newsom is the one that has to make a decision. and where a lawsuit would happen changes after he’s made the decision, I guess. Like there’s just there’s all kinds of nuances that I don’t want to get lost in, but just to give people a little taste of like, this is not your sort of ordinary thing where it’s like a very clear place to appeal and and everything else.

Chao Jun Liu, EFF (20:32)
Yeah. I wanna be a little careful here because I I’m not an attorney and I just

Christopher Mitchell (20:38)
Mm-hmm.

Chao Jun Liu, EFF (20:39)
and I don’t play one on TV. so I wanna be a little careful here, but to my understanding the decision currently lies with with Governor Newsom. if they were to sue now and and reject concession fifty now before accepting the funds that

that puts them in a in a certain playing field of like they’re arguing they’re talking about the contract as a whole. if they do it after they accept the funds, then it shifts the arena and it shifts the the incentives as well because now the other side can say like, well look, you’ve you’ve signed this agreement, so you and and now, you know, w you get into the whole like, well, you have you have to now disperse it as well to the subgrantees

and and it j it just gets more confusing and and and and obviously at that point they can hold over your heads like, hey, like here’s one point six or one point four to one point nine million dollars.

Christopher Mitchell (21:48)
Mm-hmm.

Chao Jun Liu, EFF (21:48)
Do you wanna give that up? And as it as it is going as as it may actively be flowing to constituents, right? That just becomes a the calculus just becomes a little different.

Christopher Mitchell (21:59)
Now you I don’t know if it was you or but but someone that we’ve worked with has run some numbers. I think maybe it was public knowledge.

Chao Jun Liu, EFF (22:05)
Harold f

Harold felt that public knowledge ran some numbers.

Christopher Mitchell (22:08)
And so, you know, one point four to one point nine billion dollars seems like a lot of money until you look at the alternative, it turns out, and that that there’s actually

Chao Jun Liu, EFF (22:17)
Yeah.

Christopher Mitchell (22:18)
more money at stake if you agree to these hostage terms, right?

Chao Jun Liu, EFF (22:22)
Yeah, so so Harold Feld’s at public again, like I’ve I’ve mentioned him before, he is he’s the best.

Christopher Mitchell (22:29)
yeah, he’s lovely gentleman. impressive. Yeah.

Chao Jun Liu, EFF (22:34)
I I sh I I shudder at the day in which he and and Andy Schwartzmann retire. That is gonna be

Christopher Mitchell (22:39)
Mm-hmm.

Chao Jun Liu, EFF (22:39)
such a huge loss for for us. but the numbers that he ran, he thinks that it will and if if you guys do show notes, I’ll send you the article so that you can include it.

he thinks that it will end up costing the state of California between five to sixteen billion in existing broadband benefits. And so from that perspective then you’re trading let’s this is let’s just take the conservative number, right? It’s gonna be one point four two in deployment funds versus five billion in terms of as going back to like the merger requirements and everything else that California already has in place.

From that perspective, right, the the as as the kids say, the math is not mathing.

Christopher Mitchell (23:28)
Right. Now, to to just add on to the confusion though, it seems like New York has agreed to Condition 50 and move forward. And and by seems to, I feel like there’s a lot of people who don’t have an incentive to be very clear on what’s happening because everyone’s looking around trying to figure out what happens next. But it seems like Cal it seems like New York, which has the Amer has the Affordable Broadband Act, which requires providers provide a service. This is very clearly rate regulation.

The

and the the courts have okayed this and said it works. The Supreme Court decided not to review that decision. And so they’re they’re very much in the clear that they are within their rights to require this. Now they seem to have accepted Condition fifty. And I think we’re waiting to see what happens when someone gets the money and then in theory could then sue and say that they’re violating the agreement, I guess. and I I say that because neither one of us really knows, I think.

Chao Jun Liu, EFF (24:23)
Right,

right. It’s it’s we don’t know like there is there’s an official announcement that went out that said they signed the agreement. but they have but to to our knowledge, to my knowledge I will say I will not throw anyone else under the bus. To my knowledge, to my knowledge, they have the it seems like they have not

maybe given out that money yet or or they’re waiting to like I I it’s yeah, like I don’t know.

Christopher Mitchell (24:56)
I mean, NTIA refuses to finalize the rules, so it wouldn’t surprise me if they’re waiting on something to complete their contracts with the the subgrantees. I mean, there’s any number of things that could be on any number of of desks waiting for resolution because this whole process has been such a disaster. it’s just it’s really a mess. you know, it’s incredibly

Chao Jun Liu, EFF (25:14)
Yes Yeah.

Christopher Mitchell (25:18)
frustrating. so so like i but I guess the thing that that I that I bring up New York for in part.

Is

because like we’re we’re waiting to see what happens there. And it’s just such a a reminder that when I was trying to remember the correct honorific, when Secretary Lutnick came in and and Arielle the NTIA administrator

Chao Jun Liu, EFF (25:42)
Arielle Roth.

Christopher Mitchell (25:43)
Arielle Roth, you know, they were all like, We gotta speed this up, we gotta be faster. And it’s not fair that the NTIA previously just made up stuff that wasn’t there and that slowed everything down.

And then you literally, which I think is an incorrect characterization for what it’s worth, not a hundred percent incorrect, but like somewhere like sixty to seventy percent, I would say. I don’t want to defend that number,

Chao Jun Liu, EFF (26:03)
Yeah.

Christopher Mitchell (26:03)
but like, you that’s what it feels like in the gut. And they are now just inserting their own provisions that are not pushed by Congress, have no basis in text, and are and just because they have their preference. And what’s fascinating to me is that previously, like, I mean, are we talking about a year ago?

Ted Cruz and President Trump were talking about actually saying that if states took this money, they would not be able to have any AI regulations. And so, like, they’ve been they’ve been kicking around all kinds of ideas that are unrelated to to expanding rural Internet access to tie into these things. And then they settled on this one called Condition 50 to try to hamstring California, it looks like. It doesn’t really apply to like Mississippi or Texas or anything, right? Like it’s sort of it’s sort of fascinating, frustrating.

Chao Jun Liu, EFF (26:52)
Fascinating, frustrating. I mean it’s taking us a little off topic, but this is I mean, this is part and parcel of this administration is that they will use one thing and tie it to another thing. And so it’s never just about the one thing that the thing that you think you’re talking about, right? And we see this I mean EFF does a lot of work when it comes to privacy. And and one thing that we that we think a lot about is and we’ve been bringing suits about and we’ve been advocating about against or like around is

You know, all these ostensible ideas around you know, let’s get like a voter database, let’s get this, let’s get that, it’s like, okay. well one database for them all is not just not a good idea. it’s it’s gonna be so susceptible to susceptible to hacks, it’s gonna be so susceptible to being used for other purposes. We n w we know that it’s being used for other purposes. We know this that this mingling of data is not being used for the the specific thing that that they said it was gonna be used for.

And this is just another one of those of like, if you do this, then we talk about air preemption. It’s like, well, how did that get into the picture? but it’s it’s frustrating, it’s confusing, but it’s it is it is the is it is a signature of this administration to to confuse the issue and to say that they’re gonna move fast and then somehow move incredibly haphazardly.

Which turns out to be slow.

Christopher Mitchell (28:21)
Well, I

I mean I I I’m just gonna do the incredibly cool thing of quoting myself because I had an opportunity to share a comment with David Dayan, who wrote about this just recently in the American Prospect. I think it was a good article.

Chao Jun Liu, EFF (28:35)
Yes.

Christopher Mitchell (28:36)
And and I I was just think trying to imagine when he he asked me about it, and I was trying to think quickly of like how to sum up my anger, my my complicated feelings, and just the fact that like

I will say that like there were people who felt that NTIA under Biden was too pro-labor or you know, then they were acquiring too much stuff. So it’s not unheard of that one tries to bundle some priorities in with something else that’s moving. but it did strike me that that it is a nice throwback that like this is a situation. I mean, as you’re like reading the news right now, or cause we’re recording this right before we release it, you know,

Chao Jun Liu, EFF (29:13)
Yeah.

Christopher Mitchell (29:13)
we’ve got like all of this corruption coming out where people are like trying to figure out how to take

government money for themselves, you know, like Trump himself, many of his secretaries have like doubled their wealth. They’ve they’ve Elon Musk has looted like, you know, the federal government, it feels like. And here you have Arielle Roth and and Secretary Lutnick, and they’re not trying to steal any of this money. They’re just trying to make sure it doesn’t actually go to Internet access and they’re trying to do a good favor for AT&T and Comcast and Charter. That’s the kind of old school

you know, like like activity that I feel like we wish we were in. It’s not they’re not stealing money from, you know, for themselves. They’re just trying to like screw over normal people like us in orders for it to give AT&T some more power. You know, like that’s I don’t know, it’s like a throwback to a nicer era.

Chao Jun Liu, EFF (30:07)
it’s it’s it’s always cool to quote yourself. It’s not procrastination if you’re studying yourself, right? It’s just it’s just good work.

Christopher Mitchell (30:14)
Yeah, and I mean I I we talked about the numbers b of the dollars involved, but the number of people who are involved. I mean, I I haven’t looked at the numbers. If I had to guess, we’re talking about several hundred thousand locations in California. I’m guessing. I don’t know if you have it off the top of your head. whereas there are probably 10 million people who are impacted negatively if Condition 50 goes through. And so on the one hand, we have the most expensive locations, the hardest to reach in California. We’ll get some amount of money. Now

Chunk

of that money, I don’t know, maybe half or 40%. I don’t remember how it breaks down. A lot of that’s going to go to satellite, right? Maybe it’s 30%. those people aren’t getting any benefits. Like, this is just ridiculous to like for I’ve I’ve said this a hundred times that like the idea of like giving rural expansion dollars to a technology that is already there today and was there yesterday, and

Chao Jun Liu, EFF (31:04)
Yeah.

Christopher Mitchell (31:05)
like will be there tomorrow, regardless of whether or not you give federal taxpayer dollars to it. Like it’s ridiculous to do

Chao Jun Liu, EFF (31:09)
Yeah.

Christopher Mitchell (31:10)
that. But like we’re still talking about.

There’s there’s on the order of ten to twenty times as many people who will be harmed by Condition fifty as will be helped if it goes into effect. That’s it’s pretty significant in my mind.

Chao Jun Liu, EFF (31:24)
Yeah, I I I was gonna say don’t quote me on this, but this is live, so this is near live, so I think it’s about like I think we’re gonna serve twenty s two hundred and seventy thousand, I think was that was the was the number for BEAD.

Christopher Mitchell (31:40)
Sure. So it’s probably, I mean,

and it’s always difficult, but like that’s locations. And so most

Chao Jun Liu, EFF (31:44)
That right.

Christopher Mitchell (31:45)
of those are probably not apartment buildings. They’re probably single family homes,

Chao Jun Liu, EFF (31:49)
Right.

Christopher Mitchell (31:49)
some apartment buildings. And so, you know, you would assume that’s probably on the order of 700,000 people, probably. and so you have on the one hand 700,000 people, of which some significant proportion are gonna get something they already could get, a satellite. So we’re really talking about probably like 400, 500,000 people that are gonna get something better in theory.

versus the millions of people and probably on the order of like almost 10 million people who will be harmed directly in some way by no longer being able to enforce merger conditions and other things as opposed to the nebulous b negatives that everyone would get if we actually see the big cable and telephone companies taking advantage of a loss of net neutrality protections.

Chao Jun Liu, EFF (32:30)
Right. right. It’s it’s it’s all those who would who would get the low income plans from Verizon because of the merger requirements. It’s as you say, it’s all it’s the it’s all that that the nebulous factors of it. but there is like there is also the the concrete of or a little more concrete of just the public safety aspect of it. And and, you know.

I don’t I can’t predict what the next fire will look like. I don’t want to be able to like that is not a that

Christopher Mitchell (33:00)
Mm-hmm.

Chao Jun Liu, EFF (33:00)
is not a superpower I want actually. But when you put it but like they need those tools. And I may not be able to tell I can’t tell you whether or not that will help them fight a fire like five days faster or not, but the fact of the matter is like it will help them and it will save lives and then like that is something that we cannot really place a value on.

Christopher Mitchell (33:21)
Yeah,

I try to give people the benefit of the doubt. And ultimately, there are people in Verizon making decisions. And I like to think that they would not throttle, even if there’s no law requiring it. I would like to think that they would not throttle firefighters who are responding. you know. I also would like to think that Starlink wouldn’t throttle in that situation. But it’s concerning when you see that Ukraine loses the ability to use Star Shield, it sounds like, and

You we have no, I mean it’s days later and we don’t understand who made that decision, right? And so, like on the one hand, I want to be like, Really, do we really think they’re gonna throttle? But on the other hand, we see these things where someone is making decisions at a high level and we never find out who it was, or at least it takes a while. And so, like, I do think like if I’m sitting here and I said, Well, I don’t think Verizon would throttle on a fire, I don’t want to test the proposition, right? I want to make sure there is a law that says it’s not gonna happen.

Chao Jun Liu, EFF (34:20)
Exactly. Ex and that’s exactly right. That’s exactly it. I mean, would you would any of us would have thought that Verizon would have throttled in twenty eighteen? Like even then it it would have it it’s it’s such a preposterous idea, but it happened. And so as much as we want to expect that level of

You could call it decency, you could call it common sense. You could just say good business practice. let’s

Christopher Mitchell (34:48)
Right, because

we’re not we’re not saying that like I mean, it it is not the case. And if it is, I hope that you’ll tell me because it’ll be hilarious. But like, it’s not the case that like they had an emergency board meeting and the Verizon board of directors was like, you know what? Let’s throttle the firefighters, right? Like that didn’t happen. There was no like middle manager even who was like, let’s throttle the firefighters. What happened is is that they had this massive company and it’s hard to manage. And like through some combination of things, the firefighters were throttled and they were trying to respond in like

get new accounts and things like that, if I remember correctly. And there was a bunch of stuff. And Verizon systems didn’t work well to allow them to even route around that issue. And the thing is is that with a law, suddenly there is an incentive to say, all right, we’re going to make sure that this works for the firefighters. Right.

Chao Jun Liu, EFF (35:36)
Yeah.

I mean it’s the beauty of the beauty of California’s law is that it is a bright line rule. Like it’s yes or no. Are you throttling? Yes or no. And that’s like it’s easier to in my mind it’s much easier to enforce bright bright line rules. And in situations like this, like you want to as as we’re saying, like what you want to give the benefit of the doubt. But belt and suspenders approach to law is the best. And the belt and suspender here is you want them to behave well, you expect them to behave well.

But let’s also have that rule there just in case, and let’s also

Christopher Mitchell (36:06)
Mm-hmm.

Chao Jun Liu, EFF (36:06)
have enforcement there just in case. And so then they are they can act whether or not they’re acting on their own goodwill or or whether because they’re following the law, the the outcome for the folks on the ground, for firefighters, for folks escaping fires for all of that is that they get the seat resources that they need. And that is bottom line, the the outcome that we want.

Christopher Mitchell (36:29)
Right.

So bringing it back to Condition fifty as we wrap up, our understanding is that this is a hard decision, right? I mean, this is one of those things where California has to figure out how to allocate resources. it doesn’t it doesn’t always feel like it, but like government doesn’t have unlimited lawyers. I mean, just literally there are tons of things that like we would like to see government engage in lawsuits that they would almost certainly win on, but they can’t. And so they have to pick their battles. And we are waiting right now to see.

where they side. It sounds like they’re they’re kind of in flipping a coin territory from all the everyone that I’ve heard. We’re not really sure which direction they’re gonna go, but we are expecting a decision very soon, right?

Chao Jun Liu, EFF (37:10)
Yes, California was provided a so so

California is supposed to provide a 30 day extension. We were so we were supposed to make a decision September what thirtieth. we’re giving it a s a an extension, so we have until November first. and as far as like and we haven’t so we’re just sort of waiting then. like we’re doing the work we’re obviously like we’re all doing the work that that we’re doing t to get the outcome that we want, but we’re waiting that we we have until November first. I going back to the to the lawyer’s point, as you said, like

there they’re not unlimited resources. I think it was like a week ago, a week or two ago, the California DOJ just released a press release that said that they had filed their one hundredth lawsuit against the Trump administration. And so they are busy and they are working hard. and if they do this, this is probably their one hundred and first or I mean between now and and two weeks ago they they probably filed like three more lawsuits.

Christopher Mitchell (38:15)
Mm-hmm.

Chao Jun Liu, EFF (38:17)
So that is and I my my sincere hope is that and this comes from just like working with litigators and talking to a lot of attorneys, you know, when they’re developing a case, they can’t really talk to you about it. So my my great sincere hope is that something is happening behind the scenes already, but they just can’t talk about it because in this in service of pending litigation. That is that is my sincere hope. But I don’t know. We’ll see.

Christopher Mitchell (38:46)
Yeah. And we’ll see pretty soon. Hopefully not before the show goes live.

Chao Jun Liu, EFF (38:50)
Yeah. Yeah, I check

my email. We all check our emails like, this happened. Yeah.

Christopher Mitchell (38:55)
Yeah, well we would we would do a very quick recap then if or a very

Chao Jun Liu, EFF (38:58)
Ha ha ha.

Christopher Mitchell (38:59)
quick addendum that we could get out.

Chao Jun Liu, EFF (39:01)
Yeah.

Christopher Mitchell (39:03)
so chat, I want to thank you and I wanna thank EFF for being in the weeds of so many good issues and and and being there at so many key turning points with the history of the Internet. So thank you and and I suspect I might I may see if we can just grab you really quick when we get a resolution and talk about it quickly to explain folks to explain it to folks.

Chao Jun Liu, EFF (39:25)
Yeah, always I mean always happy to talk to you, always happy to chat about this. and EFF, Electronic Frontier Foundation, EFF.org, check out our website. we do you know, net neutrality is something that I work on and and it’s very dear to me, but we also work on privacy issues, first of all issues, intellectual property, copyright, trademark, AI.

Christopher Mitchell (39:47)
AI. I know you’re thinking about

that.

Chao Jun Liu, EFF (39:50)
AI,

police surveillance, commercial, commercial surveillance, commercial privacy. there’s a lot that’s happen. I I remember when I first interviewed for the job and you know you you do your research when you do it when when you go in in an interview and I I just I told my now boss, I was like, you guys do a lot and I cannot I could not I just couldn’t hold it all in my head. But I tried, I really tried.

Christopher Mitchell (40:15)
I mean, yeah.

Yeah, and I mean I think you might have mentioned it to make sure it doesn’t get lost. You guys develop technology. I have privacy brat

Chao Jun Liu, EFF (40:21)
Yes.

Christopher Mitchell (40:21)
brad badger on every one of my browsers that I use.

Chao Jun Liu, EFF (40:24)
Yes,

yes. We also developed technology, Privacy Badger is a plugin that allows you to opt out of basically tracking it sends an automatic signal to to websites and basically opts out for you and for so that websites are not tracking you. And so and I believe we’re like we’re always working on that, upgrading that making sure that that is up to date and and deployed as best as we can.

Yeah, we do a lot. We do we do we do too much. We do too much. But

Christopher Mitchell (40:55)
Ha ha.

Chao Jun Liu, EFF (40:56)
but a but at the same time not enough. Yes. Yes.

Christopher Mitchell (40:58)
Yeah, there’s always more. Yeah, no, I’m familiar. All right, thank you so much.

Chao Jun Liu, EFF (41:03)
Thank you so much. Thank you. Thank you,

Jordan Pittman (41:05)
Thanks for listening to this episode of the Unbuffered Podcast. We have transcripts for this and other episodes available at ILSR.org/podcast. While you’re there, check out our other podcasts from ILSR, including Building Local Power, Local Energy Rules, and the Composting for Community Podcasts. Email us at [email protected] with your ideas for the show. Follow us on Bluesky. Our handle is @communitynets.

You can catch the latest research from all of our initiatives by subscribing to our monthly newsletter at ILSR.org While you’re there, please take a moment to donate. Your support in any amount helps keep us going. Unbuffered is produced by Christopher Mitchell with editing provided by me, Jordan Pittman. Until next time, thanks for listening.

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