What one Washington abolished, another Washington seeks to restore. After the FCC and the U.S. Congress scrapped federal regulations protecting both net neutrality and privacy for ISP customers, several states started working on their own safeguards. With broad support from the governor, attorney general, and legislators of both parties, Washington State has been one of the most aggressive. Its new net neutrality legislation could make it a test case not only for telecom policy but for the country’s perennial power struggle between federal and state governments.
“We have a long tradition in this state of working across party lines to protect people’s privacy and enact practical consumer protection laws,” says Drew Hansen, a trial lawyer and Democratic state representative whose district includes communities across the bay from Seattle. His bill on net neutrality passed the state house of representatives and senate with bipartisan support, and was signed by governor Jay Inslee on March 5. His ISP privacy bill, which faltered last year, is making its way through the house again, and a state senator has introduced a similar bill.
Hansen’s bills aren’t the only Washington-based efforts against the FCC. State Attorney General Bob Ferguson is also preparing a legal challenge to the net neutrality decision, along with attorneys general from more than 20 other states and the District of Columbia.
Governor Inslee, has not joined his peers in a handful of states, such as Montana and New York, in signing an executive order that applies economic pressure, requiring ISPs that want state contracts to follow net neutrality rules.
But he’s backing Hansen’s bills, which go much further: They legally mandate that no ISP can interfere with any state resident’s legal internet traffic. Nor could ISPs collect and exploit information about a customer’s online activity without permission.
They could trigger a legal battle between the two Washingtons. The Constitution gives the federal government authority over commerce that crosses state lines—as the internet does. In its interpretation of the federal Communications Act that rolled back net neutrality regulations, the FCC also claims that its policy preempts any actions by state and local governments. Privacy regulations, meanwhile, were scrapped by an act of Congress last year.
In a chat with Fast Company, the 45-year-old Hansen explained his strategy to deal with these and other challenges. Following are highlights from our conversation.
Fast Company: Why does the government need to regulate net neutrality and ISP privacy?
Drew Hansen: You don’t want your internet service provider, particularly because in many areas they have an effective monopoly… to decide what lawful content you download, how fast or slow it loads, and how much you pay for [content from different sources].
It’s similar with ISP privacy. Major ISPs have been very clear that they are interested in using your private search and browsing history to market to you. There are various ways to work around this if you are dealing with someone like a Facebook or a Google, by just not using Facebook, by using browsers that don’t track you. But with your internet service provider… it is very difficult to avoid their omniscient view into what you’re doing on the internet.
Related: How to Roll Your Own Net Neutrality
FC: How challenging has it been to build up political support for your bills?
DH: It has been one of the politically easiest jobs I have had. Everyone—Republicans, Democrats, small business owners, entrepreneurs, teachers, veterans—everyone understands the importance of a free and open internet, which is why my net neutrality bill passed a politically divided Washington State house of representatives by a 93 to 5 margin. [It subsequently passed the house by 35 to 14.]
FC: But isn’t it the federal government’s job to regulate commerce?
DH: It is the state government’s job, traditionally, to enact consumer protection provisions… It would be preferable if Congress were to maintain the net neutrality rules nationwide. If they are unwilling to do that, that doesn’t stop states like Washington from using their own consumer protection authority to maintain those rules at the state level.
FC: Are there some precedents to bolster your case that Washington State has the authority, regardless of what the federal government does?
DH: We did a biometrics bill on a bipartisan basis last year. We have data breach consumer protection bills that we’ve enacted over the years.
FC: Do you expect that Washington may be taken to court over this legislation?
DH: I don’t know… Just because the FCC claims it has the power to preempt state laws doesn’t mean that it actually does… And here the FCC is claiming at once that the [Communications Act] lacks any authority by which they could impose broad conduct standards on the internet, but at the same time it somehow grants them extremely broad authority to preempt states from using their general consumer protection powers. And it’s not at all clear to me how those can both be true.
FC: Congress might pass some type of net neutrality legislation that doesn’t satisfy everyone. I think of representative Marsha Blackburn’s proposal that would prohibit blocking or throttling but leave paid prioritization [i.e., fast lanes] open. Are you in a bind then?
DH: I don’t think so… If Congress were to ban blocking and ban throttling but not ban paid prioritization, there would be no conflict in a state then acting on its own in banning paid prioritization.
FC: Looking forward, are there any other technology policy battles that might be on the agenda for you in the future?
DH: Until we get net neutrality enacted into law in Washington State and also try to get some real ISP privacy protections… I’m not looking real far beyond that. Those are big enough battles on their own that will make enough of a difference in the lives of our constituents—small businesses, teachers, everyone—that those are the ones we’re fighting right now.
This article was updated on March 6.