Judge Wu’s New York Kangaroo Court for Alleged Internet Traffic Violations

Tim Wu, the self-described “policy advocate,” who coined the term “net neutrality;” who has been a leading activist for preemptively regulating broadband service like a utility despite scant evidence of any problem; who from 2008-2011 was Chair of the pressure group FreePress that ran the notoriously-deceptive “Save The Internet” campaign to force FCC net neutrality regulation that was overturned in court; who has been part of a decade-long PR demonization effort of broadband companies for first not having fast enough broadband speed relative to the world and then for enabling broadband “fast lanes” -- is now the “Senior Enforcement Counsel and Special Advisor” to the New York Attorney General, who is investigating Cablevision, Time Warner Cable and Verizon for allegedly providing broadband service at speeds less than the companies advertise.  

Does this appear to be an impartial investigator/prosecutor that doesn’t already have his mind made up of what his pending law enforcement “investigation” will conclude?

It is supremely ironic that the activist, who literally made a career out of convincing people that broadband providers cannot be trusted to serve their customers without engaging in harmful traffic discrimination, is so obviously and publicly biased against broadband companies -- that he has long publicly advocated that broadband providers should be viewed as guilty until proven innocent, and thus preemptively regulated before any potential net neutrality offense could occur.

The best analogy for this type of biased, discriminatory, and presumed-guilty-until-proven-innocent approach to justice is those notorious remote town kangaroo court systems. They set up “speed traps” to prey on those who happen upon their jurisdiction, and of course find them guilty of speeding even though they had scant warning that they had entered a poorly advertised “slow speed” zone. People so entrapped quickly learn the due process nightmare of the “kangaroo court” racket.

So what’s Mr. Wu’s particular racket here?

This is pretty blatant political advocacy deceptively masquerading under the guise of impartial state law enforcement.

If this was an impartial and fair state law enforcement investigation, why were the investigators apparently the source of the leak of the investigation?

Given that news reports claimed to have seen three separate letters privately sent to three different companies, it seems apparent that the New York Attorney General’s office was the source of the leak here. What single company, let alone three simultaneously, would all supply letters of this sort to different media outlets quickly, when it is clearly not in their interest to do so because they believe they have accurately represented their broadband speeds.

If this was an impartial and fair state law enforcement investigation, why did Mr. Wu give the Washington Post a public interview before he has fully investigated the matter, indicating that he believes the three companies are in fact not offering advertised speeds, because he wants to measure the speed of the service through the interconnection points of other carriers, a part of the service that the companies cannot fully control, and that companies like Netflix and Level 3 like to game for PR and negotiating advantage.  

Per the Washington Post: “When a company such as Time Warner Cable advertises speeds of, say, 300 megabits per second, "they don't promise you'll have 300 Mbps to Time Warner Cable — they promise 300 Mbps to the Internet," said Wu in an interview. "That requires going through interconnection. And that's a bottleneck they control and can substantially affect the speeds the consumer experiences."”

Kangaroo court systems imagine they can make up their own definitions of the market they are investigating and make up what is illegal after the fact.

Mr. Wu’s rigged game here is that Mr. Wu has telegraphed that his “measurement of broadband speed” will be based on his own personal definition of the Internet, and his preferred policy advocacy definition of the Internet – that by the way is also necessary to demonize broadband providers as violators of net neutrality and enemies of a “free and open Internet.”

Unfortunately for Mr. Wu’s planned enforcement/advocacy scheme, an Internet Service provider’s network is itself part of the Internet, not separate from it, according to Congress and the Supreme Court.

Congress in the 1996 Telecommunications Act said: “The term ‘Internet’ means the international computer network of both Federal and non-Federal interoperable packet switched data networks.”

The Supreme Court in its Brand X decision upholding the FCC’s classification of cable broadband as an information service defined the Internet as a “network of interconnected computers.”   

In sum, Mr. Wu is improperly using a state law enforcement process as a PR and policy advocacy stunt and pressure tactic to try and force ISPs to enter into interconnections agreements based on his desired terms and definitions -- not those recognized in a real U.S. court of law.

The citizens of New York and the businesses that do business there, deserve better, i.e. impartial administration of justice, from “Senior Enforcement Counsel and Special Advisor” to the New York Attorney General Mr. Wu and from the New York State Attorney General’s office.


Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.