States like Washington are taking the idea of protecting the open internet into their own hands.

Washington on Monday became the first state to approve its own net neutrality law.

The law, signed on Monday by Gov. Jay Inslee, prohibits internet service providers from blocking or slowing down web content. It also prohibits ISPs from charging internet companies for so-called fast lane access that prioritizes their traffic over the competition.

The law comes almost three months after the Federal Communications Commission voted to dismantle the Obama era rules that ensured all traffic on the internet is treated equally and prevented broadband and wireless providers from blocking or slowing online content.

But as Washington and other states begin passing their own legislation and taking other actions to protect consumers' access to an open internet, it's unclear if the new measures will actually stick. Those actions, however, may set these states on a collision course with the federal government. The FCC's rules banned states from trying to supersede its laws, and there are other looming legal concerns.

"The states' bigger problem is the US Constitution itself, specifically the idea that states can't interfere with interstate commerce," said Matt Schettenhelm, an attorney and government litigation analyst with Bloomberg Intelligence.

How states are fighting back

More than half of US states, including California, Connecticut and Maryland are considering legislation to protect net neutrality. Oregon is close to passing more narrow legislation than the law passed in Washington. It requires companies doing business with state and local agencies to adhere to net neutrality. Governors in several states, including New York, New Jersey and Montana have done the same thing as Oregon through an executive order.

Each of these states is likely to face lawsuits from broadband providers, who will make two arguments. The first comes from the FCC, which said that its action preempts any state attempts to pass their own net neutrality regulations because broadband is considered interstate commerce.

When it comes to the FCC's preemption, legal experts say it's a toss-up on how a court would rule. The FCC's preemption powers are limited. While courts have sided with the FCC when it comes to preempting states' rules on voice over IP services, in 2016 the court said the agency didn't have authority to preempt states that passed laws banning municipally owned broadband networks.

But Ernesto Falcone, the legislative counsel for the Electronic Frontier Foundation said that the FCC may have a hard time arguing it has authority to preempt states. That's because it abdicated authority to oversee broadband networks as part of its order repealing the net neutrality rules.

"How can they have no authority to regulate broadband, but then claim they have wide-reaching authority to ban states from passing their own regulations?" Falcone questioned.

The US Constitution trumps all

Even if the courts don't buy the FCC's preemptive authority in this instance, Washington and other states passing such laws will have a much tougher fight in defending their laws against the second argument: that they violate the US Constitution, which bars states from regulating commerce that crosses state lines.

The argument here is that because broadband service is interstate commerce, it can't be regulated by individual states, because it would impose undue regulatory burdens on companies and would make doing business online too expensive and difficult.

Imagine if each state could impose its own rules for trucks or planes crossing into their territory. ISPs could make the same argument for broadband traffic, arguing that it would be too difficult to change their traffic-management practices at state lines. If the courts accepted this argument, it wouldn't even have to rule whether the FCC had authority to preempt states.

"When states wear their regulator hats, they're very vulnerable," Schettenhelm said.

EFF's Falcone agrees that the state of Washington, in choosing to adopt sweeping net neutrality regulations that affect all broadband services in the state, has chosen the most difficult legal path. But he argues it's not impossible.

Since Congress has failed to act in passing legislation to protect net neutrality and since the FCC reclassified broadband as an unregulated service, states could argue that they should be able to protect their own citizens, he said.

"There is nothing in federal law that regulates privacy and non-discriminatory practices on the internet," he added.

Politics vs. law

Even though Democrats and Republicans on the FCC and in Congress are split on the agency's repeal of net neutrality along party lines, at the state level there is bipartisan support for the 2015 rules. The bill in Washington was drafted and supported by both Democrats and Republicans.

"Constituents that are upset with what is happening to net neutrality protections at the federal level are turning to state and local lawmakers," said Falcone. "And those lawmakers feel like they have to do something to respond."

Schettenhelm said that legal battles -- even if the states lose -- could still be a win for net neutrality supporters.  

"Net-neutrality backers likely believe even a loss helps the larger narrative, since any enduring solution will likely come from Congress," he said. "And that solution isn't coming anytime soon, but the state skirmishes will give the issue even more attention, and might help with the long game."

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