Jim Harper

ACLU Off Course

Alex Harris at OpenMarket.org has a good write-up suggesting that the ACLU has lost its way on the question whether there should be net neutrality regulation. He quotes Barry Steinhardt saying, “No longer is the government the greatest threat to free speech online. The threat is now the companies that run the pipes.”

Barry is a friend and one of the nicest people I know. His dips into hyperbole are quotable wonders to behold - at least when they’re in defense of real civil liberties.

Barry, and all my friends at the ACLU, know the power of my blog posts. They no doubt shudder at the thought that I would turn my acid keyboard their way. This time it’s only a gentle chiding, but I say, Fear it! - FEAR THE BLOG POST! - should I lose patience . . . .

June 16, 2008 | Comments |

Viewing 6 Comments

    • ^
    • v
    “No longer is the government the greatest threat to free speech online. The threat is now the companies that run the pipes.”

    Amen!
    • ^
    • v
    It is now both the government and the companies. Companies cannot create policy directly, they have to use the government. Even if they are firmly on the payroll.
    • ^
    • v
    Alex has an excellent post. He writes "the ACLU lately seems to be having trouble making the distinction between private contracts and government mandates. Which is the key issue.

    My concern is that this is really not a black and white issue. The real free market solution is that ISP providers, telecommunication companies, and shippers should have a professional code of conduct that protects the "content" they are transmitting.

    If we were to accept Alex's position on contracts, in the ultimate extreme, this would mean that your phone provider could listen in on your conversations, UPS or Fedex could open your packages, and that even the post office, as a private corporation, could open your mail and read it. Obviously this would be an untenable situation since corporate control of the flow of information would be a major threat to free speech.

    I fully understand that civil rights and private contracts are different. Nevertheless, I would advocate that there should be limits on how far a "contract" can go in depriving one of civil liberties. Just because you are paying an ISP to transmit your packets, the ISP should not automatically be entitled to take control of your data. In fact, some ISP on their own volition have apparently squashed the free flow of information without even the pretense of a contract. However, there are times an ISP may legitimately manage (not read) the flow of data in response to network capacity. By the way, one acknowledged contract limit: we can't sell ourselves into slavery.

    PS: The word contract is in quotes since many of these so-called contracts, I would argue, are not real contracts since they cannot be negotiated. I also find the argument that one can simply switch to a different provider to be both simplistic and unrealistic. To me the free market solution is that ISP providers, telecommunication companies, and shippers should have a professional code of conduct that protects the "content" they are transmitting.
    • ^
    • v
    You've put contract in quotes because you don't see them as sufficiently negotiable. In law, that's called an adhesion contract, where some big player offers something of on a take it or leave it basis. If the contract terms would work an injustice (this is an open door for courts to rewrite contracts), a court can invalidate it.

    The thing wrong with this doctrine is that it encourages consumers to be supine, then run to court claming they got a raw deal. Though I'm not the strongest critic of adhesion contract doctrine by any stretch, the better policy is to hold people to the literal terms of their contracts. This requires consumers to refuse deals that are bad for them.

    Do you care enough about privacy to give the middle finger to your ISP, and to all ISPs, or use encryption for your communications to make their snooping impossible? That's when we'll know you really mean it.

    Whether or not formalized as a "code of conduct," ISPs are under pressure to adhere to the behavior you've suggested. How much pressure depends on how willing consumers are to refuse giving them money.
    • ^
    • v
    If we were to accept Alex’s position on contracts, in the ultimate extreme, this would mean that your phone provider could listen in on your conversations, UPS or Fedex could open your packages, and that even the post office, as a private corporation, could open your mail and read it. Obviously this would be an untenable situation since corporate control of the flow of information would be a major threat to free speech.

    Steve:

    Excellent point. Unfortunately, in some cases this is not a hypothetical "if" but is happening more and more often.

    http://enigmafoundry.wordpress.com/2007/08/14/w...

    excerpt:

    Amazingly, as the examples of case after case after case of ISP’s instituting content-based suppression of expression (or plainly said: Censorship) pile up, certain bloggers (mainly ‘libertarian’) continue to deny that this is talking place at all. Over at TLF James Gattuso makes an incredible assertion:
    Net neutrality regulation has often been described as a “solution without a problem.” While supporters produce hypothetical concerns like little chocolate doughnuts, real-life examples of abuse have been virtually impossible to find. [emphasis added by e_f] That probably explains the excitement in the pro-regulation camp over an incident last week involving the unlikely combination of AT&T and Pearl Jam.


    James, to find something, you do actually have to—look!
    • ^
    • v
    Jim: Thanks for your response, it provided me with additional thoughts on what I have been trying to express. It seems to me that the free market being advocated is one where the seller has all the power and if the consumer does not like the terms the only recourse of the consumer is not to buy the product. In theory, the seller upon seeing this customer dissatisfaction will then change their behavior and improve customer service.

    Unfortunately, the real world does not work this way. We live in a mass-market world. In that mass market world companies (even if bad) can collect customers on a random basis and some customers are simply dumb. The consequence is that "bad" companies do not immediately vaporize and go to free market heaven. Sprint has been dying for approximately four years and the American automobile companies for 30 years.

    As further evidence of an unfair playing field (which distorts the operation of the free market), companies are not exactly shy about "buying" favorable legislation. TechDirt has a recent article Retail Chains Ask Congress To Regulate Online Auction Sites. So when a business obtains favorable legislation this is considered a positive step in fostering business growth. But if the consumer were to obtain favorable legislation that would protect them from onerous contracts this is not surprisingly considered to be excessive regulatory control by our socialistic government. Clearly not a level playing field.

    Speaking of onerous contracts. Ed Foster has an article Teleblend's terrible terms. Ed writes "In other words, even if you got what looked like a real contract when you signed up for the service, those terms are voided by whatever they choose to post on a webpage you (as was the case with the reader) may not even know exists. And this they call an "opt-in" customer agreement?" This further illustrates the absurdity of today's contract law when a buyer is obligated to live by the terms of a contract, however the seller is not bound and can make unilateral changes to a contract without even the consent of the consumer. Clearly if the seller can make changes to a contract at-will, why not the buyer?

Trackbacks

blog comments powered by Disqus