As I noted here a few days ago, the Federal Communications Commission held a workshop on Tuesday about “Speech, Democratic Engagement, and the Open Internet.”  It was a shockingly one-sided affair with the deck being stacked almost entirely in favor of advocates of Net neutrality regulation. Worse yet, those advocates shamelessly made up spooky stories about a future of “private censorship” that could only be remedied by using the First Amendment as a club to beat private players into submission. The token opposition at this Chicken Little circus was Robert Corn-Revere, a Partner at the law firm of Davis Wright Tremaine LLP in Washington, D.C.   Bob set the record straight–both in terms of baseless accusations that were flying that day as well as the revisionist histories of the First Amendment that were being put forward. I’m happy to report that Bob allowed PFF to reprint his remarks as a new white paper entitled, “The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For.”

In his essay, Corn-Revere discusses the relationship between the First Amendment and regulatory policy, particularly the treatment of new communications technologies, and he warns that government regulation of broadband networks could “provide the vehicle for advancing new First Amendment theories for media regulation” and online speech and expression more generally.  “It should not be forgotten,” he argues, “that the federal government’s initial impulse was to censor the Internet and to subject it to a far lower level of First Amendment protection. It pursued this agenda for more than a decade but was blocked by a series of First Amendment rulings.”  The Communications Decency Act and the Child Online Protection Act are just two notable examples. Luckily, the courts determined that “the open Internet would be at great risk if the government is allowed to exercise such power,” he notes, and they struck down such laws.

But we must be vigilant in defending our free speech rights, Corn-Revere warns. He notes that, “the constitutional ramifications of the network neutrality debate extend far beyond the question of whether the FCC should or should not adopt a given set of rules. On a doctrinal level the question is whether technological convergence should also lead to regulatory convergence, where the least common denominator of First Amendment protection becomes the governing rule.”

“The First Amendment, the Internet & Net Neutrality: Be Careful What You Wish For” is available on the PFF website and can also be viewed down below in a Scribd document reader. I want to also recommend that everyone take a look at the brief remarks that FCC Commissioner Robert McDowell delivered at the opening of that FCC event that Corn-Revere spoke at. “Efforts to advance ‘First Amendment values’ through additional government regulation risks turning over two hundred years of First Amendment jurisprudence on its head,” McDowell rightly argued. And that’s also consistent with the outstanding address delivered last week by Kyle McSlarrow, President & CEO of the National Cable & Telecommunications Association, on the same issue, in which he correctly noted that, “the First Amendment is framed as a shield for citizens, not a sword for government.” “By its plain terms and history, the First Amendment is a limitation on government power, not an empowerment of government,” McSlarrow said.

Thank God a few people in this town are still taking a stand for the real First Amendment.

Robert Corn-Revere Remarks at FCC Workshop on Speech and Democracy http://d1.scribdassets.com/ScribdViewer.swf?document_id=24208240&access_key=key-2h2o9rho7g9qr414utqi&page=1&version=1&viewMode=list

The Internet is massive. That’s the ‘no-duh’ statement of the year, right?  But seriously, the sheer volume of transactions (both economic and non-economic) is simply staggering.  Consider a few factoids to give you a flavor of just how much is going on out there:

• In 2006, Internet users in the United States viewed an average of 120.5 Web pages each day.
• There are over 1.4 million new blog posts every day.
• Social networking giant Facebook reports that each month, its over 300 million users upload more than 2 billion photos, 14 million videos, and create over 3 million events. More than 2 billion pieces of content (web links, news stories, blog posts, notes, photos, etc.) are shared each week. There are also roughly 45 million active user groups on the site.
• YouTube reports that 20 hours of video are uploaded to the site every minute.
• Amazon reported that on December 15, 2008, 6.3 million items were ordered worldwide, a rate of 72.9 items per second.
• Every six weeks, there are 10 million edits made to Wikipedia.

Now, let’s think about how some of our lawmakers and media personalities talk about the Internet.  If we were to judge the Internet based upon the daily headlines in various media outlets or from the titles of various Congressional or regulatory agency hearings, then we’d be led to believe that the Internet is a scary, dangerous place. That ‘s especially the case when it comes to concerns about online privacy and child safety. Everywhere you turn there’s a bogeyman story about the supposed dangers of cyberspace.

But let’s go back to the numbers. While I certainly understand the concerns many folks have about their personal privacy or their child’s safety online, the fact is the vast majority of online transactions that take place online each and every second of the day are of an entirely harmless, even socially beneficial nature.  I refer to this disconnect as the “problem of proportionality” in debates about online safety and privacy. People are not just making mountains out of molehills, in many cases they are just making the molehills up or blowing them massively out of proportion.

Go back to those Facebook numbers, for example. 300 million users uploading 2 billion pieces of content each week, plus 45 million user groups.  Now, how many “incidents” do you hear about in the course of an entire year involving privacy and child safety on Facebook? A couple? A dozen?  I doubt it’s that many, but for the sake of argument, let’s be preposterous and say the number of incidents is 10,000.  Doing some quick math: 10,000 “incidents” divided by 2 billion pieces of content shared each week = 0.001%   In other words, there would need to be hundreds of thousands of privacy or child safety “incidents” taking place on Facebook each week before one could legitimately claim the trend was statistically significant in proportion to the total volume of transactions.

Of course, there’s no way to be scientific about this since I can’t crunch the numbers to get an exact calculation for Facebook or the entire Internet since it’s hard to even define or collect info about online “incidents.” And this is not to say there are never any incidents online where some harm might come to an individual or a child.  Defining “harm” can be contentious, however, especially when it comes to what I regard as the conjectural theories about advertising or provocative media content “harming” us or our kids.

Of course, others could claim that the sheer volume of information that we put online about ourselves is problematic for a variety of other reasons. The best argument about potential harm coming of all this information being online is that the sheer volume of data sharing and collection opens up the door to identify theft, or that some government agencies could get their hands on it and use it to do nasty stuff to us.  That first problem can be a legitimate one, and deserves more attention and greater consumer education. But that latter problem should be addressed by putting more constraints on our government(s), not by imposing more regulations on the Internet. Government powers should be tightly limited when it comes to monitoring the habits of websurfers or collecting information about them.

Nonetheless, it is my contention that an infinitesimal percentage of all daily online transactions and interactions involve serious privacy violations or harm to children.  Until they can prove otherwise, we need to demand that our policymakers and folks in the press put these issues into some perspective before they jump to conclusion about online life.  Enough of the fear-mongering and techno-panics!