Forbes.com has just published an editorial that Berin Szoka and I penned about yesterday’s net neutrality announcement from the FCC.

The Day Internet Freedom Died

by Adam Thierer & Berin Szoka

There was a time, not so long ago, when the term “Internet Freedom” actually meant what it implied: a cyberspace free from over-zealous legislators and bureaucrats. For a few brief, beautiful moments in the Internet’s history (from the mid-90s to the early 2000s), a majority of Netizens and cyber-policy pundits alike all rallied around the flag of “Hands Off the Net!” From censorship efforts, encryption controls, online taxes, privacy mandates and infrastructure regulations, there was a general consensus as to how much authority government should have over cyber-life and our cyber-liberties. Simply put, there was a “presumption of liberty” in all cyber-matters.

Those days are now gone; the presumption of online liberty is giving way to a presumption of regulation. A massive assault on real Internet freedom has been gathering steam for years and has finally come to a head. Ironically, victory for those who carry the banner of “Internet Freedom” would mean nothing less than the death of that freedom.

We refer to the gradual but certain movement to have the federal government impose “neutrality” regulation for all Internet actors and activities—and in particular, to yesterday’s announcement by Federal Communications Commission (FCC) Chairman Julius Genachowski that new rules will be floated shortly. “But wait,” you say, “You’re mixing things up! All that’s being talked about right now is the application of ‘simple net neutrality,’ regulations for the infrastructure layer of the net.” You might even claim regulations are not really regulation but pro-freedom principles to keep the net “free and open.”

Such thinking is terribly short-sighted. Here is the reality: Because of the steps being taken in Washington right now, real Internet Freedom—for all Internet operators and consumers, and for economic and speech rights alike—is about to start dying a death by a thousand regulatory cuts. Policymakers and activists groups are ramping up the FCC’s regulatory machine for a massive assault on cyber-liberty. This assault rests on the supposed superiority of common carriage regulation and “public interest” mandates over not just free markets and property rights, but over general individual liberties and freedom of speech in particular. Stated differently, cyber-collectivism is back in vogue—and it’s coming very soon to a computer near you!

“Net Neutrality” proponents insist, however, that only regulation can save us from nefarious corporate schemers out to quash our rights and destroy all innovation. Over the last decade, a cabal of activist-minded cyber-law professors have successfully turned the world of Internet policy upside down by persuading an entire generation of law students, policymakers, and a number of large Internet companies that “Internet Freedom” means the very opposite of what it used to mean. Borrowing tactics that would have made Orwell proud, they have convinced many in the public and the policymaking community that the old Internet Freedom is slavery, in that we are all just tools of Corporate Big Brother. Thus, they offer us a new Internet Freedom: Neutrality über alles! Their freedom, as in Orwell’s Oceania, is not a freedom from the State, but a gleaming utopia that can only be created by the State.

We see the triumph of this thinking with Chairman Genachowski’s proclamation that, “This is not about government regulation of the Internet. It’s about fair rules of the road for companies that control access to the Internet. We will do as much as we need to do, and no more, to ensure that the Internet remains an unfettered platform for competition, creativity and entrepreneurial activity.”

Yet, no matter how vociferously the proponents of FCC-enforced “neutrality” insist that it is not regulation they seek, the reality is that the steps they counsel would put the FCC in the driver’s seat for a host of Internet economic and social issues. Internet companies and technologies will come to be regulated like crusty old “common carriers” and broadcast stations that must serve some amorphous “public interest.”

But as the FCC’s long history of meddling in media and communications markets makes clear, micro-management of dynamic markets is a recipe for economic stagnation, strangled innovation, and speech controls. And the path to regulation does not end with infrastructure providers. The specter of neutrality haunts not just today’s Internet service providers but also all high-tech innovators, like Google, Apple, Facebook, Microsoft and their descendents. Although the FCC’s original mandate was mostly to deal with spectrum “interference”—something that could have been, and actually was being, dealt with using property rights—the agency quickly expanded its mission: Broadcast regulation metastasized into government control over speech, innovation, campaign advertising and a “fairness doctrine” for news coverage. Likewise, Net Neutrality mandates will give rise to neutrality mandates for other areas.

The slope is slippery and we’re already heading down it: The push for “Wireless Neutrality” is already well under way and the FCC is currently investigating Apple’s rejection of the Google Voice application for the iPhone. Thus, “Net Neutrality” leads to “Device Neutrality” and “Application Neutrality,” but the same rationale would apply equally to any circumstance in which access to a communications platform is supposedly limited to a few “gatekeepers.” Some academics have already proposed a “Federal Search Commission” to deal with accusations of “search bias.” At the end of the day, we’ll need a full-blown Federal Information Commission with a Search Bureau, a Cloud Computing Division and several other ministries to micro-manage the many flavors of neutrality regulation.

The path back toward real Internet freedom lies in restoring the presumption of liberty enshrined in the First Amendment, which is not a sword with which the government can ensure fairness, diversity or openness, but a shield against government meddling in media, communications and online markets.

President-elect Barack Obama will soon be naming Cass Sunstein, an old friend of his from their University of Chicago Law School days together, the new head the White House Office of Information and Regulatory Affairs (OIRA). OIRA oversees regulation throughout the U.S. government. Basically, Sunstein’s position is the equivalent of the federal regulatory czar.

Sunstein certainly possess excellent qualifications for the job. During his time at the University of Chicago and Harvard Law School, Sunstein has established himself as a leading liberal thinker in the field of law and economics. And, as I have joked in writing about him before, he is so insanely prolific that it seems every time I finish reading one of his new books a new title by him lands on my desk. I am quite convinced that both he and Richard Posner are actually cyborgs. I just don’t understand how two humans can compose words so rapidly!

Anyway, Professor Sunstein’s new position as head of OIRA gives him the ability influence federal regulatory decisions in both a procedural and substantive way. In terms of substance, it gives him an important platform to subtly “nudge” the regulatory philosophy and direction of the Obama Administration on many matters, including Internet policy. So, what has Professor Sunstein had to say about Internet policy in his recent work? Sunstein has developed his thinking about these issues primarily in his two recent books: Republic.com (2000) and Infotopia: How Many Minds Produce Knowledge (2006). But he’s also had a few relevant things to say about Internet issues in his recent book with Richard Thaler, Nudge: Improving Decisions About Health, Wealth, and Happiness (2008).

There are 3 Internet policy-related things from his work that I’d like to focus on here because I find them all quite troubling.

(1) Is the Net Creating Anti-Democratic Man?

The first is Sunstein’s general outlook about the Internet and what it is doing to society. In Republic.com , Sunstein argued that the Internet is destroying opportunities for a mingling of the masses and shared social experiences. The hyper-customization that specialized websites and online filtering technologies (blogs, portals, listservs, political websites, etc.) offer Americans is allowing citizens to create the equivalent of a highly personalized news retrieval service that Sunstein contemptuously refers to as “The Daily Me.”

Actually, the phrase “The Daily Me” was coined by Nicholas Negroponte in his brilliant 1995 book Being Digital to describe what he argued would be a liberating break from traditional, force-fed media. But what irks Sunstein about “The Daily Me” is not the amazing new array of choices that the Internet offers Americans, it’s that the Internet and all these new technologies allow citizens to filter information and tailor their viewing or listening choices to their own needs or desires. While Negroponte welcomed that filtering and specialization function, Sunstein seems to live in fear of it, believing that it creates extreme social isolation and alienation. He argues that unrestrained individual choice is dangerous and must be checked or countered in the interests of “citizenship” and “democracy.” In his own words: “A system of limitless individual choices, with respect to communications, is not necessarily in the interest of citizenship and self-government. Democratic efforts to reduce the resulting problems ought not be rejected in freedom’s name.”  In other words, as I noted in my review of his book in Regulation magazine back in 2000, Sunstein is essentially saying that the Internet is breeding a dangerous new creature: Anti-Democratic Man. And government should not hesitate to act to counter it.

Sunstein’s argument is highly elitist. To Sunstein, the Internet is apparently guilty of the unspeakable crime of offering citizens and consumers too much of exactly what they want! But, according to his logic, the masses just don’t know what’s good for them so they must be aggressively encouraged (and potentially forced) to listen to things that others — namely, Sunstein — want them to hear. As Thomas Krattenmaker and Lucas Powe, authors of Regulating Broadcast Programming, argue: “Sunstein has dressed an older argument in more modern garb, but at bottom it is the persistent belief of some elites that if only they could gain power, they would use it to impose their views of the good on those who are less enlightened.” It’s what my favorite political scientist Thomas Sowell refers to as “The Vision of the Anointed.”

And a look at the world around us shows that Sunstein’s view that the Net is leading to close-mindedness, homogenization, and the death of deliberative democracy is generally overblown. (Although Lee Siegel and Andrew Keen would agree with him). Indeed, I think quite the opposite is the case. While it’s true that citizens do face an overwhelming number of media and informational choices today, that isn’t really such a lamentable development. The very fact there are so many distinct media and informational options available to citizens is better for a healthy democracy than a limited range of media options, even if some people flock to sites they find more agreeable.

Finally, it is simply impossible for me to believe the argument that citizens are somehow exposed to fewer viewpoints today than in the past. Such a suggestion is simply revisionist history. Never before have we humans been exposed to such a cornucopia of informational inputs of all flavors.

(2) A Fairness Doctrine for the Internet

Sunstein’s views about the Internet and what it is doing to society are troubling enough. Far more problematic, however, is what Sunstein has suggested we should do to deal with this supposed problem. After Sunstein worked himself up to a boil about all this in Republic.com, he tossed out what I believe is the single most dangerous public policy idea for the Internet suggested in the past 10 years: mandatory “electronic sidewalks” for cyberspace.

Sunstein called for popular or partisan websites to be forced to carry links to opposing viewpoints. Think of it as a combination of must carry mandates and the Fairness Doctrine for the Internet. Thus, the National Rifle Association (NRA) would be forced to run links or editorials by anti-gun groups, and abortion rights groups would be forced to contend with links and editorials from pro-life organizations. Apparently in Sunstein’s world, people have many rights, but one of them, it seems, is not the right to be left alone or seek out the opinions one desires.

Problems abound with such a philosophical paradigm. It is impossible to know how or where to draw regulatory lines under such a regime. For example, under Sunstein’s model, how many links to opposing viewpoints should citizens be subjected to on the Net before he believes they are fully assimilated into democratic society? If the NRA only offered one or two links to anti-gun groups, would that be enough? Moreover, it remains unclear who in government is really in the a position to dictate or referee all of this and how they will go about enforcing it. Whether any of this will pass constitutional muster is another question not explored by Sunstein.

Importantly, in his 2006 book Infotopia, Sunstein seemed to pull back from these views and proposals somewhat, although he still bemoaned the supposed dangers of “The Daily Me.”  But in this November 2007 interview with Salon, Sunstein seemed to completely abandon his old proposal:

I have thought over the years of whether it makes sense for the government to have a regulatory role [for the Internet]. But the Internet is too difficult to regulate in a way that would respond to these concerns. The first book [“Republic.com”] had suggestions that government should consider fairness-doctrine-type mandates on Web sites. It suggested that it’s reasonable for government to think about creating the equivalent of linking obligations and pop-ups, so that you’d be on one site — say, a conservative site — and there’d be a pop-up from a liberal site. I now the believe that the government should not consider that — that it’s a stupid and almost certainly an unconstitutional suggestion.

Salon then asked him: “What changed your thinking?” Sunstein responded:

Hearing counter-arguments and seeing the nature of the Internet as it unfolded over time. “Republic.com” made a mistake of applying to the Internet some ideas that were developed in a world of three or four television networks. … But the kinds of regulation that would respond to my concerns [about deliberative democracy], they’re not really feasible and they probably wouldn’t help. Most problems are best solved privately, not through government. There’s a problem of discourtesy in the world, which is best handled through social norms, which are indispensable. But you wouldn’t want the government to be mandating courtesy.

Thus, I have to give Prof. Sunstein credit for recognizing the complexities and dangers associated with his old ideas.

(3) A Cooling Off Period Before Posting on Blogs

In Nudge, a book about how small proposals or policies can have major social influences, Sunstein and his co-author Richard Thaler describe as their “favorite proposal,” a so-called “Civility Check” for online speech and interactions. Here’s what they say:

The modern world suffers from insufficient civility. Every hour of every day, people send angry emails they soon regret, cursing people they barely know (or even worse, their friends and loved ones). A few of us have learned a simple rule: don’t send an angry email in the heat of the moment. File it, and wait a day before you send it. (In fact, the next day you may have calmed down so much that you forget even to look at it. So much the better.) But many people either haven’t learned the rule or don’t always follow it. Technology could easily help. In fact, we have no doubt that technologically savvy types could design a helpful program by next month. We propose a Civility Check that can accurately tell whether the email you’re about to send is angry and caution you, “warning: this appears to be an uncivil email. do you really and trulywant to send it?” (Software already exists to detect foul language. What we are proposing is more subtle, because it is easy to send a really awful email message that does not contain any four-letter words.) A stronger version, which people could choose or which might be the default, would say, “warning: this appears to be an uncivil email. this will not be sent unless you ask to resend in twenty-fourhours.” With the stronger version, you might be able to bypass the delay with some work (by inputting, say, your Social Security number and your grandfather’s birth date, or maybe by solving some irritating math problem!).

When I first responded to Sunstein and Thaler’s “Civility Check” notion, I went a little hard on them calling that idea “absurd and horrendously elitist.” What I should have made clear is that there is a difference between suggesting this sort of thing as an industry “best practice” as opposed to mandating it by force of law.

Indeed, in October of last year, Google launched a new Gmail feature called “Mail Goggles” that, according to the launch message on Google’s Gmail Blog, will help users “stop sending mail you (will) later regret.” The feature — perhaps better labeled a “Drunk Check” — “will check that you’re really sure you want to send that late night Friday email” by asking you to “solve a few simple math problems after you click send to verify you’re in the right state of mind.” It’s not identical to what Sunstein and Thaler have in mind, but it’s close. And I’m fine with Google adding such a feature to their Gmail service, especially since you don’t have to use it if you don’t want to.

Sunstein and Thaler aren’t really clear about how far they would go in forcing their Civility Check on Internet operators, however. For example, would they alter Section 230 immunity standards to hold the threat of liability over the necks of website operators who refused to play ball? They just don’t say. But with rising concerns about online cyberbullying, harassment, and defamation, the really interesting question going forward becomes just how far the law should go to encourage or demand that site operators better police their sites for poor “Netiquette.”

The danger here is that, if the liability equation was to tip in the other direction, it would have a profoundly chilling effect on online free speech and expression. While Sunstein and Thaler obviously hope that chilling effect associated with such a Civility Check would only be freezing caustic, offensive, or potentially libelous forms of speech, much more speech would likely be affected.

Conclusion

Will Sunstein continue to push any of these views in his new position as Obama’s regulatory czar at OIRA? If so, how much impact will Sunstein’s views have on others in the Obama Administration, especially at the FCC? Or, have his views changed enough that we really shouldn’t worry?

Who knows. It may be that Sunstein will be too busy trying to mediate fights between agencies and other “czars” in the Administration — of which there seems to be no shortage these days! If, however, Sunstein’s views on the supposed dangers of the Internet and his proposals about how to address them do come to hold sway with others in the Obama Administration, we may be looking at even more insidious Internet regulation than I expected from this new crew. Sunstein’s thinking and proposals would have a profound impact on online freedom and the First Amendment rights of all online sites and speakers.

Great post over on the Tor blog about how “anonymity on the Internet is not going away.” This is a subject I care about deeply. Here, for example, is an essay I wrote about mandatory age verification and the threat it poses to online anonymity.  I love this paragraph from the Tor essay, and agree with it wholeheartedly:

Anonymity is a defense against the tyranny of the majority. There are many, many valid uses of anonymity tools, such as Tor. The belief that anonymous tools exist only for the edges of societies is narrow-minded. The tools exist and are used by all. Much like the Internet, the tools can be used for good or bad. The negative uses of such tools typically generate huge headlines, but not the positive uses. Raising the profile of the positive uses of anonymity tools, such as Tor, is one of our challenges.

Amen brother.