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.
Continue reading →
by Berin Szoka & Adam Thierer, Progress Snapshot 5.11 (PDF)
Ten years ago, Nobel Prize-winning economist Milton Friedman lamented the “Business Community’s Suicidal Impulse:” the persistent propensity to persecute one’s competitors through regulation or the threat thereof. Friedman asked: “Is it really in the self-interest of Silicon Valley to set the government on Microsoft?” After yesterday’s FCC vote’s to open a formal “Net Neutrality” rule-making, we must ask whether the high-tech industry—or consumers—will benefit from inviting government regulation of the Internet under the mantra of “neutrality.”
The hatred directed at Microsoft in the 1990s has more recently been focused on the industry that has brought broadband to Americans’ homes (Internet Service Providers) and the company that has done more than any other to make the web useful (Google). Both have been attacked for exercising supposed “gatekeeper” control over the Internet in one fashion or another. They are now turning their guns on each other—the first strikes in what threatens to become an all-out, thermonuclear war in the tech industry over increasingly broad neutrality mandates. Unless we find a way to achieve “Digital Détente,” the consequences of this increasing regulatory brinkmanship will be “mutually assured destruction” (MAD) for industry and consumers.
New Fronts in the Neutrality Wars
The FCC’s proposed rules would apply to all broadband providers, including wireless, but not to Google or many other players operating in other layers of the Net who favor such broadband-specific rules. With this rulemaking looming, AT&T came after Google with letters to the FCC in late September and then another last week accusing the company of violating neutrality principles in their business practices and arguing that any neutrality rules that apply to ISPs should apply equally to Google’s panoply of popular services. In particular, AT&T accused Google of “search engine bias,” suggesting that only government-enforced neutrality mandates could protect consumers from Google’s supposed “monopolist” control.
The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. Continue reading →
According to Ina Fried of CNet News, Microsoft plans to remove its Internet Explorer web browser from the new versions of Windows 7 when it ships it in Europe later this year. [Additional coverage at ZDNet.] MS is apparently doing so to assuage the concerns of EU antitrust officials, who have been obsessed with the company for the past decade. [Update: Here is MS official announcement.]
Apparently, European officials think their citizens are too stupid to find an alternative browser. I mean, seriously, how hard is it? Does the competition lack name recognition such that consumers can’t find them? Hmmm… Google and Apple seem to be pretty well known brands, and their browsers (Chrome & Safari) are pretty easy to find. And then there’s Mozilla’s Firefox browser (my PC favorite) and Opera (my mobile phone favorite), which are outstanding browsers. [Incidentally, Firefox already has 31% share of the European market.]
OK, OK, the regulators might say, but these competitors are just too expensive! Uh, no, wait… every one of them is free. So, strike that theory.
Well, the regulators need another theory then. How about illegal tying of products and services! You know, there’s only certain sites or services you can use with IE, right? Nope, that theory doesn’t work either. And does anyone believe that MS could really tie OS functionality to the use of IE? How long would the world tolerate Outlook e-mails or Word documents that only allowed linking to URLs via IE?? Come on.
OK, any other theories left? Not that I can think of. Which brings us back to the only theory the Euro-crats have left: people are sheep. They’ll take whatever MS bundles into the OS free, you see, and they will use it more than they use competing products. Thus, we regulators have to save them from their own stupidity! The masses just don’t know what’s good for them! These free, integrated services are harming them! And, therefore, the only remaining solution is to kill innovation by crippling functionality and removing the free offering. That’s pro-consumer! … or so say the European antitrust bureaucrats.
Meanwhile, back in the real world, a whole lotta innovation continues to take place. But shhhh.. don’t tell the Euro-crats. They need a company to pick on. Welcome to the Theater of the Techno-Absurd.
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Posted in: Broadband & Neutrality Regulation, First Amendment, Free Speech & Online Child Safety 
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.
