Articles by Adam Thierer 
Senior Fellow in Technology & Innovation at the R Street Institute in Washington, DC. Formerly a senior research fellow at the Mercatus Center at George Mason University, President of the Progress & Freedom Foundation, Director of Telecommunications Studies at the Cato Institute, and a Fellow in Economic Policy at the Heritage Foundation.
Well, you got it! Here’s a essay of mine that The Daily Caller ran today discussing the ramifications of the decision.
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Internet freedom got a reprieve Tuesday when the U.S. Court of Appeals for the District of Columbia slapped down a brazen attempt by the Federal Communications Commission (FCC) to ignore the rule of law and begin imposing onerous regulations on broadband network operators. The decision,
Comcast v. FCC, deals with arcane matters of regulatory agency jurisdiction, but the stakes were profound and the ramifications for the future of the Internet will reverberate for years to come.
In a nutshell, the FCC argued it had the right to impose so-called “Net neutrality” regulations on a private broadband operator based merely on a handful of principles that the agency had previously said it would
not be enforcing as law. Net neutrality regulations would put FCC bureaucrats in the Internet’s driver’s seat and let them determine what was “just and reasonable” of private networks. Critics have rightly feared that Net neutrality sounded all too much a Fairness Doctrine for the Internet since similar language had been used in the broadcast era to justify all sorts of FCC meddling and micromanagement.
Regardless, the FCC’s original position—that its Net neutrality principles were
only principles and nothing more—made sense since even a high school civics student can tell you that only Congress can make laws. Moreover, for a brief time, even the FCC seem to realize that laws that would comprehensively regulate such an important sector of the American economy, as Net neutrality rules would, almost certainly require our elected leaders in Congress to reopen and tweak existing statutes like the Telecommunications Act of 1996. After all, Congress had never authorized wide-reaching regulation of the Net or broadband networks, and so, if the agency wanted to extend its regulatory tentacles and wrap them around the Internet it only seems reasonable they get the blessing of lawmakers before doing so. And, for a time, the FCC stuck to a “Hands Off the Net” approach.
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I got a call today from CNBC asking me to appear on a program to discuss the rising controversy surrounding GetUnvarnished.com, which CNBC called “the scariest website ever” and an “online reputation killer.” For those of you not familiar with the site, it bills itself as “an online resource for building, managing, and researching professional reputation, using community-contributed, professional reviews.” More specifically, the site says:
Unvarnished reviews help you get the inside scoop on other business professionals, providing candid assessments of coworkers, potential hires, business partners, and more. By contributing Unvarnished reviews, you can share your knowledge of other professionals, giving credit where credit is due, and valuable feedback where needed. Lastly, your own Unvarnished profile, which you may create yourself or claim one that has been created for you, helps you take control of and build your own professional reputation. Get recognition for your accomplishments and actively manage your career growth.
In essence, the site is like other online product or service review sites except in this case the product or service being reviewed is you! By letting people comment on other people’s reputation anonymously, the theory is that Unvarnished can become “a central hub for community-contributed reviews regarding an individual business professional,” according to the site.
However, as you can well imagine, the site raises all sorts of thorny questions about anonymity, free speech, privacy, personal reputation, libel, child safety, cyberbullying, intermediary liability, and so on. If you read these two
TechCrunch articles [1, 2], you’ll get a good feel for the heated debate that will follow, which I’m sure we’ll be talking about more here on this blog in the months to come. I can see this becoming the next AutoAdmit or JuicyCampus case, and raising some of the same questions that came to the fore during the “skank” blogger case last year. For now, here’s the video from the CNBC show, and down below I have included some talking points I put together before I went on the air.
http://plus.cnbc.com/rssvideosearch/action/player/id/1461740784/code/cnbcplayershare
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The decision in Comcast v. FCC is out and it’s a resounding defeat for the Federal Communications Commission and the agency’s creative interpretations of “ancillary jurisdiction.” The U.S. Court of Appeals for the District of Columbia just wasn’t buying the FCC’s claim that it had “ancillary jurisdiction” to enforce amorphous policy principles against Comcast under past case law or, more amazingly, via some deregulatory-minded passages from the Telecommunications Act of 1996. [For all the background on this case and the definitive refutation of the agency’s jurisdictional assertions, see this paper and this filing by my colleague Barbara Esbin. Barbara practically wrote the script for the Court’s decision today through her meticulous debunking of each of the agency’s creative theories of law.]
I’m just working my way through the decision for a second time and will likely have more to say about it in coming days, but I just had to reprint this one passage from the decision on pg. 23-4, in which the Court notes that the FCC is basically asking for “anything goes” authority over all networks and the Internet:
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Interesting upcoming event on April 21st at Georgetown University about “Digital Power and Its Discontents.” It’s described as: “A one-day conference exploring the ways digital technologies disrupt the balance of power between and among states, their citizens and the private sector.” Evgeny Morozov of Georgetown’s Institute for the Study of Diplomacy, which is organizing the event, was kind enough to invite me to participate on the first panel of the day. And I see that my fellow TLF blogger Jerry Brito of the Mercatus Center will be on another panel. Other panelists include: John Morris of CDT, Micah Sifry of the Personal Democracy Forum, Mark MacCarthy of Georgetown Univ., Rebecca MacKinnon, Joel Reidenberg of Fordham Law, Amb. Philip Verveer, and several others.
The event will be held on
Wednesday, April 21, 2010 from 10:30 a.m. to 4:30 p.m. at the Georgetown University Mortara Center for International Affairs. (3600 N Street, N.W.) Go to the website to RSVP. You’ll find the complete agenda down below. It sounds like a terrific event. RSVP here.
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In the latest PFF TechCast, I discuss the issues considered in the second essay in our ongoing series, “The Wrong Way to Reinvent Media.” In this 6-minute podcast, PFF’s press director Mike Wendy chats with me about proposals to impose taxes on broadcast spectrum licenses to funnel money to public media or “public interest” content. In my paper and this podcast, I make the case again socially engineering media choices and outcomes through the tax code.
MP3 file: PFF TechCast #2 – Saving the Media Through Broadcast Spectrum Taxes (4/5/2010)
As I mentioned before, I’ve been actively seeking a replacement in my role as President of The Progress & Freedom Foundation. I’ve already grown tired of managerial duties, fundraising responsibilities, and so on. More importantly, it is slowly but surely destroying my ability to be a full-time policy wonk and focus all my energies on making the case for free minds, free markets, and free speech. I’m quite ready and willing to hand over the keys to someone else so I can spend all my time fighting the good fight. I just need to find the right person.
So, if you know of someone who would make a great leader, has strong free-market credentials, and extensive experience in the field of high-tech policy and media/communications law, please let me know. They can contact me at: athierer[at]pff.org or call PFF at 202-289-8928
As mentioned last week, in a new series of essays, PFF scholars will be examining proposals that would have the government play a greater role in sustaining struggling media enterprises, “saving journalism,” or promoting more “public interest” content. With many traditional media operators struggling, and questions being raised about how journalism in particular will be supported in the future, Washington policymakers are currently considering what role government can and should play in helping media providers reinvent themselves in the face of tumultuous technological change wrought by the Digital Revolution. We will be releasing 6 or 7 essays on this topic leading up to our big filing in the FCC’s “Future of Media” proceeding (deadline is May 7th). And here’s a podcast Berin Szoka and I did providing an overview of the series.
In the first installment of the series, Berin and I critiqued an old idea that’s suddenly gained new currency: taxing media devices or distribution systems to fund media content. In the second installment, “The Wrong Way to Reinvent Media, Part 2: Broadcast Spectrum Taxes to Subsidize Public Media,” I discuss proposals to impose a tax on broadcast spectrum licenses to funnel money to public media projects or other “public interest” content or objectives. Such a tax would be fundamentally unfair to broadcasters, who are struggling for their very survival in the midst of unprecedented marketplace turmoil. Moreover, such a tax is unnecessary in light of the many other sources of “public interest” programming available today. Finally, even if the government creates or subsidizes wonderful, civic- and culturally-enriching content, there’s no way to force people to consume it. Nor should government force such media choices upon the public. There’s no good reason for government to be socially-engineering media choices through taxes.
I’ve attached the entire essay down below.
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PFF recently started a new “TechCast” podcast series and the topic for one of our first episodes was about the new series of essays that we have coming out about “The Wrong Way to Reinvent Media.” In this series, we’re examining proposals that would have the government play a greater role in sustaining struggling media enterprises, “saving journalism,” or promoting more “public interest” content. We’re concerned about the prospect of central planning for media or a “public option” for the press.
Berin Szoka and I recently sat down with PFF’s press director Mike Wendy to chat about our concerns in this brief 5-minute podast:
[display_podcast]
MP3 file: PFF TechCast #1 – Overview of Wrong Way to Reinvent Media Series (3-28-2010)
John Schwartz of The New York Times called me two weeks ago and asked for comment about a potential controversy involving mobile phone provider Sprint and the charitable organization Catholic Relief Services (CRS). The facts were pretty sketchy at the time, but Schwartz told me that CRS was accusing Sprint of blocking Mobile Commons, the company that connects CRS and 100 other nonprofit organizations with text messaging networks, from getting a short code to create a charitable mobile donation program in the wake of the Haiti earthquake. Here’s the basic background that appeared in Schwartz’s March 24th article, “Catholic Charity and Sprint Tangle Over Texting“:
[CRS] wanted to try a twist on the technology: when people sent a text message to donate, they got a reply offering to connect them via phone to the charity’s call center. The group hoped that the calls could build a stronger bond with donors, and garner larger contributions as well. But just three days into the effort after the Jan. 12 earthquake, the charity got word that Sprint Nextel was demanding that the “text-to-call” effort be shut down. The charity had 40 days to abandon the feature or lose access to millions of Sprint customers. Sprint’s original motivations are murky; it said that an intermediary company had failed to properly fill out a form to verify that it was dealing with a legitimate charity.
It didn’t take long for the regulatory activists at Free Press and Public Knowledge to pounce and claim the Federal Communications Commission (FCC) had to intervene to save our souls from the nefarious scum at Sprint. After all, you do know that Sprint hates Haitians, right? The company obviously wanted to see Haitians starve and not receive any support from charitable organizations.
No, seriously, come on! How asinine is this storyline?! Continue reading →
Are you a fellow Twitter addict who also monitors Internet policy and cyberlaw developments closely? If so, have you noticed that there really isn’t a good Twitter hashtag for this broad and growing issue set? The #FCC and #FTC hashtags have become catch-alls for a great deal of activity in this area, but they don’t really make sense for other Internet policy issues that those agencies don’t cover. For example, Sec. 230-related issues wouldn’t really fit in either of those. Neither would something about Internet governance, e-commerce taxation, or search engine policy concerns. And just using #Internet doesn’t work because it’s far too broad. #Cyberlaw is probably the best hashtag I’ve found to cover this arena, but it doesn’t get much traction and may also be too narrow since some users might not consider it applicable to digital economics.
So, I’d like to propose
#NetPolicy as a catch-all Twitter hastag for Internet policy matters. It would be great way to keep track of breaking news, new papers, and upcoming events related to the Internet policy issues.
Anyone have thoughts, or a better alternative??
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.