There are few things I find more annoying in the Net neutrality wars than the silly assertion by groups like Free Press and other regulatory radicals that “Net neutrality is the Internet’s First Amendment.” It’s utter rubbish as I have documented here many times before. But now Sen. Al Franken is running around sputtering such nonsense, as he did in this recent CNN.com editorial, claiming that “Net neutrality is foremost free speech issue of our time.” The folks at CNN invited me to response and below you will find the piece PFF press director Mike Wendy and I submitted.
“Big Government the Real Threat to Internet“
by Adam Thierer & Mike Wendy
In his recent CNN.com opinion piece, “Net neutrality is foremost free speech issue of our time,” Sen. Al Franken claims that “our free speech rights are under assault — not from the government but from corporations seeking to control the flow of information in America.”
He alludes to potential corporate blocking of online products and speech and says, “If that scares you as much as it scares me, then you need to care about net neutrality.”
Chicken Little, call your office!
Such sky-is-falling scare tactics are all too common in the heated debate over net neutrality regulation, but actual evidence of such nefarious corporate scheming is nowhere to be found. Perhaps that’s why Franken resorts to such tall tales.
Moreover, his reading of the First Amendment is at odds with the one most of us learned about in civics class (“Congress shall make no law…”). His would empower regulators by converting the First Amendment from a shield against government action into a sword that bureaucrats could wield against private industry. Continue reading →
At ten A.M. Pacific this morning, CNET News.com asked if I could write an article unraveling the legal implications of a rumored deal between Google and Verizon on net neutrality. I didn’t see how I could analyze a deal whose terms (and indeed, whose existence) are unknown, but I thought it was a good opportunity to make note of several positive developments in the net neutrality war this summer.
Just as I was finishing the piece a few hours later, another shocker came when the FCC announced it was concluding talks it had been holding since June with the major net neutrality stakeholders. It’s possible the leaked story about Google and Verizon, and the feverish response to it, whipped up by the straggling remnants of a coalition aimed at getting an extreme version of net neutrality into U.S. law by any means necessary, soured the agency on what appeared to be productive negotiations. Or maybe they’ve just gone as far as they can for now. Continue reading →
The Senate Commerce Committee will hold yet another hearing today (7/27/10) at 2:30pm Eastern with two panels:
- Witness Panel 1
- FTC Chairman Jon Leibowitz
- FCC Chairman Julius Genachowski
- Witness Panel 2
- Guy “Bud” Tribble, Apple’s VP for Software Technology
- Bret Taylor, Facebook CTO
- Alma Whitten, Google’s Privacy Engineering Lead
- Jim Harper, Cato Institute
- Dorothy Atwood, AT&T’s Senior Vice President, Public Policy & Chief Privacy Officer
- Prof. Joe Turow, University of Pennsylvania
Join me to watch the livecast. I’ll be livetweeting on the #Privacy hashtag.
I summed up most of my thoughts on the online privacy issue in my written testimony to the FTC’s privacy roundtable last fall. Also check out my paper Privacy Polls v. Real-World Trade-Offs, which explains why Prof. Turow’s polls can’t really show us what choices consumers would make if actually presented with the trade-off between locking down on the use of their data and the content and services supported by advertising that relies on that data for its value.
The always-excellent Wall Street Journal “Information Age” columnist L. Gordon Crovitz has another editorial worth reading today, which builds on the Second Circuit’s recent decision to reverse FCC content regulation for broadcasting. In “The Technology of Decency,” Crovitz explains “parents don’t need the FCC to protect their children.” “Technology makes it easier to block seven or any number of dirty words,” he notes. “Taking the FCC out of regulating indecency might just lead to more decency by refocusing responsibility where it belongs: on broadcasters and parents.”
That’s a point I’ve hammered on her in the past and in all my work on parental empowerment solutions, including my book, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” Indeed, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what is acceptable in their homes and in the lives of their children. And, luckily, poll after poll shows that parents are stepping up to the plate and taking on that responsibility (contrary to what some policymakers in Washington imply).
Moreover, legally speaking, Crovitz shows why the old rationales for regulating broadcasting differently no longer work. “No medium is likely ever to be as pervasive as broadcasting once was,” he notes. He goes on to note that: Continue reading →
The White House and the Federal Communications Commission have painted themselves into a very tight and very dangerous corner on Net Neutrality. To date, a bi-partisan majority of Congress, labor leaders, consumer groups and, increasingly, some of the initial advocates of open Internet rules are all shouting that the agency has gone off the rails in its increasingly Ahab-like pursuit of an obscure and academic policy objective.
Now comes further evidence, none of it surprising, that all this effort has been a fool’s errand from the start. Jacqui Cheng of
Ars Technica is reporting today on a new study from Australia’s University of Ballarat that suggests only .3% of file sharing using the BitTorrent protocol is something other than the unauthorized distribution of copyrighted works. Which is to say that 99.7% of the traffic they sampled is illegal. The Australian study, as Cheng notes, supports similar conclusions of a Princeton University study published earlier this year
Continue reading →
Over at MediaFreedom.org, a new site devoted to fighting the fanaticism of radical anti-media freedom groups like Free Press and other “media reformistas,” I’ve started rolling out a 5-part series of essays about “The Battle for Media Freedom.” In Part 1 of the series, I defined what real media freedom is all about, and in Part 2 I discussed the rising “cyber-collectivist” threat to media freedom. In my latest installment, I offer an analytical framework that better explains the major differences between the antagonists in the battle over media freedom.
Understanding the Origins of Political Struggles
In his many enlightening books, Thomas Sowell, a great economist and an even better political scientist, often warns of the triumph of good intentions over good economics. It’s a theme that F.A. Hayek and Milton Friedman both developed extensively before him. But Sowell has taken this analysis to an entirely differently level in books like A Conflict of Visions: Ideological Origins of Political Struggles, and
The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy
. Sowell teaches us that no matter how noble one’s intentions might be, it does not mean that those ideas will translate into sound public policy. Nonetheless, since “the anointed” believe their own intentions are pure and their methods are sound, they see nothing wrong with substituting their will for the will of millions of individuals interacting spontaneously and voluntarily in the marketplace. The result is an expansion of the scope of public decision-making and a contraction of the scope of private, voluntary action. As a result, mandates replace markets, and freedom gives way central planning.
Sowell developed two useful paradigms to help us better understand “the origins of political struggles.” He refers to the “constrained” versus “unconstrained” vision and separates these two camps according to how they view the nature of man, society, economy, and politics:
| “Constrained Vision” |
“Unconstrained Vision” |
| Man is inherently constrained; highly fallible and imperfect |
Man is inherently unconstrained; just a matter of trying hard enough; man & society are perfectible |
| Social and economic order develops in bottom-up, spontaneous fashion. Top down planning is hard because planners aren’t omnipotent. |
Order derives from smart planning, often from top-down. Elites can be trusted to make smart social & economic interventions. |
| Trade-offs & incentives matter most; wary of unintended consequences |
Solutions & intentions matter most; less concern about costs or consequences of action |
| Opportunities count more than end results; procedural fairness is key; Liberty trumps |
Outcomes matter most; distributive or “patterned” justice is key; Equality trumps liberty |
| Prudence and patience are virtues. There are limits to human reason. |
Passion for, and pursuit of, high ideals trumps all. Human reason has boundless potential. |
| Law evolves and is based on the experience of ages. |
Law is made by trusted elites. |
| Markets offer benefit of experience & experimentation and help develop knowledge over time. |
Markets cannot ensure desired results; must be superseded by planning & patterned justice |
| Exponents: Aristotle, Adam Smith, Edmund Burke, James Madison, Lord Acton, F.A. Hayek, Ludwig von Mises, Milton Friedman, James Buchanan, Robert Nozick |
Exponents: Plato, Rousseau, William Godwin, Voltaire, Robert Owen, John Kenneth Galbraith, John Dewey, Earl Warren, Bertrand Russell, John Rawls |
If I ever had any hope of “keeping up” with developments in the regulation of information technology—or even the nine specific areas I explored in The Laws of Disruption—that hope was lost long ago. The last few months I haven’t even been able to keep up just sorting the piles of printouts of stories I’ve “clipped” from just a few key sources, including The New York Times, The Wall Street Journal, CNET News.com and The Washington Post.
I’ve just gone through a big pile of clippings that cover April-July. A few highlights: In May, YouTube surpassed 2 billion daily hits. Today, Facebook announced it has more than 500,000,000 members. Researchers last week demonstrated technology that draws device power from radio waves.
Continue reading →
As part of its excellent “Room for Debate” series, the New York Times has an interesting new online symposium up now asking, “Will Networks Go Wild, With No Decency Rules?” It was in response to last week’s Second Circuit decision, which again slapped down an effort by the Federal Communications Commission to defend the agency’s indecency enforcement regime. I was honored to be asked to contribute a short essay on the subject. Here are the other contributors and their essays. Take the time to check them out:
I was particularly interested in former FCC’s Chairman Michael Powell’s admission that “The [FCC’s] fleeting expletive policy was a mistake,” and that “the real problem is the now-flawed constitutional foundation on which the law is built.” Powell goes on to argue that, “We cannot have one First Amendment for broadcasting and another one for every other medium. This vestige of a bygone era provides fertile ground for mischief — culture wars, political agenda and moral mandates. It’s high time for the high court to bring our laws into the 21st century.”
I wholeheartedly agree, and I wrote a lengthy law review article on just that topic back in 2007 entitled,“
Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” If you find it too boring, just watch this video I made summarizing the key points, which I called “America’s First Amendment Twilight Zone.”
Julius Genachowski is in a hurry.
He is arguing that the commission must act quickly to “restore the longstanding deregulatory—as opposed to ‘no-regulatory’ or ‘over-regulatory’—compact” that governed broadband Internet access services prior to a recent court decision. Such an approach is urgently needed to “restore the status quo,” he claims.
If the Federal Communications Commission cannot regulate the Internet, it may die. The telephone and television industries are declining, whereas communications industries which the FCC monitors to some extent but does not regulate, e.g., the Internet backbone, broadband Internet access and wireless, are thriving. The Internet, which the FCC cannot regulate, is subsuming legacy communications services which the commission can regulate. That spells doom for legacy regulation. Career regulators are worried.
Genachowski’s plan would reclassify broadband as a “telecommunications” service subject to blunt, onerous, industrial-era regulation under Title II of the Communications Act of 1934 – which governs common carriers – and then forbear from enforcing most of Title II’s heavy-handed provisions.
Broadband services haven’t been subject to Title II regulation for several years, so reclassification would not restore the status quo. It would harken back to a bygone era.
Broadband services provided by cable operators have thrived in the absence of common carrier regulation since before 1999, when William E. Kennard (designated FCC chairman by President Bill Clinton) declared:
If we’ve learned anything about the Internet in government over the last 15 years, it’s that it thrived quite nicely without the intervention of government.
If fact, the best decision government ever made with respect to the Internet was the decision that the FCC made 15 years ago NOT to impose regulation on it. This was not a dodge; it was a decision NOT to act. It was intentional restraint born of humility. Humility that we can’t predict where this market is going.
Though under significant pressure to do so, Kennard refused to regulate broadband services provided by cable operators like the broadband services provided by telecommunications carriers. In 2005 and 2007, respectively, the commission finally admitted that neither telecommunications carriers nor wireless providers provided broadband services that met the statutory definition of a “telecommunications” service under Title II, either.
Continue reading →
The Second Circuit just threw out the FCC’s broadcast indecency rules—which had led to heavy fines for “fleeting expletives”—as “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” What’s ultimately most important about this decision is not what the court did, but what it said: The Constitutional framework that has allowed broadcast censorship has been rendered obsolete by the rise of the Internet and parental empowerment tools for new and old media.
In short, the court utterly rejected the Supreme Court’s 1978
Pacifica decision
—which gave the FCC great discretion in regulating indecency on broadcast radio and television in order to protect children who might be in the audience during daytime and early evening hours, citing the unique “pervasiveness” and “invasiveness” of broadcasting into the home. The court fully embraced what we’ve been saying for years—neither rationale holds true anymore:
we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook,and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in thelives of all Americans.”
The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast…. The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs…. Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. (15-16)
Thus, the Second Circuit all but begged the Supreme Court to throw out
Pacifica completely, but quickly noted that it is “bound by Supreme Court precedent, regardless of whether it reflects today’s realities” (17). Fortunately, the court was able to reach the same result on vagueness grounds. It’s worth reading this key passage to see what a consistent approach to the First Amendment would look like: Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.