Friday, December 24, 2010

Expansion of government regulation over internet raises censorship, privacy concerns

In a further victory for the Obama Administration's long term goal of more government oversight over the internet, the Federal Communications Commission voted Tuesday to impose regulatory control over the sprawling worldwide communication network begun by the Department of defense with a 3-2 party line decision in order to impose so called "net neutrality" rules.

In spite of the administration's assurances that "net neutrality" would preserve the free exchange of ideas and vibrant competition that have become the hallmark of this critical "information superhighway" on which millions of individuals and untold organizations have come to depend for everything from intra-company communication to comparison shopping to political debate and discourse, critics worried that the action might hamper one of the country's few bastions of consistent economic growth at a time when the country can least afford it and set alarm bells ringing for many civil libertarians who feel the very nature of the internet as a free and unbridled medium for exchange of ideas could be at risk. 

Indeed, at least for those civil libertarians among us concerned about individual privacy and civil liberties who choose to trust their own judgment and that of the American people rather than bureaucrats in Washington this is just one more step along the road to surfdom and the eventual complete tracking and control by the government of every single aspect of our lives, including everything we say and do online.

Admittedly, the line is not always clear between sound policy in order to advance legitimate public interests and an overarching federal government that seemingly knows no bounds in its efforts to "save us from ourselves."

But coming on the heels of a seeming abandonment by the new FCC Chief of rules that just a few months ago were being considered that would have allowed individuals to "opt out" of invasive marketing by companies that track and compile the browsing habits of internet users without their explicit consent it is indeed worrisome to see the present Administration's FCC appointees so quickly turn in a direction so starkly in contrast to Congress' and the Bush Administration's previously settled hands-off policy perhaps best exemplified in the adage "if it aint broke don't fix it."

From a legal perspective, undergirding this change is the move from the Bush Administration's classification of the internet as "information services" to the Obama administration's view of internet service providers as synonymous with turn-of-the-century telephone companies and which, at least in their view, should be regulated in much the same way.

The problem with that of course is regulation of the telephone industry arose at a time when the internet, blackberries, and cell phones were non-existent (except perhaps in the minds of science fiction writers!), and in an age in which the monopolization of power in just one or a very few telephone companies was the rule rather than the exception, (does the name "Ma Bell" or the old "American Telephone and Telegraph" ring any bells? pun intended!).  Such a "one size fits all" regulatory regime may have been justified when a cohesive set of rules, applicable to just one or two telephone companies, were employed to correct a tendency away from competition and consumer choice.

Not so today when there is healthy competition in the ISP sphere and literally hundreds of choices available to consumers, with more arising everyday.  Oh, sure, there are the "big three," the new ATT, Verizon, and Sprint, but it is the very level of (low) regulation and open nature of the internet which today drives innovation and consumer choice.  Seriously, does anyone really believe that if the government had imposed restrictions and regulation on the nascent internet industry when it was just getting started we would have anything like what we have today in the choices of broad band, cell, dial up, and wireless providers?

In just the last couple years we have witnessed a veritable explosion in increased access to the internet among all socio-economic classes, (witness public library internet access and once paid but now free wireless "hotspots" in numerous Starbucks, Barnes and Noble and Borders bookstores, and even McDonalds!)

And while it is plausible that it is the government's interest in such matters is contained to merely taxing what has become a huge source of economic activity, (as if that weren't bad enough!) it is the alternative explanation and the impact upon every individual's privacy that government regulation could effect upon freedom of speech that is most troublesome  (and if you don't think any modern government could or would attempt to "control" the internet to stifle dissent and/or harass and track political "outsiders" who don't "toe the party line" just look at China).

True, China is a communist country and we have a Constitution which has guaranteed our basic freedoms, including the right to freedom of speech, for over two hundred years.  But as any historian can tell you, equally free and strong civilizations have fallen; indeed, as another has said, "the price of freedom is eternal vigilance."

Moreover, the "net neutrality" regulations are not the only threat on the horizon of free speech.   Next time I will go into more detail on other policies and potential threats that have the ability to be abused and/or utilized to "chill" free speech and even possibly intimidate and/or "track" people whose political views may not always be the most popular with the powers that be.  I will tell you all about it the next post.  jp

Wednesday, December 22, 2010


Well, it's now official, by a vote of 71 to 26 the U.S. Senate has just passed the "New" Start nuclear arms treaty with Russia in a stunning victory for the Obama Administration after the Nov. 2nd mid-term elections saw Democrats lose control of the U.S. House of Representatives by historic numbers and their power trimmed significantly in the U.S. Senate.

Today, however, it was all eyes on the upper chamber's members, as under Art. 2, Section 2, Clause 2 of the U.S. Constitution it is the Senate which has the constitutional prerogative to accept or reject international treaties negotiated by the Executive branch.

When it came down to it, and in spite of this party's best efforts in contacting several Senators to urge them to reject this ill-advised treaty, the U.S. Senate has now ratified it by the "supermajority" required by the Constitution making it the "law of the land" as much as any other law or constitutional provision, (stay tuned for a discussion on the desirability of such an outcome and the historical context of the applicable constitutional provisions adoption by the Continental Congress, spoiler warning for inquisitive minds, google "Bricker Amendment").

Senate Republicans, in spite of their initial opposition to the treaty, had in the end seemed mollified by agreement from Senate Democrats to include "side amendment" language assuring that the pre-amble of this controversial treaty would not inhibit the right of the U.S. to develop and field a "missile shield" defense system that could protect the United States from surprise attacks from terrorists or rogue political states like North Korea and Iran, (which the West has tried impotently for years to sanction into compliance with international norms and proliferation agreements very similar to the treaty ratified by the Senate today).

Some holdouts continued to insist that language in any such side amendment was not effective and that the treaty failed to address critical issues such as the inequality in Russian tactical (battlefield) nukes versus American, but in the end the Senate chose to ratify the treaty anyway after an intense lobbying effort from Administration members including Secretary of State Hillary Clinton and Vice President Joseph Biden, (both previous U.S. Senators with many friendships and links to the historic chamber of quaint procedural rules and niceties). 

While it remains to be seen if such side agreements between Senators can, in the words of former U.N. Ambassador to the United Nations John Bolton and sticking with the grade school analogy in my previous post, have any more effect than a "letter from my mother" upon treaties the legislators are not even parties to, (as in spite of its importance in our Constitutional scheme the U.S. Senate is not after all technically a legal party to a treaty between the sovereign states of Russian and America), there is no doubt that this vote is a humongous victory for an Administration that some had already written off as a "one term presidency."

Indeed, the passage of the Start treaty caps a week of astounding successes for the Obama Administration after a fitful first two years, including elimination of the Clinton era "Don't ask Don't tell" compromise that allowed gay service men and woman to serve in the military as long as they did not openly trumpet their sexual orientation, a "stimulus two" economic compromise that retains the Bush Tax cuts for two years as well as cuts social security payroll taxes, extends unemployment benefits and reinstitutes the death tax, (albeit at a lower rate than it was scheduled to come back at next year), and a 4.3 billion dollar bill to provide health care for first responders who claimed long-term injuries in the aftermath of the Sept 11, 2001 terrorist attacks on the world trade towers in the heart of Manhattan. 

Though only time will tell the lasting impact of such policies-- which as a separate matter this blog will undoubtedly devote considerable time to examining in the days and weeks ahead-- in hindsight it may very well be that, taking a page from former Predident Bill Clinton's play book after the 1994 elections, the recent mid-term victories by Republicans may end up being a better Christmas gift to the Administration than it could have chosen for itself if it results in Obama moving to a more centrist and pragmatic position of compromise with Republicans that results in passage of more popular legislation in the future that could lift his poll numbers and propel him to a second term.  For that we shall just have to see.  jp

Start Treaty- The U.S. Senate's Rush to Judgment?

By all accounts the United States Senate seems poised to pass the new “Start” Nuclear Arms Treaty with Russia that the Obama Admistration has “negotiated” and is actively attempting to force through the lame duck session of Congress. This is the same treaty that the current President of Russia, along with their military industrial complex and former and Anti-American President Putin, strongly supports and has warned the United States “is not subject to any modification” lest they pull out from the treaty altogether. And no wonder! The treaty, as currently written provides for less stringent inspection and verification than its predecessor and has very little in it that is not favorable to their position.

Most troubling to the interests of the United States is the language in the treaty's preamble-- which the Russians have made clear they interpret as forbidding the U.S. from building and/or employing any “star wars” type of missile shield to protect innocent American cities and civilians from surprise attack at the hands of terrorists or rogue states like Iran and North Korea-- and gives the Russians a distinct advantage by handicapping America from being able to protect herself and allies around the world from unprovoked rogue attacks.

In fact, other than allow resumption of limited visits from U.S. inspectors to “verify” the total number of Russian nukes, (with reciprocal rights for Russia, of course), it is hard to see what's in it for the U.S. and the freedom-loving world. Notably, the treaty does nothing to reign in the threat to the Western world posed by the significant arsenal of “tactical” nukes that are mobile and can be quickly deployed (and used) in actual battlefield scenarios and would leave the Russians and her closest neighbor and Ally, China, with a distinct advantage on the ground in the event hostilities ever were to break out in that part of the world.

Indeed, this treaty leaves the Russians with their current ten to one superiority over the U.S. in tactical nuclear weapons, arguably a much more destabilizing and threatening aspect to the current state of international relations and affairs than the simple and much less strategic “inspection focused” regime envisioned by the treaty, (especially with its less stringent provisions).

Then too, other than for the very "imperialism" the left constantly bemoans and often denigrates it's more pro-American countrymen for, the insistence of doing this “now” in the "lame duck" session of the outgoing congress smacks of its own "intellectual imperialism" to the point of the irrational.  I mean, let's face it, as old as it is, the still existing "MAD" nuclear framework which assures both sides of their ability to respond with overwhelming force and blast each other off the face of the earth if attacked first will essentially be left unchanged regardless of whether or not this treaty is ratified

What will be changed however, in the Obama Administration's myopic insistence on forging ahead with its attempts to “reset” relations with Russia after the Georgian invasion and War in Chechnya-- both of which the U.S. opposed but were forced to stand by idly while thousands of innocent civilians were massacred, raped, and pillaged in the name of Russian rights to preemptively defend her “sovereignty” and “geographical homogeny” in that part of the world, click here and here-- is the U.S.'s ability to move forward with our already well-underway efforts to protect our population and military and strategic national interests from both terrorism and aggression in the midst of an ever more chaotic and uncertain world.

Coming on the heels of the Obama Administration's decision to “leave our allies at the altar” in the decision to reverse the Bush Administration's promise to protect our stalwart allies and new Nato members Czechoslovakia and Poland with regionally based missile defenses this is proving no small feat; indeed, one has to question whether such decisions are being made out of any real military or strategic analysis or simply as a result of Obama's now evident adoption of the long-discredited ideology of “peace at all costs,” (google "Neville Chamberlain" circa pre-World War two if you are not familiar with this concept). 

This ideology, a core part of the now aging liberal paradigm of the 60's based on equal parts Anti-American “imperialism” and equal parts “liberal guilt”-- as well as a na├»ve view of international affairs and the human condition-- wrongly assumes that if someone is mad at us it must be “our fault” for being the world's largest superpower and if we just “play nice” and appease our enemies they will return the favor in kind, is as dangerous as it is incorrect. (Indeed, as any school child of tender years can tell you, there is only one way to deal with a bully, a fact just as true in international relations as on the school yard, and no, it is NOT by giving him your lunch money!).

At stake however is far more than a school child's psychology lesson. In light of the Russian governments military exploits in Chechyna and Georgia and manifest willingness to persecute (and even murder!) its own citizens who they feel could pose any “threat” to their current authoritarian regime, see here, here and here, as well as exhibiting its willingness in recent years to use energy supplies as a geo-political weapon by threatening and actual shutting off of natural gas supplies to Ukraine upon which greater Europe relies to heat its cities during their brutal winters, see here-- it is entirely non-sensical to reward them with the ratification of this lopsided treaty. 

Indeed, to do so in light of the above actions revealing the “new” and “democratic” Russia to be more akin to an international “bully” than a reliable international ally for “peace and goodwill towards men” could actually embolden them to take other actions with an air of impunity that could in fact RAISE the chances for conflict between our two countries.  It also will have the collateral inhibiting effect on the present Administration and policy makers to not take any actions that might "upset" the Russians so as to cause them to pull out of the Treaty, (indeed, such is inevetible in light of the President openly saying the U.S. is proceeding with its plans for a defensive missile "shield.").    

In light of these facts the rush to ratify this treaty during a lame duck session of Congress in which the people's representatives cannot delve into such questions and their ramifications seems particularly ill-advised and raises the question, if this Treaty is so good and “fair” to American interests, why can't it withstand the heightened scrutiny it would come under if the time were taken to properly analyze it when the new Congress takes over in January?

To the contrary, the solemnity which should attend entering into such international obligations, (which once ratified carry the same force and weight under our Constitution as our Bill of Rights), demands that the utmost care and full analysis and debate be undertaken before proceeding, (especially since the Russians seem so happy with its terms as is).  At worst such a delay would allow time for clarification by the Russians that the pre-ample to the Treaty does NOT preclude a defensive missile shield sufficient to protect against rogue nuclear states or terrorist attack, at best it could result in a complete reworking of the terms of this treaty, (which in light of the the current provisions, would not, in our view, be a bad thing).

Treaty supporters are quick to point out that various previous political leaders and “every previous American head of state” supports passage, including Henry Kissinger and current Secretary of State Hillary Clinton, but a close examination of their comments and recent editorials on the subject in fact shows many, including Henry Kissinger, have actually raised several concerns, including with the verification system and the question of tactical nuclear weapons, that are shared by those who wish to simply take a closer look at this treaty before ratification.

And while Republicans in the Senate, with their traditional deference to the Executive branch in affairs of national security, do not wish to appear partisan or as if they are “playing politics” on such important matters, neither should they simply “rubber stamp” whatever the Administration presents them instead of exercising their own independent judgment as is befitting of Senators in light of the critical effect this treaty has on our ability to defend ourselves against rogue attacks in an age of terrorism.

Moreover, and even more tellingly of this Administration's modus operandi, the executive branch's forging ahead in spite of the recent and significant congressional losses in the U.S. Congress can only be seen as a further slap in the face of the American people that the recent repeal of “Don't ask Don't tell” by a Congress whose agenda has just been repudiated by the voters seems to be and is reminiscent of the kind of back room deals and hard-ball political tactics used to pass the huge Obama Care legislation by any and all means when it was far from clear the American people either wanted nor needed such legislation, (hmmm, can you see a pattern here?)

While such examples vis a vis the Administration's self-aggrandizing arrogance are beyond the scope of the present post, the growing penchant this administration seems to have for ignoring the expressed will of the American people as exhibited in the ramming down our throats (no pun intended) of such controversial and politically charged “agenda items” as the repeal of “Don't ask Don't tell” (long on the political wish list of the liberal set in Washington) reveals a troubling lack of proper priorities and contempt for the American people when it comes to either discerning (or listening) to their wishes.

Indeed, such concerns, (as well as those attending rushed passage of this incredibly flawed and one-sided agreement), seem to have fallen on deaf ears in the Obama Administration's all-out push to force through the Start treaty's ratification in the lame duck session without a chance for a full and thorough consideration of this binding agreement's ramifications upon the cause of a lasting international peace and the security of these United States.

Hopefully, the United States Senate has a better sense of hearing. jp