"Net Neutrality" and Freedom of Speech in the Age of the Internet, Part Two

Hello all.  I trust everyone enjoyed their holiday(s) and ate enough fruitcake, pie and the usual fare to last them another year or longer, (in light of the still bleak economic picture, rising inflation and expected draconian increases in food prices from additional government regulation perhaps quite a bit longer).

I do apologize for my delay in getting back to blogging after the holidays, but I had an important project I needed to finish up, and am now ready to get back to regular blogging.

I also have some potentially great news regarding additional media exposure, main web site development (as opposed to this blog, still in the works), and additions to our leadership team, (more on this later).   For now, and as promised, in this (and following posts) I will continue to examine personal privacy in the digital age and the potentially dangerous threats to freedom of speech on the imminent horizon of our national experience in the wake of the "net neutrality" regulatory scheme just approved by the F.C.C. (among other things).

Before I begin however I would like to clarify something, (lest we receive mail from those who may be new to our work and misunderstand).

As an organization we are not always opposed to sensible government oversight.  Indeed, in matters where there is a legitimate and compelling public safety interest that overshadows other public policy considerations the American Center for Law and Policy realizes there is sometimes no substitute for reasonable regulation, (say, for example, in airline maintenance or prescription medications).

However, in line with our overarching goal of maximizing individual liberty and limiting the ever-increasing invasiveness of government over all our lives, in areas of society that do not seriously and directly impact public safety and welfare, (admittedly sometimes a difficult line to draw), we unabashedly support freedom of the individual over that of the interest of "government" just for government or regulations' sake.  It is this category that we feel control and/or regulation of the internet falls, for the most part, into.
With that clarification (and caveat if you will), back to the discussion at hand.

Many of the issues the F.C.C. has cited in support of the passage of the new "net neutrality" rules-- such as ISP's "throttling" of specific internet users deemed to use up too much network bandwidth caused by, say, downloading "excessive" software, videos, or the like-- are indeed real problems.

However, for those of us who believe in adhering to Free Enterprise principles for the solutions to such problems-- solutions that will at the same time preserve maximum freedom and all that is good with the internet-- passing an entirely new regulatory scheme to address the relatively minor problems that may exist is a lot like using a shotgun to kill the flies that get in the house in summertime.  (You might kill the fly you're aiming at, but you might do so at the expense of a new custom made "picture window" in the wall!)

Indeed, when it comes to problems such as throttling, equal access, and even issues such as internet obscenity, (and if you don't know what that means I will, for obvious reasons, refrain from coloring in the details for you), for those of us who are more concerned with preserving maximum freedom of expression and all that is good with a system that, for all its problems, is essentially the world's first and only truly open form of interactive communication in the history of man, we see far more insidious problems than those the F.C.C.'s proffered solution "solves."

Indeed, in what may truly be a case of the "cure" is worse than the disease, regulation of the internet as a "telephone company" was apparently done in seeming oblivion to much simpler solutions.

For instance, in a truly "free enterprise" system, ISP's wouldn't want to alienate a whole block of customers, say those who use large globs of bandwidth downloading whole series of television shows or movies, (legally of course), because if they did, those very same customers could (and likely would) move to a competing company offering better service.

The point?  The simple solution here, rather than regulating telephone and cable company internet providers so as to restrict their entry into the geographical "backyard" of their competitor, (as is still for the most part done with utility and telephone companies), would be to allow truly open competition among ISP's for the customers in the same geographical area.

Ideally, old geographical/ regulatory considerations would give way to those governed by the assets, willingness to risk investment, and physical infrastructure of the companies that wish to compete for customers in a given area, (a true "free enterprise" model in which consumers can only benefit by companies who, eager to steal away market share from their competitors, continually try to "outdo" each other by offering ever-better prices, quality, or selection of services).

In this kind of environment-- which, mind you, could be established without any need for freedom-limiting and innovation-stifling effects of regulation government intervention with its ever-accompanying risk of government taxation-- a company would always be afraid that, if their practices, (say on "throttling" bandwidth hogs disproportionately using their network), offended significant numbers of their customers, those customers might simply switch to another company which doesn't use such tactics, (or, better yet, even caters to the particular needs of such customers for a premium which they might gladly be willing to pay if they could be assured the level of service they desired would be provided).

In this way, then, you can see that an open and unregulated system could easily provide an efficient solution to the problem of throttling without the all the negative and "collateral damage" that additional government regulation often encompasses, (and so it is with most, if not all of the various perceived "problems" with the internet, or really most any endeavor in society).

The problem is that nowhere in the "telecommunications industry," (which the government has just now assured the internet is forever tied to), is such a truly "free enterprise" economic system allowed to exist where companies are allowed to compete in the same geographical areas, (at least not under the "telephone company" paradigm now approved).

And unfortunately, as is the nature of such things, instead of embracing change towards just such a "new" and truly "open" system that might actually allow the free enterprise system a chance to provide solutions to such "problems," government is often slow to realize the benefits of such changes and move from the status quo of what has "worked" in the past, (even it is really didn't or is no longer able to in the light of technological advances).

Of course, free enterprise solutions are not exactly "new" to our great country; indeed, they are the driving force behind the unparalleled innovation, standard of living and myriads of choices Americans have enjoyed for years in a multitude of industries, (from food brands to automobiles), but just because a good solution may appear obvious doesn't mean that government doesn't often miss the forest for the trees, (and the internet is no exception).

It is our job as citizens, with the power of the ballot box and the very freedom of speech we sometimes take for granted, to remind them of this fact.    jp

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