Friday, October 23, 2009
John McCain's Internet Freedom Act is Eminently Warranted
I voted for Barack Obama, don't like Fox News, and think our health system is in need of long due reform. I thought the McCain campaign was one of the worst in years, bringing lowlights ranging from Sarah Palin to Joe the Plumber on to center stage.
But John McCain's Internet Freedom Act, a bill introduced to make sure the FCC does "not propose, promulgate, or issue any regulations regarding the Internet or IP-enabled services" - in the wake of the FCC's unanimous vote yesterday to move forward with debate and promulgation of net neutrality rules - deserves the support of everyone who values the First Amendment and our freedom.
Net neutrality seeks to make sure that the Internet remains a level, open playing field, not dominated by corporations that may give favored treatment - charge less or nothing - for services that may line the pocket of the corporations but deprive users of better services. I strongly support the ideal and practice of net neutrality.
But I strongly oppose any attempt to make this happen by FCC fiat. I take "Congress shall make no law ... abridging the freedom of speech, or of the press" - the First Amendment - seriously.
A surprising number of people miss this. Tony Bradley, writing today in PC World, asks - about what McCain's bill seeks to prevent the FCC from doing - "Isn't that what the FCC does? Isn't that sort of like introducing a bill to prohibit the Treasury from printing money, or a bill to prohibit the IRS from collecting taxes?"
Sadly, yes, and no. Yes, this is what the FCC does - including levying millions of dollars of fines for television programs it finds objectionable - all the time. Even though there is a First Amendment. And yes, tax collection is what the IRS does. Because, like it or not, the Sixteenth Amendment gives our government that power. But the First Amendment has not been repealed or amended, last time I checked.
We have become so accustomed to its trampling that Bradley's argument almost seems plausible. But every violation of the First Amendment makes the press - in newspapers, radio, television, and blogs - less able to do its job for us, which is ever keeping a watchful eye on our democratically elected government, so we can be as informed as possible in the next and every election.
I doubt I could ever vote for John McCain, even with his introduction of this important bill. But he deserves our thanks for introducing it, and the bill warrants our support. We can work for net neutrality in many ways - especially with our patronage of sites and organizations that do the right thing. Extending the FCC's unconstitutional regulation from radio and television to the Internet is manifestly not the way to go about it.
See also The Flouting of the First Amendment
Subscribe to:
Post Comments (Atom)
14 comments:
I would agree that the FCC has had a tendency to dance on the line between 1st Amendment freedoms and their violation, but I'm not sure I follow your logic on this one.
How is the FCC abridging the freedom of speech in this case? It seems to me that it is clearly preventing corporations from using their technological advantage over the citizenry to shape and direct "speech" in a way that suits or favors a particular worldview.
In fact, the Constitution says very little about the responsibility of the government to prevent parties from impinging on the free speech of other parties. We've taken that up as a kind of American value that goes along with the spirit of the Founding Fathers, no?
It's in the spirit of our American tradition and in keeping with the spirit of the freedom of the press that information regarding our democracy be given free movement without hindrance. The Founders accounted for this in Article One by laying the groundwork for the Postal Service. Jacksonian Democrats broke the telegraph from the Post Office and began a cycle of privatization of that important function. The Telecomms are the spawn of that moment in our history and Net Neutrality is simply an attempt to return the United States to the intent of the Founders and their writings in Article One.
I'm not sure that they'd agree with your interpretation of this issue as one of free speech vs. the FCC. I could be wrong, but I read it differently.
As a libertarian who strongly despises both John McCain and Barack Obama, I agree with your views on the first amendment and the FCC.
However, I see something suspicious from that article:
"Oddly, the bill also contains text stating that any regulations in effect on the day before the Internet Freedom Act is officially enacted are grandfathered in and exempt from the provisions of the Internet Freedom Act. The implication seems to be that if the FCC can formalize net neutrality rules before McCain can get the Internet Freedom Act signed into law, the net neutrality rules would still apply."
It seems to me his bill will be adopted AFTER the FCC gets control. It will then have a less than desirable effect.
To elaborate on my first point...teh Postal Clause of Article One gives Congress the power to designate roads as postal roads, for example, and even Jefferson saw the importance of this process (although he favored State control, rather than Federal). The internet is our modern postal road system. By that logic, Congress has every right to designate and regulate the terms of its use. The Constitution and the explicit intent of the Founders provides that authority.
In fact, the Supreme Court has challenged the Postmaster General's right to restrict content, in the case of "obscene materials" for example, under First Amendment guidance. That would seem to contradict your point, if you read it as I do. It would seem that the Supreme Court has stood against the restriction of free speech by the gatekeepers of the national postal system, which much include the Internet by any reasonable definition of its purpose and nature. The ability of gatekeepers like the Telecomms, which exist in their current legal form at the pleasure of Congress and the people of the United States, to restrict content in any way by diverting fair access to the postal road (the Internet) would seem to fall directly into the intent of the Founders in giving Congress authority over their use.
No?
Mike - Here, in a nutshell, is my problem with the FCC: It was created in the 1930s to make sure radio stations did not broadcast on frequencies that were too close to each other, and might technically interfere with the broadcasts. In the past few years, the FCC has fined television stations millions for broadcasts that the FCC found "objectionable".
See the problem, and why the last thing we should do is give the FCC any kind regulatory control or input over the Internet?
H.J: that's a good point. The bill should be amended to make sure no FCC control is grandfathered in.
So if Congress were to be in control of oversight on Net Neutrality, you'd be okay? I'm arguing that would be consistent with the Founders' intent. The FCC is truly a debatable proposition, and not all that different than the Postmaster General as an Executive Branch appointment (which Jefferson opposed).
No, the FCC was a creation of Congress - I would not trust Congress not to create another agency that would do the same unconstitutional things as the FCC.
Newspapers did quite well without any government regulation - and would still be doing well in serving our democracy, were it not for the media evolution of radio, television, and the Internet.
I think the press is a far better model for the Internet than the Postal Service. The most significant aspect of the Internet, regarding the public realm, is not email but the myriad of huge and little sites - or, the online equivalent of newspapers.
The problem in the analogy, I think, is that the Internet itself is not a newspaper. It's not even a television studio, radio station, or a telegraph office. It's the road itself. It's nothing more than a means of delivery. It's the medium for communication, not the message.
The FCC and Congress would be extraordinarily overreaching to restrict the content of speech any more than we've already deliberated in our legal history. This is the regulation and preservation of the road for postal carriers and newspaper delivery people. Its the regulation and preservation of the public airwaves. The Telecomms have the capacity to put up roadblocks, detours, and their own signposts to direct traffic in whichever way they see fit. They are putting pace cars on the road to force you to go the speed they like. Imagine you have a choice of two supermarkets in your town. The owner of Stop and Shop gets a fleet of cars to clog all the roads leading to A&P and in essence forces you to give up on A&P in favor of their store. They make that fleet of cars available to their good friends who throw them cash as a thank you and you can't get to the CVS for the Duane Read flak on the streets.
The Telecomm's have a basic monopoly in most markets for high speed internet access. They can run all the flak they like for whoever pays them to do so. With the internet the road for our modern day postal service, news carriers, television airwaves, radio airwaves, and commercial streets, these few Telecomms are controlling the capacity for citizens to engage in speech of any kind with the people they wish to communicate.
The Internet is the road in this equation and, constitutionally, Congress was given the power to handle the roads by the Founders themselves for the express purpose of facilitating and protecting a robust public communication. I can't see how Net Neutrality is anything but an extension of that Congressional power, as given to us by the very people that wrote the Constitution. Hell, it's in Article One!
Whatever the reach of Congress and the FCC is on content can be hotly debated, and should be at all times. This issue is about the medium of modern cultural, democratic, American communication and the issue of free speech and the 1st Amendment would seem to me to be deeply on the side of keeping the roads free and accessible to all without flak.
But I didn't say the Internet was or is analogous to a newspaper - I said it was analogous to or is a kind of press - newspapers (and, for that matter, book and magazines) in aggregate.
And you still have not addressed the point I've been making about what the FCC - and therefore the government - has done to broadcast media. Or, to radio and television, which run much deeper than any specific radio station or television station or even network.
Given the damage the FCC has done to broadcasting - preventing us from seeing certain kinds of programming, because the FCC finds it "objectionable" - why should we not be very concerned about what the FCC likely would now do to "Interneting"...
I'm not sure the Internet as press is the best metaphor, though I concede there are some similarities. The various software platforms available via computers and web-hosted sites are more like a press. The Internet is far more like a system of roads and trucks, in the same way the telegraph was a replacement for the horse. The various materials in aggregate could also describe a library, but the difference between a library and the Internet is broad transmission. That's why the road and trucks is a better way to think of it to me.
I didn't really address the FCC issue directly because the issue here isn't the historical damage they've done to broadcasting because it's mainly an issue of content. They've put their fingers into determining what's objectionable, which is clearly the government restricting speech. This case is more about the government protecting the legacy of free movement of communication as established in Article One.
When the government decided to regulate the public airwaves to avoid chaos they were doing this. When they mandated local public access in exchange for cable monopolies they were attempting to do this. Both of those things certainly have their flaws, but had they not done either of those things, the public would have lost those forms of communication 100% to private interests with the power and resources to monopolize them.
In this case, the government isn't proposing to restrict content, but to make sure that private corporations don't supersede the government in deciding who has access to the Internet. If Net Neutrality passes, corporations won't be able to prevent us from seeing certain kinds of programming that it finds objectionable or unfavorable. They won't be able to limit access to information in favor of other information.
We should always be concerned about what type of control the FCC and the government take over our means of communication, but, to me, that doesn't mean that some government control isn't warranted.
You wrote: "When the government decided to regulate the public airwaves to avoid chaos they were doing this. When they mandated local public access in exchange for cable monopolies they were attempting to do this."
By "this," you meant that the government was being helpful and constructive.
But my point is that the "this" also led to threatening radio stations that played drug-related lyrics in the 1960s (which led to many stations not playing Phil Ochs' Small Circle of Friends, which actually was anti-drug), threatening WBAI about broadcasting George Carlin in the mid-1970s, fining stations millions of dollars in the past few years, etc.
So I guess the difference between us is that I'm not willing to risk any of my "this" (destructive results) for your "this" (constructive results) with any government regulation of the Internet.
No, the difference, I think, is that in any intervention by the government we risk overreach, but without the government's intervention we are virtually assured of losing the freedom of equal access to corporations.
My feeling is, there is a clear system of petition to the government. The government is, at least in theory, accountable to the people. If they set up a framework by which the Internet is protected, and then overreach, we're dealing with a case. When we bring that case to the courts, we set precedent. If we leave it to the corporations, they get a foothold that will be impossible to untangle thanks to the swift moving developments of corporate law that send tendrils of tangled legal mess into the system that are too complicated, interwoven, and generate too many legal expenses to be worth fighting. That's how they operate.
With the government, some 1st Amendment cases that are intellectually arguable in court will appear. Without the government, we lose everything. That's the faith I have in the relationship between the government and the people. I have no faith in the corporations since they have proven time and again that they are above the law and unaccountable.
What have we lost without government intervention and regulation in the publication of newspapers and books?
Though the press/Internet analogy might not be 100%, you agreed above that it had some validity.
How can you then claim we will "lose everything" without government intervention in the Internet?
Indeed, we have had no government regulation from the beginning of the Internet until now. And the Internet's been functioning as a very vibrant medium, in everything from politics to entertainment - and has given rise the the new new media I examine in New New Media.
The difference between the situation in newspapers and books is that their method of delivery or distribution is roads and trucks. Imagine corporations had the ability to restrict traffic to a competitor's store by putting up a roadblock. Wouldn't we want the government to get involved there. If Borders simply said, "We're going to put an end to Barnes and Noble by blocking all entrances to their locations," would that be acceptable?
The Internet is that road. What if Time Warner decides they want to put up roadblocks in front of the New York Times site, or slow down traffic for a third party candidate in a contested local election. What if they slow down the Almond Joy flash ad in favor of the Mounds ad because they hate nuts? It's the capacity for corporations to throw up the roadblock that is different and it's also something that is much harder to prove as intentional.
I agreed with you on the analogy of the press and the Internet in the respect that the HTML programming is akin to woodblocks or lead type. The press itself is the computer, but the ability to put it in action is the Internet, among other things. HTML is relatively useless without the Internet. In most other respects, I think the Internet is simply a distribution highway.
The Internet has been a clear highway, more or less, until now because it's like a frontier. It's mainly not understood. The problem of Net Neutrality is precisely that cases of intentional roadblocking or detour construction have been cropping up as watchdogs have become more savvy. It's no wonder that the US is something like 15th in global broadband speed. It's because no one knows about it.
http://is.gd/4CkLJ
That link is to a study showing that the US is getting squeezed already. In Japan, the avg. broadband speed is vastly faster than the US.
Post a Comment