Wednesday, April 07, 2010
How I Lost the Big One, Bigtime
On Tuesday, the D.C. Circuit ruled on an important Internet law case I argued for the FCC's supporting Intervenors, where the court rejected legal theories I helped craft on complaint I filed when I was, oddly, the only on-staff lawyer of the lead complainant, the media reform/open Internet group called Free Press. (I had deferred my current law professorship for that position.) Jack wrote about it yesterday, and I wanted to post a few thoughts about the decision.
Jack Balkin noted:
What does this mean for the fight over network neutrality?
Less than you might expect.
So, do you two disagree?
As to Mr. Lessig ... I found his second guessing naive. I doubt the Supreme Court would have decided differently than the 7-2 ruling handed down if he just would have used another argument, somehow. I say this as someone who supported the dissents.
So, I'm glad you are not second guessing yourself.
". . . and the US will continue to fall behind the rest of the world with far slower, more expensive, and less innovative broadband service, strangling our economy and harming our democracy."
This is what happens when your Constitution and highest courts construe or draw a judicially created false equivalency between "legal property fictions" and "natural persons", when property "rights" are valued above almost all others and where "profit" is the highest human/citizen "end" to be pursued above all others.
Nobody in positions of political or economic influence or authority give a rat's ass if the internet is slower or more costly or harms democracy. They care if it is "as profitable as it can be". For somebody. Usually somebody who spends lots of money lobbying to keep it that way for their narrow benefit. Especially when that lobbying is on behalf of some legal entity (or association of them) that has a near monopoly on some product or service.
Our national motto should be changed to "So Long As I Get Mine!".
Color me shocked. We want a solution to all these related problems there needs to be a simple Constitutional Amendment that says "legal property fictions of whichever type" are not entitled to or afforded the full panopoly of equal rights and privileges as natural persons.
And then have a democratic debate about the scope and nature of the rights and privileges entities engaged in particular (non)economic endeavors should have.
Short of that prepare for more of the same.
Given the way the government often functions, a likely revised outcome from FCC's perspective in the near future, given the imperative of deploying the current vigorous broadband nationwide initiative, might be simply disbursing money to carriers, and adding a dollop of the national security state's aims by government's underwriting deep packet inspection (DPI) to the strongest companies. I felt sorry for the deregged babyBells who faced hordes of small competitors at the dawn of the internet clamoring for unbundled network elements (UNE); the Bush FCC cushioned the industry principals from that untoward eventuality. Yet, there is some merit, I believe, to the concern in the industry regarding bandwidth thirsty applications.
A little money, a narrowed field of competitors, and a little DPI; there is a bureaucratic solution that can develop, if congress eschews relooking at the mess they have overseen since the mid-80s with telco dereg, then mid-90s with the beginnings of the internet.
Fortunately, FCC has ample tools in its armarium to address reshaping the topology and velocity of our online internetworks. Congress will have to remain sidelined contemplating the senate's chosen parliamentarist dysfunctionality threshold supermajority rule, while the current administration waxes creative, to actually provide enhancements to service.
There was a charming conversation with RHundt here a few years ago on this very topic. The only differences in the milieu since that interchange have been the advance of the surveillance atmosphere and the suspended animation in the senate which continues searching for its sixty votes, though at its foundation a majority ruled chamber.
I appreciate the effort of the author and associates.
What if the FCC reverses the decision underlying the BrandX case and declares internet a telecommunications service? Then the telecoms would be common carriers with an anti-discrimination requirement.
Of course, Congress could just pass a law to actually GIVE the FCC statutory authority in this area, and as I understand it, that would neatly overturn the ruling. But that's a radical idea, a regulatory agency claiming authority based on an explicit law, and asking Congress to officially extend it's jurisdiction, rather than just claiming the extension.
IOW, maybe you should have spent your time arguing before Congress, not the courts?
My own opinion, of course, is that I'd much rather see something done about local governments handing telecommunications companies exclusive franchises, than net neutrality. Better to get some real competition, than try to make monopolists act as though they were in a competitive market.
I'm with Brett on this one. In my opinion, something as important as net neutrality should be protected in formal legislation, not in the easily changed orders of executive agencies.
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