an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Will Obama FCC Break Network Neutrality Promise—Undermine 21st Century Public Sphere?
A somewhat obtuse Washington Post article today says that the FCC Chairman is considering a “deregulatory” framework for Internet access.
Translating the article is simple for thosewatching this debate at political sites: the FCC is considering following the Bush administration’s disastrous policies of stripping itself of jurisdiction over Internet access, treating such access as effectively un-regulatable “information services.” The FCC’s recent loss at the D.C. Circuit made it clear that the practical effect of such a decision would be to hand the Internet over to the phone and cable companies, undermining innovation, competition online, and Americans’ interests in free speech, in privacy, and in associations. The FCC would then face insurmountable legal obstacles to pursuing network neutrality, a common-sense policy that would forbid cable and phone companies from doing what they’ve long lobbied to do: block or discriminate against websites and applications on the Internet. This would violate Obama campaign promises. (See clips here and here, for example.)
This episode is an example of what Jack Balkin often writes about—how the most important free speech issues of our day will not be decided by the Supreme Court but through technical decisions by bodies like the FCC. And they will be decided not by lawyers or engineers or policy experts, but perhaps by lobbyists and executives working for the phone and cable companies. These lobbyists are urging the FCC to follow the path of bureaucrats and politicians before them: break a promise to the public, but do it in an obscure, technical-sounding way so that nobody understands, until it’s too late.
At the heart of the debate is the issue of Internet openness – whether to allow the phone and cable companies to control everything you do on the Internet, or to ensure that the network infrastructure provides access to an open, unfettered space for communications. Many scholars have written in this space – Jack Balkin, Larry Lessig, Yochai Benkler, Barbara van Schewick, Tim Wu, Mark Lemley, Susan Crawford, and Brett Frischmann, to name a few. All of them have supported control by the public over control by the phone and cable execs. Tim Wu, Susan Crawford, and I explained the legal issue in a letter to the Chairman we sent last Friday.
And the FCC has ostensibly supported this goal as well – the Chairman has pledged “unwavering support” for network neutrality. The President has said he is a big supporter or network neutrality and that he would appoint FCC Commissioners who supported network neutrality. But to get to enforceable network neutrality, the FCC must first correct the mistakes of the past, most made under the Bush administration. The FCC under George W. Bush stripped itself of jurisdiction over Internet practices with decisions issued from 2002 to 2007—in that deregulatory haze that led to Wall Street abuses, our Internet infrastructure falling behind other nations, and an economic collapse. Regulation to protect consumers and competition was considered as quaint and outdated as the Geneva Conventions.
The Obama administration promised to reverse these failed Internet policies, and Barack Obama emphatically promised network neutrality during the campaign and since becoming president.
In 2005, the Supreme Court had upheld the Bush framework under Chevron, but made it clear the old, traditional, framework was also a reasonable interpretation of the statute, and one that gave the FCC clear authority over broadband communications services.
In early April of this year, the D.C. Circuit told the FCC that the Bush policies, while a reasonable framework under Chevron, left the FCC with very-little-to-no authority over broadband. Under the Bush framework, the FCC could not even stop the largest cable company from (secretly) blocking valuable and popular Internet applications. This was a pretty stark violation of the open Internet, which the Bush framework couldn’t reach.
The logical next step, in the wake of these cases, is self-evident: go back to the old pre-Bush framework, the framework that (even) Justice Scalia and two other Justices believed to be the unambiguous intention of Congress. That framework is found in Title II of the Communications Act, designed for all two-way communications networks.
The FCC imposes this framework on many broadband services already: business networks, middle mile networks, and many rural Internet networks. Title II even governs supposedly competitive, largely deregulated phone services, like long distance calling and mobile phone service. The FCC also has the power under Title II to forbear from any really problematic, onerous regulations, and tailor regulations to individual networks and circumstances.
Fixing the Bush mistakes should be a no-brainer for this administration, and it would clear the path for network neutrality, universal service for broadband, privacy protections, network security policies, and a host of other essential issues.
But recent press accounts suggest the political pressure of the few, powerful phone and cable carriers might be too much for the politics of hope. Organized money may defeat organized people. I find it hard to believe, but public choice theory suggests that the incumbent corporate insiders will win. And that will transform how we participate in public discourse, volunteer for campaigns, create culture, dissent politically. That will act to close off many of the most important channels of political change in our nation, and the world.
The principle of network neutrality is—as Jack and Yochai and others have written—one of the most important principles for ensuring freedom of speech in the 21st Century. If this issue goes the wrong way, it’s not only a broken political promise, but disastrous policy for our democracy. Posted
by Marvin Ammori [link]
While I'm a firm believer in enumerated powers doctrine, I note that one of the enumerated powers is the power to run a 'postal' service. The government could, if it wished, provide nation wide broadband as a government service, without usurping any power.
And some kind of network neutrality would be constitutionally mandated for THAT ISP. The first amendment working rather differently when it applies to government actions, than when it applies to private.
Of course, constitutionally permissible or no, I suspect you'd find in practice that such a system made you long for the days of AOL, when it came to neutrality, transparency of administration, and privacy concerns...
From postal roads, with the pony express, to broadband might be a stretch for originalists. Keep in mind that Lysander Spooner pre-Civil War challenged exclusivity of the federal government with mail; although unsuccessful with his business venture, postal rates came down significantly as a result of his short competition. Now we have UPS, FedEx, etc, competing effectively with the mails. And the Internet is virtually universal, such that there is ever more competition with the Constitution's postal provision. Can we expect the federal government to "go postal" with broadband?
Tom Toles' political cartoon in today's (5/5/10) WaPo "The supreme law of the land" regarding entrances to the U.S. Supreme Court brings into question "Equal Justice Under Law" neutrality and what we can expect from the Court on net neutrality. Are the "Umpires" asleep?
"Keep in mind that Lysander Spooner pre-Civil War challenged exclusivity of the federal government with mail; "
And rightly so: It's quite a jump from, "The Constitution says the government can do X" to "The Constitution permits the government to forbid anybody else from doing X. The former doesn't even imply the latter.
Further with respect to Lysander Spooner, it should be noted that in the 1840s he had published a paper claiming that the Constitution was an anti-slavery document. This was hotly contested by my hero, the abolitionist Wendell Phillips.