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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Today's op-ed makes some garbled, bizarre claims about the UN betraying a fundamental misunderstanding of law. His op-ed claims that (1) back in the late 1990s, nations in the International Telecommunications Union (a UN agency) decided "not to regulate" the Internet but later the ITU tried to assert jurisdiction over the Internet at two conferences (known as World Summits on the Information Society); that (2) the ITU might assert jurisdiction now as a result of the US FCC pursuing network neutrality (which requires a regulatory reclassification); that (3) the US lacks a "veto" at the ITU, making all this a big problem, and therefore that (4) US net neutrality efforts would undermine Secretary of State Clinton's global Internet Freedom initiatives.
All of these seem dishonestly inaccurate or Ted-Stevens dump truck crazy. I'll begin with the most obvious--the US "veto" at the ITU. The US doesn't need a veto. There's no enforcement mechanism for the ITU. It's pretty much a standard-setting and discussion body. Countries could sign a protocol making them subject to arbitration on ITU matters--but the US has refused to sign on, meaning we're not subject to it. There is no enforcement. In any ITU treaty the US does sign, however, the US can even take a "reservation" to any part of the treaty, so that part of the treaty would not apply to us. (We do this for global spectrum coordination, as do other nations.) Finally, the US has bargaining power--the reason the ITU didn't impose rules in the late 1990s or assert multilateral jurisdiction at WSIS was the US opposed. We have "effective" vetoes, if we needed them.
----So, question 1: Could you clarify why you think our lack of a "veto" is so important? And do you also fear the Easter Bunny?
Also, it's unclear what McDowell thinks the ITU will do. The ITU has a role for the Internet--it helps set standards and helps coordinate spectrum for broadband services. Nothing scary there. But he suggests the ITU will sanction global censorship based on "the public interest" (the touchstone of the US Communications Act, as though the US is some censorial dictatorial nation depicted by Glenn Beck). But, if he is right, several countries already censor--Iran, North Korea, Syria, Thailand, Afghanistan, and Venezuela.
---Question 2: Commissioner, could you name the oppressive nations that, like you, do not understand the ITU's limited role and are therefore patiently waiting for the ITU to greenlight censorship? How many are asking ITU permission before censoring their citizens' Internet access? Even a short list would be appreciated.
Most of our competitive nations--where citizens enjoy freedoms--already classify their broadband providers under the same rulesthat apply to the phone network.
Question 3: Have they all--from France to Sweden--engaged in censorship?
McDowell's story of ITU non-regulation is odd; it cobbles together things that are unrelated, while pretending they are. In the late 1990s, the ITU decided not to impose, on Internet backbone providers, the same accounting rate structure used by long distance phone companies when they pay one another for international calls. (This structure is largely lifted even for these calls today--despite ITU "jurisdiction"--because of US leadership.) The later fight at WSIS involved the Domain Name System, primarily country codes (like .us, .ca, and .cn but not .com), and the control the US government has over the Internet root nameservers--something that is unrelated both to settlement rates and to the FCC reclassification and open Internet policies. The open Internet policies aim neither to adopt the accounting rates nor to shift control of DNS.
Question 4: How are these related at all, except that in your mind they're "regulation"?
In fact, let me try to make this concrete, as Schrodingerwould.
Open Internet policies do not encourage censorship; they forbid both governmental and corporate censorship.
McDowell's argument is much like saying... in the late 1990s, we decided not to price-regulate the sale of cats around the world (a fact); if the US imposes anti-cruelty laws for the benefit of cats, having debated and considered the issue for several years, it would therefore "impose regulation" on cats, and all regulation is just another word for the fairness doctrine. Once we regulate cats, the rest of the world will feel free to regulate cats. They will pass pro-cruelty laws on them and torture them.
Question 5: Commissioner McDowell, why do you hate cats?
Finally, he suggests US rules to preserve an open Internet will undermine the State Department's efforts for global Internet freedom. I doubt senior State Department officials believe that. They have suggested that endorsing corporate censorship at home--by not adopting net neutrality rules--would embolden censors abroad.
Question 6: Commissioner, have you spoken to Secretary Clinton or her top advisors on the issue, and does the Secretary agree with you? When else are you authorized to speak for the Secretary?
Finally, McDowell's reference to a "four-decade bipartisan and international consensus to insulate computer-oriented communications from phone regulation" is hogwash. Until 2005, in the US, DSL networks were subject to the rules traditionally applying to networks, here and abroad; before 2002, so were some cable networks, based on judicial opinions. By "reclassifying" broadband communications, we are merely going back to that logical statutory framework. Posted
by Marvin Ammori [link]