Date:04/09/12

Why Net neutrality is incompatible with 'Internet freedom'

The FCC's Net neutrality rules violate the First Amendment, argues a free-market proponent, and are thus antithetical to "Internet freedom."

"Internet freedom" -- are ricocheting around cyberspace almost as fast as neutrons and protons bouncing around inside an atom's nucleus. Well, almost as fast.

 Both Republicans and Democrats -- and most everyone else -- proclaim to be in favor of Internet freedom. Here's a Fox News article, "The 2012 Political Tug of War for the Internet," that describes the political effort to capture the "Internet Freedom" flag. The article points out that the Republican Party platform has a plank expressly headed, "Protecting Internet Freedom," and the Democrats almost surely will follow suit next week. Indeed, the article quotes President Obama stating: "Internet freedom is something I know you all care passionately about; I do too."

 So, no worries? We're all for "Internet freedom" now?

 Not so quick.

 I am reminded of Abraham Lincoln's remark: "The world has never had a good definition of the word liberty. We all declare for liberty, but in using the same word we do not mean the same thing." Substitute "Internet freedom" for "liberty," and that's where we are today.

My own definition of "Internet freedom" is closer to what I think the Republicans have in mind -- though you're welcome to yours, of course.

The Republican platform declares:

The Internet has unleashed innovation, enabled growth, and inspired freedom more rapidly and extensively than any other technological advance in human history. Its independence is its power. The Internet offers a communications system uniquely free from government intervention.

And it also states that the current Administration, "through the FCC's net neutrality rule, is trying to micromanage telecom as if it were a railroad network."

To my mind, the idea that the Internet should be "uniquely free from government intervention" is fundamental to a proper understanding of "Internet freedom." Because net neutrality regulation necessarily involves government intervention, opposition to net neutrality regulation is central to a proper understanding of Internet freedom.

 There is a gulf separating the Democrats' and the Republicans' understanding of Internet freedom. And it essentially comes down to this: Net neutrality regulation is an essential element of Internet freedom for most Democrats. (Note I said "most" because there are certainly individual exceptions, including a number of Hill Democrats; I am referring here mainly to party positions.)

 Those favoring net neutrality claim to fear that, without government intervention, Internet service providers might "discriminate" among users or content providers or may block access to web sites. In this view, government must intervene to prevent such discrimination or blocking from occurring.

 Those opposing net neutrality fear that the greater threat to Internet freedom arises from giving the government the power -- or, more accurately, the government arrogating unto itself the power -- to determine whether private Internet providers are discriminating among users or content providers, or to force Internet providers to carry content they may prefer not to transmit. This fear is enhanced by the knowledge that net neutrality's "discrimination" prohibition is inherently vague, and, therefore, that the range of bureaucratic discretion is inherently large, if not unbounded.

This divergence is reflected, too, in different understandings of the First Amendment's role. For most who favor net neutrality regulation, including those FCC commissioners who voted for it, such regulation presents no First Amendment free speech problem. The pro-regulatory forces claim that net neutrality mandates are consistent with the First Amendment because the government is merely ensuring that private Internet providers do not interfere with the speech of users and content providers.

But for many of us who oppose the FCC's mandates to enforce "neutrality" on the Internet, this conception turns the First Amendment on its head. The First Amendment's free speech guarantee is intended to protect against government censorship of private party speech, not to authorize government regulation of the speech of private parties in the name of enforcing neutrality.

 The Free State Foundation, along with TechFreedom, the Competitive Enterprise Institute, and the Cato Institute, recently filed an amicus brief in the D.C. Circuit Court of
Appeals making just such an argument that the FCC's net neutrality regulations violate the First Amendment.

I understand that those who favor net neutrality regulation generally abandoned the "net neutrality" moniker a couple of years ago in favor of the "open Internet" label. And now they seek to claim "Internet freedom." But history teaches us that what matters much more than the label attached to actions are the actions themselves.

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