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Jack Balkin

Web Content Producers Favor Net Neutrality, Reject Regulation of Search Engines

in Broadband's Impact/FCC Workshops/Net Neutrality by

WASHINGTON, December 16, 2009 – Web content producers applauded the efforts of the Federal Communications Commission to turn Net neutrality principles into enforceable rules – but lawyers, academics and commissioners were divided on whether the agency should begin regulating the internet in the name of democracy and economic growth.

“The genius of the Internet is its openness, its dynamism and its availability to one and all,” said FCC Commissioner Michael Copps in his opening statements at a Tuesday afternoon workshop on “Democratic Engagement and the Open Internet.”

“History teaches us that when a company has the technical capacity and a financial incentive to interfere, there will be some bad apples who will,” Copps continued. “Given what’s at stake, we need hard and fast rules…to keep them from doing so.”

Commissioner Robert McDowell said that throughout 15 years of development of the private internet, a bipartisan government has allowed for the Internet to grow unfettered by government regulation.

McDowell noted that the Constitution is a check on the government’s ability to limit speech. When the government guesses wrong and imposes a regulatory regime based on unfounded fears about the future, a market failure might soon follow.

Stuart Benjamin, the FCC’s latest scholar in residence, moderated the panel. Benjamin is a noted First Amendment scholar from Duke Law School, where he also teaches telecommunications law.

He began the workshop with the statements of web content producers, bloggers and actors. John Moore, CEO of Rowdy Orbit IPTV, supported a clear alternative platform and unobstructed direct line to under-served and minority viewing audiences.

People of color can go online, control their own cost, and connect with like minded people to create content without going through the approval process with a corporate executive. Garlin Gilchrist, director of new media at the Center for Community Change, wanted to inspire others to build stronger communities and promote passion for technologies. A truly open internet will allow local non-profits to connect with donors in their area, and open internet allows for funding from more outlets, said Gilchrist.

Michelle Combs from the Christian Coalition of America said that she wanted to protect her ability to Tweet and send YouTube videos to her constituents during a political race or when an amendment comes up in Congress that her organization opposes.

Glenn Reynolds, founder of Instapundit.com, added that low barriers of entry have created an entirely new face of journalism and information-sharing. He cited how independent journalists are now able to provide live commentary from Iraq, when many small broadcasters cannot afford such a luxury.

Bob Corn-Revere, a partner at Davis Wright and Tremaine and a self proclaimed student of the First Amendment, agreed that content regulation might be threat to the open internet. He agreed with McDowell’s view that Net neutrality rules were not the answer.

Jack Balkin, from Yale Law School disagreed with Corn-Revere. Balkin said that the open internet is crucial to freedom of speech and democracy because it allows people to actively participate in decentralized innovation, form new digital networks, and allows for freedom from prior government constraints. People can reach all audiences and route around gatekeeper with great new tools and applications. Balkin finished, “the First Amendment protects speech, not business models.”

Andrew Schwartzman from the Media Access Project, followed up on Balkin’s comments by asking, “Whose First Amendment right are we talking about? … An internet service provider is not serving as a speaker while it is serving as a conduit.”

Benjamin then asked the panelists, how serious was the problem of providers blocking internet access, if all past instances of blocking have been cured by currently existing open internet principles?

Content producers seemed to agree that the real danger lies in the fact that it is not clear what gate keepers will try to block. Reynolds said that while providers might have a First Amendment right to speak, they do not have the right to be an avatar for the speech of their customers.

To Benjamin’s second point, that there would be no consumer pushback to network management if consumers didn’t discover anything wrong, Balkin said, “Much of the problem is what we do not know and what we cannot find.”

Added Schwartzman: transparency is very important when most Americans have a very limited choice of provider and a very high switching cost.

The last question from Benjamin and audience members asked whether it would also be necessary to regulate search engines as well as internet providers. Here a clear majority that believed that search engines are not carriers and therefore do not need to be regulated.

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