Commentary: Rights of Providers Shouldn't Outweigh Rights of Users

Editor’s Note: The following commentary is written by Andrew Feinberg, Deputy Editor, BroadbandCensus.com. The news operations of BroadbandCensus.com strive to produce accurate and objective reporting about the national broadband plan, the broadband stimulus, and wireless broadband.

We do run commentaries by outside individuals and entities. Please send them for consideration to commentary@broadbandcensus.com. In this piece, Andrew Feinberg offers his perspective on one of the big news items of the week. The opinions below do not express the company view of either Broadband Census News LLC, or of Broadband Census Data LLC. See below for more information about BroadbandCensus.com.

WASHINGTON, September 23, 2009 – Federal Communications Commission Chairman Julius Genachowski’s announcement of his intention to codify the commission’s 2005 Internet Policy Statement into actual, enforceable federal regulations using a valid legal process drew expected reactions from the usual parties.

Everybody in this debate means well. I will not suggest evil motives on anyone’s part, because my observation as a journalist is that everyone involved in creating and sustaining today’s online ecosystem wants it to succeed.

But sometimes hyperbole can exceed the reality of the situation. Yesterday, Adam Thierer and Berin Szoka, two senior fellows at the Progress and Freedom Foundation for whom I have the utmost respect as scholars, and confidence in as sources, published a widely circulated op-ed entitled “The Day Internet Freedom Died.”

Thierer and Szoka open by harkening back to the days when the commercial internet was young. When we used dial-up, a single T1 line was considered a fast connection. Efforts to censor speech, impose taxes and regulate encryption tools as weapons were successfully countered by activism and smart legislating.

There was a time, not so long ago, when the term “Internet Freedom” actually meant what it implied: a cyberspace free from over-zealous legislators and bureaucrats. For a few brief, beautiful moments in the Internet’s history (from the mid-90s to the early 2000s), a majority of Netizens and cyber-policy pundits alike all rallied around the flag of “Hands Off the Net!” From censorship efforts, encryption controls, online taxes, privacy mandates and infrastructure regulations, there was a general consensus as to how much authority government should have over cyber-life and our cyber-liberties. Simply put, there was a “presumption of liberty” in all cyber-matters.

This is correct. But as someone who remembers many of those debates quite vividly, I feel the need to point out that those debates of years past have nothing to do with the current issue at hand. Those activism efforts were aimed at protecting individual liberties and intrusions upon individual rights. The “presumption of liberty” was nothing more than an extension of existing privacy principles combined with a “wait and see attitude” towards what was then a new and exciting technology in its commercial infancy.

Case in point: I remember when Yahoo! turned its’ front page black in protest over the Communications Decency Act. Yahoo! was the dominant search engine back then. Remember that? I accessed the page over a dial-up connection using a 28.8 Kilobits per second (Kbps) modem on a Intel Pentium-based PC running Slackware Linux. Now, that might be a bit too much geek-talk in a history lesson, but my point is that was a long time ago. Times have changed. Thierer and Szoka fear they have changed for the worst.

I know their position, and I understand their alarm. I don’t buy the arguments of many “network neutrality” groups that impugn the motivations of broadband providers – both wired and wireless – for managing their networks. But neither do I accept that the market will always create the right result.

What I haven’t heard anyone say is that the fight over these proposed regulations involves issues that are a far cry from the fights of the 1990s and early 2000s that protected the individual. They’re now arguing solely for the rights of the provider – not the rights of the user. Their impulse is to protect the conduct of the network operator – not the speech of the user.

Thierer and Szoka do have a legitimate fear in that an overly broad set of regulations would hamper innovation and “put the FCC in the driver’s seat for a host of Internet economic and social issues.”  They worry that “common carrier” principles will be applied without thought to broadband pipes, and that vague “public interest” requirements will be applied to those that provide them.

In a cut-and-paste scenario where old rules would be blindly shoehorned onto new technologies, they’d be right.

But though we may stand on the edge of a slippery slope, there’s some sand on the ice. We do have a rulemaking process that Chairman Genachowski has committed to. We will have the opportunity for public comment.

We should be worried. We should always be vigilant against overreaching regulation. But until we see what’s coming, we should wait, see, and discuss our options and compromises, rather than assume the worst and dig in for a firefight.

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