Is the FCC overregulating the Internet? Check out this introduction to an article by Larry Downes on Slate:
“Our modern information frontier... ‘the Internet’ has likewise resisted efforts from governments to impose their provincial laws, local regulations, and moral disapproval disguised as legislaion... Digital life has its own norms and values, enforced by efficient and effective engineering... Internet communities tend to invent their own ‘systems of administration.’" 1
In regards to bandwidth tiering, for example, does a self-governing Internet mean one that is left to the businesses that own the hardware and software to shape, according to their will? Self-governing by users or providers--content providers or service providers? Is the FCC raising legitimate concerns on behalf of users, or overregulating? There are multiple “Internet communities” to consider. Looking at the question I posted last time: Who has the authority to enact changes in this structure, or prevent them?
Larry Downes’ angle is not original. This is what I learned about the EFF in Who Controls The Internet?:
The Electronic Frontier Foundation is “an organization that--through political participation, litigation, education, seminars, and campaigns of various sorts--was devoted to developing the legal conception of cyberspace as a separate place, and to defending it from the intrusion of territorial government.”2
It was founded way back in 1990, and still active. Here is their website. I haven’t given them much time in their own regard yet, but I’ll come to that. The EFF won a battle in 1996 against the government attempting to regulate Internet activity (via the Communications Decency Act. It was overturned on the basis that it violated the 1st amendment). The Judge that made the ruling also made these statements:
“the Internet ‘constitutes a unique medium-known to its users as ‘cyberspace’-located in no particular geographical location but available to anyone, anywhere in the world.’ Stevens characterized cyberspace as containing ‘vast democratic fora,’ that have not ‘been subject to the type of government supervision and regulation that has attended the broadcast industry.’ He added that ‘no single organization controls any membership in the Web, nor is there any centralized point from which individual Websites or services can be blocked from the web.’”3
But our courts have long since grown out of this Libertarian conception of the Internet. Nation states have since demonstrated their ability to ground the web within their territories and, as Tim Wu and Jack Goldsmith assert in their book, “border” it in. They can do this by regulating the companies which own its hardware infrastructure, by enforcing the use of software filters at ISP “checkpoints,”4 and by holding international, web-based businesses to local laws. We have laws that we live under, and it has been ruled in courts that we have to abide by them on the web as well.5 Citizens in China are quite familiar with this idea, since they can indeed be tracked and arrested for breaking Chinese laws on the net (slandering the gov’t, for example). The US is significantly, radically different from China in that free speech is fiercely protected here. So we have been less aware, perhaps, of the gov’t overhead as we browse the web.
Is it a question of who HAS authority or who SHOULD have authority? Read this little Wiki nutshelling of a historical event: The US takeover of the DNS Root Authority
When Jon Postel split the root authority, he could convincingly argue that he believed he had the authority to do so. He had already formed the Generic Top-Level Domain Memorandum of Understanding (gTLD-MoU) to lift DNS responsibility beyond the American Government, and had gained international support and signatures, etc. But with this kind of direct action, it became obvious who really had ultimate authority and was ready to assert it. In 1998 the US government had given its word, under pressure, that it would give up root authority by 2006, but in 2005 changed its mind and declared that it would not transfer authority to “UN affiliated intergovernmental group.”6
So, is the question “who has authority” a philosophical questions? A practical question of who will actually win this fight? A question of who do I want to grant authority to?
Even if you are of the mind that the American government should not authority over the Internet, it is important to acknowledge the situation as it stands and the battles that have already been lost. I’m tired of blogs reacting to the FCC with indignance, as though no one would dare attempt to regulate their Internet. I do not, at this point, see that the U.S. government would be gaining any additional authority over the Internet with the FCC’s rules, but perhaps stating more clearly what authority it has already been acting under.
1 "Save the Internet By Doing Nothing" by Larry Downes, Slate Magazine, Jan. 28, 2011. < http://www.slate.com/id/2282638/ >
2 Jack Goldsmith, Tim Wu, Who Controls the Internet? Illusions of a Borderless World (New York: Oxford University Press, 2008)18.
3 21
4 93
5 1-10 The Yahoo case, 106-108 Napster case, 163-4 Alexy Ivanov case, etc.
6 171
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