Of Net Neutrality and Liberty 1

Freedom on the Internet doesn't always mean no regulations.

We recently explored the controversy over what has come to be called "net neutrality."  Many commentators claimed that the FCC's proposed change to the rules governing the Internet would destroy the Internet as we know it.  As we saw it, instead of destroying the Internet, the change instead took us back to the lightly-regulated time when the Internet was able to grow exponentially, as opposed to being more heavily regulated like nearly everything else in this country today.

Let's be clear: we do need regulations in order for our complex advanced society to function well.  In June of 1969, the Cuyahoga River in Cleveland, Ohio caught fire because it was carrying so much flammable pollution.  Unlike previous fires, this fire went viral, inspiring the Clean Water Act of 1972; it hasn't caught fire since, which we can all agree is a Good Thing.

It's interesting, though, that the picture which stirred up the desire to pass new laws wasn't taken during the 1969 fire.  The river had caught fire many times before, and the picture that roused such passions was taken during an earlier fire in 1952.  No picture of the 1969 fire is known to exist; it probably wasn't worth photographing.  Was publicizing the 1952 picture as if it showed the more recent fire an example of "fake news"?

Similarly, at the time the Food and Drug administration was created on June 30, 1906, unscrupulous peddlers sold "medicines" which often did more harm than good.  It's hard to argue that cleaning up waterways through regulation or keeping harmful medicines off the market is a bad idea.

Unfortunately, being populated exclusively by human beings, our regulatory agencies are subject to the permanent fixations of all bureaucracies:

  • Less work to do this year.
  • More money to spend next year.
  • A comfortable retirement as young as possible.

These imperatives are found across all bureaucracies regardless of race, creed, color, national origin, or the public purpose for which the agency was founded.  Businesses go bankrupt when they get too far out of touch with their customers, but nobody has come up with a method of ensuring that a government bureaucracy actually serves the purpose for which it was intended.

The closest anyone has come was Confucius' recommendation that the emperor find ineffective and corrupt bureaucrats and chop their heads off to encourage survivors to work honestly, but even so, Chinese governments tended to collapse due to excessive spending due to bureaucratic bloat every 350 years or so.

That being the case, regulations eventually go way beyond the point of diminishing returns and block innovations that would be helpful.  We've shown how the FDA got into a fight with the vitamin companies which resulted in the FDA being forbidden to regulate vitamins at all.  This is not the ideal outcome, but it's what happens when politics gets into the mix as it inevitably does.  It's arguably better than the alternative, in which FDA regulations would be so costly that vitamins, new ones anyway, would be basically impossible to market - so how would we ever discover new and useful nutrients that don't happen to be patentable?

What Regulation Does the Internet Need?

We sometimes hear arguments that the Internet should not be subject to regulations of any kind, but that is patently absurd.  The Internet cannot work at all unless every device attached to it follows the relevant technical standards extremely closely.  These standards are so mind-bogglingly complex that it's a miracle that the Internet does work at all.  These standards don't need a lot of politically-fraught discussion - a new protocol or box design or cabling method either works or it doesn't.

There is no such clear-cut "works / doesn't work" standard for evaluating product, service, or pricing standards.  We need to address government regulations that might be applied to businesses such as Facebook, Amazon, Google, Twitter, and the like which are unrelated to the basic technical requirements that can't be avoided.

This may be shocking to regular readers of this magazine, but much as we dislike the inevitable unanticipated effects of regulation, we're persuaded that these businesses need some sort of rules, and there is no organization with the democratic legitimacy to establish them and the power to enforce them other than our government, flawed as it is.

The most obvious regulation which is applied to Amazon and other e-commerce web sites is that the businesses cannot charge the customer's credit card until the goods actually ship.  This regulation was put in place very soon after e-commerce started for obvious reasons, but it was inherited from decades if not centuries of commercial law involving the remote sale of goods.  The presence of the Internet wasn't relevant to the fundamental issues involved - we simply applied regulatory principles that have been worked out and agreed to over a vast period of time.

Another regulation forbade states from collecting sales taxes on Internet sales unless the vendor had a "physical presence" in the state.  The rationale was that there were so many different taxing jurisdictions with such insanely complicated definitions of what was and was not taxable, and how much tax to apply to each item, that web merchants would have had no hope of being able to comply.  Similarly, this regulation originated long before the Internet was invented and was applied to mail-order catalog companies which are, in principle, the same thing even though the technology is different.

As we see it, out-of-state merchants derive no benefit from the services supposedly rendered by the state governments.  The delivery services which use the roads in the state benefit from them, but delivery companies like FedEx and UPS, being based in the various states, most assuredly do pay state taxes which cover the cost of wear and tear on the roads.  The same is true of purely digital goods - your local Internet-service provider that provides your Internet access charges state taxes, but there's no reason for the online vendor to have to deal with your state when they are in a different one.

The local communications and transport taxes are all that should properly be due to the local state if the selling company has no presence there.  Today that's less relevant as Amazon has offices in nearly every state and the vast resources necessary to comply with every regulation everywhere, but for smaller firms, the problem of complying with sales tax rules is still a major concern.  Fighting against state efforts to impose universal taxation is a proper role of the federal government, in its Constitutional duty to regulate interstate commerce.

The Evil That Men Do...

The most disturbing regulatory problem is illustrated by a number of cases where, we believe, the larger Internet companies are abusing their positions of market dominance.


The Wall Street Journal reports that Prager University has sued YouTube for blocking access to some of Prager's conservative videos.  Prager's complaint

...says YouTube's more than 30 million visitors a day make the site so elemental to free speech in the digital age that it should be treated as a public forum.  The suit argues the site must use the "laws governing free speech," not its own discretion, to make decisions about what to censor. ...

Since last year, more than three dozen PragerU videos-on subjects including the Korean War and Israel and Palestine-have been restricted by YouTube.  As a result, those who use YouTube in "restricted mode," including students at some universities and children whose parents have put parental control filters in place, are prevented from seeing the videos; all potential ad revenue from the videos is also cut off[emphasis added]

As usual, money cuts to the heart of the matter.  YouTube displays advertising when people look at videos and whomever owns the video gets a cut of the revenue.  This isn't insignificant - one 6-year-old makes millions of dollars because people enjoy watching him play with toys.  By cutting PragerU off from searches and denying them revenue when people do find their films, YouTube is taking money away from Prager, which makes it harder for them to fund their films and express their viewpoint.  Those of us who understand the total liberalism of those who work at YouTube suspect that stopping the spread of conservative ideas is the goal.

The lawsuit lists videos on similar subjects by other content creators - including Al Jazeera and The Daily Show - which weren't restricted, and argues that PragerU was targeted solely for its conservative views.

"Google/YouTube uses their restricted mode filtering not to protect younger or sensitive viewers from 'inappropriate' video content, but as a political gag mechanism to silence PragerU," the complaint says.

Mr. Trump also suffers from this form of liberal censorship.  Wonder of wonders, a New York Times columnist had kind words for Mr. Trump:

... people who go into the White House to have a meeting with President Trump usually leave pleasantly surprised. They find that Trump is not the raving madman they expected from his tweetstorms or the media coverage. They generally say that he is affable, if repetitive. He runs a normal, good meeting and seems well-informed enough to get by.

Wow.  That certainly contradicts the leftist narrative which describes Mr. Trump as an inarticulate fool who's close to insane.  The anti-Trump crowd couldn't do much about the column in the Times, but YouTube seems bound and determined to suppress any video that contradicts their preferred anti-Trump messages.

We stumbled across a news article which goes into even more detail about Mr. Trump's positive characteristics:

Taylor Funk and his dad, Fred, played 18 holes of golf with President Donald Trump at Trump International Golf Club in West Palm Beach, Florida. Funk documented the whole thing in a YouTube video he posted Tuesday, which has since been deleted but can be seen below.

... "He's an amazing guy. Very engaging, very thoughtful. Asked a lot of questions, wanted to know how he could be a better golfer, better president. He gave us insights on business and life and the world. It was just an amazing time and an experience we'll never forget."  [emphasis added]

It's interesting to contrast President Trump's game - "He shot 36 on the front 9!" - with President Clinton's well-known habit of cheating at golf.

Golf is an ancient and honorable game which, like tennis, is based on the assumption that players have enough character and respect for the game that they won't cheat.  President Clinton dishonored the game; Mr. Trump's style is reportedly quite different - or would be reported, if YouTube hadn't pulled the video.

It's no surprise that YouTube liberals would bury any video which presented Mr. Trump in a favorable light.  YouTube doesn't comment on their reasoning so we don't know whether this tribute to Mr. Trump was labeled "hate speech" or was simply news that they didn't consider fit to print.  Either way, this is censorship pure and simple and you'll have to follow the link above to see the film of Mr. Trump's golf swing.


Twitter offers a service where people pay Twitter to help them increase their Twitter following.  We have a right-ish friend who paid Twitter to help grow his audience to about 30,000 followers.  Twitter followings are valued at about $3 per follower, so by current market value, our friend's network was worth about $90,000.  Then with no explanation, Twitter suspended his account, after letting him pay them to grow it.

As a fiscal and regulatory conservative, our friend is reluctant to sue because he believes that Twitter, as a private organization, has the right to choose its customers just as people who bake cakes have the right to choose their customers.  Since he paid Twitter for a service only to find Twitter arbitrarily destroying the value of what he had purchased from them, however, he might decide to sue for fraud under commercial laws.

It's recently been shown that Twitter has an organized operation to, in effect, ban conservatives' political views secretly, subtly, and without appeal.  The link explains that Twitter uses "shadow banning" to "ban an entire way of talking."

Olinda Hassan, Policy Manager for Twitter Trust and Safety explains, "were trying to 'down rank'& shitty people to not show up," "were working [that] on right now"

Shadow banning means that Twitter shows all the tweets in the victim's page, but doesn't show them to everyone who follows the victim's tweets.  Twitter uses their vast collection of user data to show the tweet to some, but not all, of the victim's followers.  The goal is for the victim not to realize that the ban is in place.  Depending on how many followers actually get the tweet, it will seem that the victim's tweets aren't getting much or any traction.

That would be like the Post Office accepting your packet of bulk mail, reading it carefully, and selectively not delivering your message to any of your addressees whom they do not want you to influence.  Twitter's algorithms have enough data about individual users to do this effectively without human intervention.  They carefully send your tweets to followers who already agree with you or who will never accept anything you say while not sending your tweets to anyone whom they think you might be able to persuade.

Twitter apologists say that the Twitter employees' quotes have been misrepresented, but Twitter's past actions in censoring conservative users makes us take their apologia with a grain of salt.

The Wall Street Journal uses a blunt form of shadow banning to suppress subscribers whose comments they don't appreciate.  Comments show up in the victim's profile page as expected and are displayed if the victim reads the article, but they aren't shown to anyone else.

That would be like the Post Office accepting your packet of bulk mail, noting that you're on their block list, and not delivering your mail at all while telling you that it had been faithfully delivered.  Forbes bans commentors by repeatedly asking them to log into the site or to reload the page whenever they enter a comment.


Google + is less subtle than Twitter, Forbes, or the WSJ - banned users can't log in to the G+ site at all so there's no doubt whatsoever that they think you're a badnik.  Google tweaks their search algorithms to put conservative articles far, far down in the list or leave them out of Google's news feed entirely.

If users were paying for these services, they could bring complaints under commercial law, but since the services are free, it's not clear that there any legal remedies.

Is this how America is supposed to work?  Should we just sit down and accept this form of censorship when Twitter, Google, and Facebook posses such commanding market positions?

In the next article in this series, we'll try to answer this question.

Will Offensicht is a staff writer for Scragged.com and an internationally published author by a different name.  Read other Scragged.com articles by Will Offensicht or other articles on Business.
Reader Comments

I\t's worse than you say. The Guardian has been looking into You Tube's algorithm for deciding which videos to play for you.

https://www.theguardian.com/technology/2018/feb/02/how-youtubes-algorithm-distorts-truth?utm_source=digg&utm_medium=email says:

... it [the You Tube recommendation algorithm] has also become one of the most controversial. The algorithm has been found to be promoting conspiracy theories about the Las Vegas mass shooting and incentivising, through recommendations, a thriving subculture that targets children with disturbing content such as cartoons in which the British children's character Peppa Pig eats her father or drinks bleach.

Lewd and violent videos have been algorithmically served up to toddlers watching YouTube Kids, a dedicated app for children. One YouTube creator who was banned from making advertising revenues from his strange videos – which featured his children receiving flu shots, removing earwax, and crying over dead pets – told a reporter he had only been responding to the demands of Google's algorithm. "That's what got us out there and popular," he said. "We learned to fuel it and do whatever it took to please the algorithm."

February 3, 2018 10:37 AM

It is getting really messy. A California court ruled that Yelp cannot be forced to take down a negative review. The business sued and the court ordered the person who posted the negative review to take it down, but Yelp was not involved and did not have to take it down.

Yelp argued that although web publishers MAY moderate user-posted data, they are not required to do so.



July 4, 2018 11:49 AM

It is getting curioser and curioser as Alice put it. The Guardian claims that Facebook has said in California court that it is a publisher:


There should be consequences. If it's a publisher, it would no longer get a safe harbor protection against libelous messages its users post.

As a publisher, they are practicing systematic anti-conservative censorship. They take down conservative sites while leaving ISIS sites up.

This is perfectly OK if they are a publisher. If, OOH, they want the protections which they used to have as a common carrier, they then can't censor.

As I see it, if they're publishers, they are liable for libel. If they are common carriers, they can't censor. Facebook, Twitter, and the rest want it both ways - they want to be held harmless when their users post libelous material, AND they want the right to censor users on any basis they like.

July 4, 2018 2:47 PM
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