Of Net Neutrality and Liberty 2

There is a better way to protect the Internet than net neutrality.

Anyone who reads Scragged has doubtless observed that the major search engines and social media sites somehow seem to promote leftist, Democrat, and politically-correct sites far more often than their counterparts on the other side.  In the second article in this series, we discussed abundant proofs of bias both intentional and semi-accidental and talked about the principles underlying regulation of private businesses.

Most conservatives and libertarians believe that private individuals and private businesses should be free to make their own choices without government interference, and in general we agree.  However, there are some very important and relevant exceptions; let's take a look at them.

A Bit of History

So far, we've only briefly mentioned the differences between Title I and Title II of the Communications Act of 1934 and how they affect the Internet.  The Internet started as "information services" which are regulated lightly under Title I.  With the rise of Netflix and YouTube, the video giants understandably did not want to pay speedup premiums for the billions of hours of video traffic they generate; they wanted their traffic carried for free just like the tiddling text traffic volume Scragged articles generate.

After much lobbying, the FCC created a "net neutrality" rule.  One of the carriers understandably wanted to charge Netflix and YouTube a premium for faster service given their huge volume, and sued.  The courts ruled that Title I did not permit the FCC to control Internet pricing to the extent needed to require net neutrality.

Months of lobbying later, Mr. Obama directed the FCC to move the Internet under Title II where it could be regulated more tightly and directed that "net neutrality" rules be written.  This part of the law, however, also gave the government the power to control which services could be offered and what prices would be charged so that President Hillary could have shut down her political opponents at will.

Most everybody knows about the "great Firewall of China" by which the Chinese government shields Chinese citizens from views the government dislikes.  Switching the Internet to Title II would have made it legally possible to impose the same sorts of restriction in the US.

Mr. Obama isn't the only western politician to want to suppress the Internet.  Reuters reports that Mr. Macron, the President of France, has dismissed public concerns over his proposed "fake news" law.

Macron, a target of fake news and of a major data hack during his run for the presidency last year, announced plans last week to give judges powers to delete some content from the Internet, close a user's account, or block access to a website during election campaigns. ...

The plans also include giving French media regulator CSA new powers to remove broadcasters' rights to air content in France if it is deemed to be fake news.

Mr. Macron said that "judges, not the government" would decide what is fake news and what to ban from the Internet.  Pondering the far-left record of California's 9th Circuit, where most major tech firms reside, means that we would feel no comfort from this fine distinction if America were to follow his example.

What's more, Mr. Macron wants government employees to be able to delete content and shut down broadcasters at will, but he's sadly underestimating the magnitude of the job.  Facebook has 10,000 employees whose sole job is looking at posts which the computer algorithms think might be unacceptable and deciding whether they should be blocked or not - yet only a fraction of such posts ever get looked at because they number in the billions.

Is Mr. Macron going to hire 10,000 judges to make this sort of determination?  Or will they ban first and let the victim sue, only to be given a court date 10 or 20 years from now when it won't matter anymore?

Citizens United

That sort of restriction led to the Citizens United Supreme Court decision in the US.  Citizens United was a citizen-funded group which wanted to broadcast a documentary that showed Hillary in an unfavorable light.  The Federal Election Commission said that the broadcast was too close to the election and they couldn't show their video.  The broadcasters didn't want to annoy the government and refused to take their money.

All election laws are written by incumbents for the purpose of making it harder for newcomers to challenge them; when the FEC blocked the anti-Hillary video, it was fulfilling the purpose for which it had been created.  Citizens United sued and the Supreme Court ruled that any business, corporation, group, or affiliation, had First Amendment rights and could broadcast at any time.

France has no First Amendment, so there is not much of an obstacle to the French government wanting to control what may be put on the Internet.  Fortunately, we do - for now.

We're glad that the FCC took the Internet away from Title II and put it back under Title I, but any subsequent power-mad Democrat could reverse that decision.  We really do need black-letter legislation to clarify the relationship between our First Amendment free-speech rights and government's legitimate interest in maintaining order and keeping teenagers from "building a bomb in the kitchen of your mom."

We don't want the government regulating the Internet, but it's clear that letting Google, Twitter, Facebook et. al. restrict our freedom of speech is worse than even government regulation.  At least we have the occasional ability to vote would-be government tyrants out of office; who has the power to get rid of Mark Zuckerberg?

Where Should We Go?

As we discussed in the previous article in this series, between them, Facebook and Google  collect roughly half of all Internet advertising revenue and can destroy businesses whose services or ideas it dislikes by refusing to carry their advertising.  Are Twitter, Facebook, Google, and YouTube common carriers like the telephone company which has an obligation to carry any traffic anyone requests?  Or are they private businesses with a total right to block traffic on any basis that appeals to their management, including suspending President Trump's Twitter account?

Are the largest Internet companies common carriers in a different sense?  Should Amazon, which dominates e-commerce and gets more than 70% of all product search traffic, be required to list any firm's products on its catalog pages and make sure that they can be found?

What if Amazon displays its favored products above the products it would rather not carry?  Is that OK?  Position in search results matters a lot.  Very few people go beyond the first page of results and few look beyond the first one or two, particularly on small-screen smart phones where most shopping searches originate these days.  If Amazon puts products it doesn't favor below number 3 or 4, they might as well not be listed at all.

The European Union has accused Google of tweaking its search software to display its own services before similar services offered by European competitors.  Does the EU have a legitimate point, or are they merely trying to use the power of government against an efficient American company which has out-competed European search firms?  If the government wants to specify the order in which Google displays search results, exactly how are they going to do that?  Will government employees take over maintenance of Google's page ranking algorithm?  Who will large businesses have to bribe to ensure that their products rank high in searches?  Paying bribes to government officials might be simpler than trying to game Google's page rank algorithm.

Google gives the Android cell phone operating system away for free, but all installations have to include the Chrome browser so that Google can install software updates and bug fixes.  Is that an abuse of a monopoly position?  Google permits users to install other browsers on Android systems and allows carriers and vendors to install their own preferred browsers.  Is this enough support for Google competitors, or should the government impose other restrictions?  Does the concept of monopoly apply to something that's given away for free?

Are these Internet companies so big that they've become de facto monopolies?  Decades ago, President Roosevelt's "trust busters" broke up Mr. Rockefeller's Standard Oil; it has taken Exxon years to put most of the pieces back together.  Much later, the federal government destroyed the AT&T monopoly, splitting it up into regional "Baby Bells" and giving a much smaller AT&T the right to offer long-distance services.

The resulting competition reduced the cost of telephone calls to the point that most cell phone plans include unlimited talking and messaging.  We can call Japan for lower charges per minute than we paid for local calls years ago.  Can anyone imagine the old-time monopolistic AT&T dropping prices that much?

We're spoken favorably of Sen. Bernie Sanders' proposals to break up our large banks.  The few banks which are large enough to cope with the onerous regulations of Dodd-Frank are becoming oligopolies as their mid-size competitors either merge or go out of business.

The same effect is happening in the Internet.  Instead of developing virtual reality itself, Facebook bought Oculus Rift.  Would society have been better off if Oculus had grown into a powerhouse without being swallowed by Facebook?  What about all the other businesses which Facebook, Microsoft, and Google have bought?

Should these giant businesses be permitted to get even bigger?  Should the be broken up like Standard Oil and AT&T?  Should, for example, YouTube be forcibly split off from Google and Oculus Rift from Facebook?

A fundamental truth hiding behind the same-sex-marriage cake disputes is that the same-sex couple had only to walk down the street to buy a cake from a willing vendor.  There was no logical, practical reason beyond exercising pure political power to force religious bakers or wedding venues to violate their consciences.

But if there was one enormous monopoly U.S. Wedding Cakes, Inc., and no other available vendor, the same-sex-marriage folks would have a valid point.  And that's the position conservatives are finding themselves in with today's Internet monopolies.

Time to break out Teddy Roosevelt's big stick and go busting up some trusts!

Nobody knows what we should do, but there sure are a lot of vehement, albeit ill-informed, opinions out there.  What's needed is a national discussion and rational debate.  Let's see if we can start that here!

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

The Atlantic discussing Facebook's moderation policies:


“Content reviewers tend to be hired for their language expertise, and they don’t tend to come with any predetermined subject-matter expertise. Mostly they are hired, they come in, and they learn all of the Facebook policies, and then over time, they develop an expertise in one area,” she said. “The review team is structured in such a way that we can provide 24/7 coverage around the globe. That means that we often are trying to hire a Burmese speaker in Dublin, or come up with other ways of staffing languages so that the content can be reviewed or responded to within 24 hours. That’s our goal. We don’t always hit it.”

February 7, 2018 10:09 PM
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