net neutrality

New Net Neutrality Order Is a Nadir for the First Amendment & Internet Freedom

censored press

If a court affirms the FCC’s ruling that broadband Internet service providers (ISPs) have no right to exercise editorial discretion over Internet transmissions on their networks, the First Amendment could not stop the government from censoring the transmissions of end users on ISP networks.

The First Amendment is premised on a simple idea: Ensuring mass media communications are free of government control is a “precondition to enlightened self-government and a necessary means to protect it.” Though this principle should be obvious, it has been lost in application to the Internet age. In its recent order adopting net neutrality rules and reclassifying Internet access as a common carrier service subject to telephone regulation (“Net Neutrality Order”), the Federal Communications Commission (FCC) concluded that Internet transmissions on networks operated by broadband Internet service providers are not entitled to protection from government control. According to the FCC, the transmission of Internet communications is not constitutionally protected speech, because it is not “inherently expressive.” The FCC relied on this conclusion to justify its decision to regulate the Internet as if it were a plain old telephone network that transmits only common carrier communications.

FCC Net Neutrality Ideology Out of Step with Internet Reality


“Today, we celebrate the first glorious anniversary of the Information Purification Directives. We have created, for the first time in all history, a garden of pure ideology—where each worker may bloom, secure from the pests purveying contradictory truths. Our Unification of Thoughts is more powerful a weapon than any fleet or army on earth. We are one people, with one will, one resolve, one cause. Our enemies shall talk themselves to death, and we will bury them with their own confusion. We shall prevail!” Apple advertisement, 1984.

There are now two Internets. The Internet envisioned by the ideology embodied in the FCC’s new net neutrality rules, and the Internet as it exists in reality. The “net neutral” Internet is “a garden of pure ideology” where content companies “are one people … with one cause” and network congestion is merely a figment of the imagination. The real Internet is different — congestion is commonplace and the interests of content owners are divergent.

Ayn Rand and the Nature of Net Neutrality (Among Other Things)


Most politically-minded people, from all corners of the spectrum, are familiar with Ayn Rand, particularly her magnum opus Atlas Shrugged, where society’s “producers” drop out and create a new society distinct from the machinations and manipulations of the “looters”. In fact, the Occupy Wall Street group, in some weird parody of Rand’s ideas, tried to do something similar, if almost exactly inverse, to what Rand’s Galt’s Gulch group managed to achieve. They failed in New York, however, because they forgot the most basic rule: you can’t be a looter and achieve success on your own. Looters and moochers must, by definition, take from others. Hence, Occupy Wall Street, a dirty collection of the most useless layabouts seeking an easy way to be subsidized in their effort, was an abject failure.

Mark Cuban, inarguably an entreprenurial producer of high caliber, surely knows this. And so it’s a little surprising he’s a little surprised that the effort to regulate the internet and socialize online interaction looks so remarkably like what he’s read in Rand’s novels. Because, as Robert Tracinski of The Federalist points out, Net Neutrality is just the latest in a long line of regulatory regimes that Rand predicted with almost scary accuracy lo these many years ago.

Today in Liberty: Email Scandals, Threats to Signature Legislation, and Netflix’s Discovery That Big Government Is No Friend


Plenty of red meat in the news these days, from Hillary Clinton’s homebrewed email server to the US Ambassador to South Korea getting slashed in the face. Taken individually, these stories are just a fun diversion as part of surprisingly full news cycle. Taken together, however, they represent a potential sea change in how government functions — and how citizens and voters are reacting to it. Not surprising that things are changing in the time of NSA data gathering, a newly confident Russia, and the (continued) rise of the brutal Islamic State. So here’s a rundown for those seeking the little glimmers of liberty buried under the chaos.

CPAC happened last week and there was an air of excitement and momentum surrounding the incredibly deep GOP field leading into 2016’s presidential election. Scott Walker has ramped up his game and Jeb Bush tried to make the case that he’s not just the guy the Democrats would love to see make a run. And Rand Paul, as he usually does, won the straw poll largely due to the contingent of young voters who attend the annual gathering. A really great thing in fact because it means the millenials may actually be migrating to the right at a greater clip than anyone knew. But while Rand won the youth, social media and news data says that Scott Walker’s the one to watch…for now:

Congressional Investigation of FCC Spells Trouble for Net Neutrality

neuter the net

Did the FCC chairman change his mind about Title II on his own, or did he capitulate to White House demands to avoid the disgrace of losing his chairmanship? A shocking investigative report by The Wall Street Journal suggests its the latter, and has prompted a pivotal Congressional investigation.

On Friday, the House Oversight and Government Reform Committee initiated an investigation of the Federal Communications Commission (FCC) to determine whether the views expressed by the White House potentially had an improper influence on the development of draft net neutrality rules. A letter from the Committee’s Chairman, Rep. Jason Chaffetz, to FCC Chairman Tom Wheeler raised concerns about the independence of the agency based on a shocking investigative report by The Wall Street Journal.

The report indicates that the Imperial President improperly influenced Chairman Wheeler’s decision on net neutrality. If that proves to be true, it would provide a reviewing court with grounds to overturn the FCC’s decision as arbitrary and capricious. See DCP Farms v. Neuter, 957 F.2d 1183 (5th Cir. 1992).

Who Will Control the Internet?

The news, detailed in excellent fashion yesterday by Jason Pye in this space, that around 5 pm Friday — after many on the Hill had left their offices — the Obama administration formally relinquished involvement/control over the internet to the Internet Corporation for Assigned Names and Numbers, or ICANN, was met with what has become a trademark in analysis of this current executive office: confusion.

Why would this administration quietly make a move like this now when — despite the loud and dire warnings of net neutrality enthusiasts — the internet is working pretty well by most standards of measurement (i.e. is free and open, relatively cheap, easily accessible, and rarely plagued by massive outages)?

Admittedly, ICANN has been a huge player in managing Internet architecture since it was created in 1998 as something like a quasi-governmental non-profit that would take control of the technical maintenance of root servers as well as managing all the unique identifiers associated with surfing the web — IP addresses, domain names, registries and the like. So it’s not like government is handing control over as much as they’re just stepping back and letting ICANN assume all responsibility when the contract expires with the group in 2015. Isn’t less government involvement in the business of the internet desirable?

Net Neutrality Opinion Indicates Internet Service Providers Are Entitled to First Amendment Protection

Verizon v. FCC, the court decision overturning the Federal Communications Commission’s (FCC) net neutrality rules, didn’t rule directly on the First Amendment issues. It did, however, reject the reasoning of net neutrality advocates who claim Internet service providers (ISPs) are not entitled to freedom of speech.

The court recognized that, in terms of the functionality that it offers consumers and the economic relationships among industry participants, the Internet is as similar to analog cable networks as it is to analog telephone networks. As a result, the court considered most of the issues in the net neutrality case to be “indistinguishable” from those addressed in Midwest Video II, a seminal case addressing the FCC’s authority over cable systems. The court’s emphasis on the substantive similarities between analog cable services, which are clearly entitled to First Amendment protection, indicates that ISPs are likewise entitled to protection.

Net neutrality advocates argued that ISPs are not First Amendment “speakers” because ISPs do not exercise editorial discretion over Internet content. In essence, these advocates argued that ISPs forfeited their First Amendment rights as a result of their “actual conduct” in the marketplace.

What Syria Can Teach About Net Neutrality

Internet killswitch

There is a focus, and rightly so, on what the U.S. reaction to the crises in Syria will be — if anything — from the perspective of how strong the United States looks on the world stage, and what that means as regards our relationships with long-standing allies. These are important considerations.

But Syria may have something else to teach us that is just as timely and relevant as the ubiquitous relevance of international relationships and war games. The country, along with the other hotbed of unrest Egypt, is the Petri dish of the Internet “killswitch.” (Read: what happens when the government controls access to the Internet and decides a population has had enough of communication and information gathering. Yeah. Scary.)

Mashable reports:

The Internet is a decentralized global network, designed to be resilient and hard to take down. But it’s still possible to black out a certain area, or even an entire country, disconnecting it from the rest of the world.

That’s what happened in Egypt in 2011 and three times in Syria in just the last year…does Syrian President Bashar al-Assad’s regime have stronghold over the country’s Internet access? Most likely yes, according to experts.

Netflix Blocking Internet Access to HD Movies

At the Consumer Electronic Show two weeks ago, Netflix announced that it would block consumer access to high definition and 3D movies (HD) for customers of Internet service providers (ISPs) that Netflix disfavors. Netflix’s goal is to coerce ISPs into paying for a free Internet fast lane for Netflix content. If Netflix succeeds, it would harm Internet consumers and competition among video streaming providers. It would also fundamentally alter the economics and openness of the Internet, “where consumers make their own choices about what applications and services to use and are free to decide what content they want to access, create, or share with others.”

Ironically, Netflix’s strategy is a variant of the doomsday narrative spun by net neutrality activists over the last decade. Their narrative assumes ISPs will use their gatekeeper control to block their customers from accessing Internet content distributed by competitors. Of course, ISPs have never blocked consumer access to competitive Internet content. Now that the FCC has distorted the Internet marketplace through the adoption of asymmetric net neutrality rules, Netflix, the dominant streaming video provider, has decided to block consumer access to its content.

Explaining Net Neutrality: Is it a Fairness Doctrine for the Internet?

Net neutrality is one of the newest buzzwords around the internet and is starting to gain attention of many computer users.

So, what is net neutrality? Before I answer that question, we need to first understand how the process of getting online works. When you subscribe to a cable or DSL connection, most people believe that you are buying a direct connection to the internet. However, this is not true in that your provider serves as your go-between to all of the servers and bandwidth that makes that connection.  For that reason, your provider could (and does, to an extent) control what you can and cannot “see” and do on the internet because they have purchased and allocated bandwidth on your behalf.

Recently, various internet service providers such as Comcast and AT&T have started to suggest that they should begin to charge you for access to the most popular sites and services and this is where net neutrality comes into play. From your provider’s perspective, net neutrality is bad for business because they buy their bandwidth based on capacity–the more they need, the more it costs them.

Here’s an example: YouTube is by far the most popular site for watching and sharing videos. However, video on the internet requires a great deal of data to be transferred from one location to another. In response, the providers would like to start charging you for accessing those bandwidth heavy websites thereby reducing the load (and cost) of the bandwidth they provide and increasing their profits.

If these new fees were to be allowed under rules that could be proposed, issues of censorship arise where as a user you would be forced to pay for content you previously could access for free or lose access to that content.  In addition, your provider would have the power to cut off access to sites not deemed cost effective or for any reason they feel appropriate.

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