Several of the previous posts in my The Law of Social Media essay series focus on core legal issues, such as copyright in user-generated content and employer use of social media for HR decisions. This one is a bit different. Like John Naisbitt, it describes what I am convinced are the most significant law/policy “megatrends” affecting the social media space today.
As an overview, consider the following scenario—and click for a larger image:
As the graphic indicates, the reality is that disruptive technologies quickly and visibly invite governmental regulation. That’s because change creates business and policy risks, which threaten legacy products and powerful business incumbents, and in turn which cause political pressures to protect established constituencies. Since social media is most assuredly a disruptive force, this circular pattern will likely manifest itself — in fact, as I discuss below it already has — in public policies towards social media and social networking communications.
1. Censorship & Filtering
Governments absolutely hate “unfiltered” social media and will move to censor and control it.
In the East, the basis for such censorship is political and religious oppression, as in Iran, North Korea, China, etc. In the West, the more unlikely culprit has been intellectual property (e.g., music and movie copyrights) and obscenity, as in Australia, France and New Zealand’s efforts to install country-wide porn filters and institute a “the strikes” rule against P2P file sharing. And everywhere, government mourns the loss of the historic financial and advertising basis for traditional media like newspapers and broadcast television, proposing to bail out or subsidize the latter in order to prevent social media from achieving dominance at the expense of last century’s communications technologies. Censorship is far from dead on the Web; in fact, it’s really only beginning.
2. Privacy
The EU’s strict data protection (privacy) regime will spread and overtake the US opt-out approach.
Most everyone knows that the European Union has a highly protective scheme of individual privacy in the digital age. Fewer understand that in the United States, with the exception of specially regulated industries like health care and financial services, the only privacy protections available are basically those the Constitution provides as against the government. That will change, however. The EU is too large a market for businesses to overlook, commerce today is fully globalized and while the United States remains the least privacy-centric of any major industrialized nation, that is changing as legislators and regulators more often choose an opt-in requirement for newer, albeit still infrequent, electronic privacy measures.
3. Criminal Law
Cyber offenses will (finally) be created.
In the past, criminal violations involving the Internet and online activities have largely focused on corporate interests, like the Anti-Cybersquatting, CFAA and CAN-SPAM Acts. But the current proliferation of pedophilia, cyber-bullling, stalking and other socially offensive digital-centric conduct is different. Many times, existing criminal laws — for instance, of assault — are not broad enough to cover online conduct. Other time, prosecutors are reluctant to indict and juries even more reluctant to convict. Yet the US congressional approach to indecency on the Web has for more than a decade been to attempt to ban conduct deemed seedy, whether pornography or gambling, to avoid having the “new” media infected with perceived old evils, for instance the Communications Decency Act of 1996. As a result, there is a good chance, well above 50% in my estimation, that the next several years will bring a proliferation of state and federal laws making criminally unlawful specific forms of online activity deemed socially deviant or harmful.
4. Anonymity
Anonymity on the Internet is under assault and may be lost.
A timely prediction, given that just yesterday two different courts compelled the unmasking of anonymous commenters in civil pretrial discovery—when the posters were not even parties to the cases. Ninth Circuit Upholds Unmasking of Online Anonymous Speakers and Illinois Appellate Court Unmasks Anonymous Commenters. There are a variety of reasons, but the principal one is that by defeating anonymity, politicians can be seen as “protecting” the victims of Web-based schemes, involving both antisocial (i.e., bullying, extortion, etc.) and anti-consumer (i.e., stock pump-and-dump chats, etc.) behavior, which sometimes end quite tragically, as in teenage suicides. This is reinforced by the continuing efforts of copyright holders (music, photos, video, news) to require ISPs to disgorge the identities of infringing users and by the FTC’s sponsored blogging “guidelines,” which support the theme of transparency from a consumer protection perspective. Almost alone among nations, only America has a Tom Paine and Federalist Papers/Primary Colors tradition of anonymous or pseudonymic political speech, yet even here — unless the Supreme Court intervenes — short-term passions, politics and national security phobias almost always trump free speech. The old proverb was that “No one knows if you are a dog on the Internet.” Don’t plan on barking much longer!
5. Competition
Competition and antitrust laws will reshape social media providers.
My core training is in antitrust law, although this megatrend has little to do with yours truly. Instead, it stems from the reality that Facebook, Apple and Google, among others, are already facing competition law investigations in the advertising, mobility, search and handset markets. From an economic perspective, there are very strong, positive network effects in social media, far greater than were true in the 1990s for Microsoft’s WIndows OS. As a consequence, viral expansion leads to small social media companies getting VERY big VERY fast: witness Facebook’s 500 million users and Twitter’s phenomenal hockey-stick growth curve. It is difficult for entrepreneurs to shake the old underdog mentality even when their companies become big enough that market power makes their business practices and acquisitions suspect, as Mark Zuckerberg is now learning to his chagrin. And when fueled by financial underwriting from legacy competitors — the dark political underbelly of Washington, DC and Brussels, Belgium antitrust battles — the “nascent” stucture of social media and wireless markets has, to date, not proven sufficient to keep the mitts of antitrusters from the US Department of Justice and the EU’s Competition Directorate from meddling—e.g., Google/Yahoo (2008-09) and Oracle/Sun (2009-10), to name a couple of examples.
6. Location
Location-bsed services will spawn a host of new policy battles.
“Location, location, locations” is not just a real estate slogan, it’s the cross-hairs for a number of policy trends affecting social media. The indicia are not found not just in the geometrically increasing popularity of geo-tagged photos, location check-in apps and games, and the like, but as well and perhaps more importantly in the fact that as wireless communications and data come to dominate telecom — a direct consequence of social networking — regulatory oversight follows almost automatically. ”Nomadic” services like VoIP and video chart (e.g., FaceTime), in contrast, present an equally great threat to the established order by making location a matter of indifference. At bottom, this is an industry where eyeballs and advertising dollars still rule. So as marketers devise ever-clever ways to monetize users’ location (including the launch this week of my client shopkick’s location marketing app) all of the bad stuff that can happen online is bound, eventually, to arise with respect to location-based services. LBS isn’t bad; some people are bad. Unfortunately for the FourSquares and Gowallas of the social media world, that has never been enough in most societies to stop gun control—and it won’t be enough to arrest the coming push for consumer protection and marketing regulation in the location services space.
Note: I first used the “megatrends” metaphor while presenting at the 140 Characters Conference-DC (#140onf-dc) in June 2010, and am indebted to organizer Jeff Pulver for serving as my muse for these thoughts. Thanks, Jeff!
The outcry over federal judge Vaughn Walker’s decision overturning California’s Proposition 8 — which declared same-sex marriages unlawful — is hardly atypical where the Constitution is concerned. Why should a single judge, or nine (Supreme Court) judges, have the power to override the legitimate majority vote of citizens in a democracy?
The answer is that this is how it has always been in America. The constitutional checks and balances established by the Founding Fathers were intended to make the United States a republic; a political union in which the rights of those who are NOT in the majority are protected. That is why the Bill of Rights was added almost immediately after ratification of the Constitution. That is why the First Amendment protects the “free exercise” of religion from government control. Because in America, civil rights include the right not to be oppressed by the majority when essential liberties are concerned.
This is exactly how our constitutional democracy is supposed to work. Don’t blame federal judges for doing their jobs. The concept of judicial review has been at the core of our checks-and-balances democracy since the landmark Marbury vs. Madison ruling in 1803.
One can disagree with whether morality is a valid basis for legislation outlawing certain behavior. Constitutional law is split, with some decisions, like the 2003 case in which the Supreme Court overturned criminalization of consensual sodomy, indicating that moral values cannot trump individual rights. That rationale, of course, could also be extended to a variety of issues — from abortion to alcohol to public sex or nudity — in which only the sensibilities of others are affected.
The difference here is that, under the law as it stands now, legislation must have a secular purpose to survive constitutional challenge. The proponents of Prop 8 argued only that the initiative was intended to further society’s interest in procreation, that is child-bearing. But if that were the case, Judge Walker cogently explained, then fertility should be a precondition to traditional marriage, and couples unable to conceive or not wanting children would be barred from marrying. Not so long ago, interracial marriages were also unlawful. The outcry against the 1967 Supreme Court decision striking down such laws subsided rather quickly, and in my view that’s a good thing.
As if to prove Walker’s point, Los Angeles Cardinal Roger Mahony released a statement on Wednesday that said, “Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that marriage was instituted by God for the specific purpose of carrying out God’s plan for the world and human society. Period.”
200 years ago slavery was accepted and written into the Constitution. The Fourteenth Amendment changed all that after the Dred Scottdecision declared that slaves were property and not citizens. It took a long and brutal civil war to make the leap, but America was and is better off. Whether or not you agree that gay marriage should be constitutionally protected, the system of judicial review is quintessentially American and something to be celebrated.
I’ve written about the legal problems associated with online social media accounts after a subscriber’s death. This is a way cool start-up idea that, at first blush, seems to solve then like an “advance medical directive” does for the dying
It is completely beyond my why the Obama Administration and congressional Democrats could be this obtuse. No one should want — and I doubt any American really does support — the government standardizing serving sizes and recipe compositions, even on health grounds.
Remarkably, Section 4205 of the new health reform law, which requires chain restaurants and vending machines to provide nutrition notices, instructs the HHS Secretary to:
Consider standardization of recipes and methods of preparation, in reasonable variation in serving size and formula of menu items, space on menus and menu boards, inadvertent human error, training of food service workers, variations in ingredients…
You’ve heard the phrase “buried in the bill,” of course. Section 4205 of the “Patient Protection and Affordable Care Act,” the health care reform bill President Obama signed on March 23, 2010 is contained on pages 1206-14 of a 2407 page bill. It could hardly be more buried than that.
And so, America has gone from “Cheeseburger in Paradise” to “I Can Has Cheeseburger” to self-proclaimed “reformer” rants against Five Guys burgers as Xtreme Eating. What a country! It’s all well and good that Ms. Obama’s pet issue is childhood obesity, but outlawing fatty and big meals will, like illegal drugs, just make them more desirable. So this proposal for more government will inevitably backfire, as well as being totally repulsive from a civil liberties standpoint.
This is an ongoing issue with the American judiciary system. Judges are by institution isolated and by tradition older than the general population. Increasingly, however, they are called upon to rule on technologies with which they have no experience at all.
It does’t look like we’ll be seeing much Tweeting-from-the-bench on the Supreme Court any time soon, but the Hillicon Valley blog highlights an amusing moment at a recent House Judiciary subcommittee meeting, attended by two Supreme Court Justices — Antonin Scalia and Stephen Breyer in which they’re asked if they plan on using Twitter any time soon. Scalia says he doesn’t even know anything about it — and notes that his wife refers to him as “Mr. Clueless.” Reassuring to know that of a Supreme Court Justice. Breyer, however, seems to indicate a realization that Twitter, as a communication platform, really could be quite powerful.
Subcommittee Chair Steve Cohen: Have either of y’all ever consider tweeting or twitting?
Justice Scalia: I don’t even know what it is. To tell you the truth, I have heard it talked about. But, you know, my wife calls me Mr. Clueless — I don’t know about tweeting.
Justice Breyer: Well, I have no personal experience with that. I don’t even know how it works. But, remember when we had that disturbance in Iran? My son said, ‘Go look at this.’ And oh, my goodness. I mean, there were some Twitters, I called them, there were people there with photographs as it went on. And I sat there for two hours absolutely hypnotized. And I thought, ‘My goodness, this is now, for better or for worse, I think maybe for many respects for better, in that instance certainly, it’s not the same world. It’s instant and people react instantly… and there we are. It’s quite a difference there and it’s not something that’s going to go away.
Yesterday a federal district judge ruled the “National Day of Prayer” unconstitutional. But observing such a commemorative occasion involved no compulsion, discrimination or penalty on or against any observer of any religious doctrine. So what’s the rub?
Lots of Americans realize the First Amendment protects freedom of religion. It actually has two parts. The 1st guarantees the “free exercise” of religious beliefs. The 2nd prohibits any “establishment of religion” by the government. It’s the second clause — known unoriginally as the “establishment clause” — that is in play when debating invocations at public events, schools and the like.
“A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant, or undeserving of dissemination,” she said. “Rather it is part of the effort to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.”
Personally I think there’s a difference between making all elementary school students recite the Lord’s Prayer and ordaining a national day, really just an honorific, to recognize the role of prayer in American society. The former was declared unconstitutional in the early 1960s and few citizens today would object to that significant step toward religious tolerance and diversity. But as a constitutional matter, it is simply not the case that the US Constitution’s protections for religious freedom mean the government can support or promote either specific denominations (e.g., Anglicans over Baptists) or movements (e.g., Christianity over all the rest). At the margin, things like a National Prayer Day have little relevance except to those who stand on principle and refuse to compromise, which in US constitutional jurisprudence has always been a discrete and insular minority.
In a decision that has already generated a huge volume of commentary and predictions,1/ just three days ago the U.S. Court of Appeals for the District of Columbia Circuit reversed a contentious ruling by the Federal Communications Commission (FCC) from 2008 that penalized Comcast Corp. for violating the Commission’s “network neutrality” Internet principles. Comcast Corp. v. FCC, No. 08-1291 (D.C. Cir. April 6, 2010). Those principles include a content access requirement that the FCC said prohibited broadband operators and other Internet Service Providers (ISPs) from using network management practices to block or “throttle” specific Internet Protocol (IP) based services, such as the peer-to-peer, or P2P, filing-sharing communications offered by BitTorrent.
The Court’s opinion represents a devastating blow to the FCC’s assertion of ancillary jurisdiction authority over the Internet, ISPs and IP-based services. It calls into question how, if at all, the agency can implement many of the proposals put forward in its recent National Broadband Plan (NBP) and the “open Internet” proceeding launched last fall to codify those 2005 net neutrality principles (plus two additional rules proposed by new FCC Chairman Julius Genachowski). And the D.C. Circuit decision calls out for resolution by Congress of the jurisdictional void created — a call some legislators have already heeded.2/
Yet much of this crisis mentality appears unwarranted. There are accepted legal bases the FCC could employ to achieve a substantial part of its objectives related to consumer protection on the Internet. Where the FCC may not by statute operate, the Federal Trade Commission (FTC) — which for several years has been biting at the bit to oversee broadband competition and consumer protection — can. That is because the Comcast decision compels the conclusion, at the very least, that broadband is not a “common carrier” service over which the FCC enjoys exclusive federal jurisdiction. The FCC’s proposal in its recent broadband plan that the agency apply universal service funds to subsidize broadband deployment in rural areas is likely not threatened materially by the Comcast decision. And the larger public policy fight over so-called “reclassification” of broadband as a Title II service presupposes, incorrectly, that Title II treatment means subjecting IP-based services to the same, traditional public utility model of regulation as monopoly telephone providers. In short, the agency and Congress face a dizzying array of alternatives and options.
This post has two parts:
First, I review the proceedings leading up to and the substance of Circuit Judge David S. Tatel’s opinion for a unanimous three-judge panel of the court of appeals.
Second, I put the decision into context and explore ways in which the FCC could react, including the legal rationale(s) the agency would need to develop on remand.
Both portions of the essay, however, are of necessity general overviews. A complete examination of this rather wonk-ish area of communications jurisprudence requires a longer treatise than warranted for such a time-sensitive post. I encourage readers to address these issues in greater detail in comments below and to the FCC in its open Internet NPRM proceeding.
1. The Comcast Decision
The FCC had classified cable modem service as an information service under the bifurcated regulatory approach of Computer II and the 1996 Telecommunications Act, a ruling affirmed by the by the Supreme Court in NCTA v. Brand X, 545 U.S. 967 (2005). Nonetheless, the Commission later developed a set of four network neutrality principles adopted in a 2005 “policy statement.” These were intended to protect what the agency perceived as a threat to the open character of the Internet if vertically integrated content providers blocked or discriminated against other Web sites and content in order to favor their own IP-based services.
To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to access the lawful Internet content of their choice.
To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to connect their choice of legal devices that do not harm the network.
To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, consumers are entitled to competition among network providers, application and service providers, and content providers.
Much like the assumptions underlying the NBP, the net neutrality principles aspired to an Internet free of any provider’s control, giving every end user access — with little or no permissible differentiation among services or even packets — to all content available anywhere, anytime. (They also harkened to a similar failed effort by public interest advocates, in the late 1990s, for what was then termed “cable open access.”)
Whether or not regulatory intervention is needed to ensure this result was not at issue in the Comcast appeal, but it was central to the FCC’s enforcement action that triggered the case. Faced with the reality that file-sharing end users were consuming huge amounts of bandwidth, Comcast deliberately limited their ability to use P2P client-side applications by first outright blocking, and later imposing network management controls on, BitTorrent IP traffic, so that the latency-sensitive applications of the majority of its Internet customers would be delivered uninterrupted. Some consumer advocates alleged that the cable giant did so in order to protect its own on-demand video programming services from potential competition. Comcast stopped the practice after the story came out but was later discovered to have misled the Commission with its initial responses, and the company never revealed to customers that some IP traffic was not being routed with the same throughput as other services. The FCC subsequently imposed reporting and disclosure requirements on Comcast’s traffic management practices, based on the 2005 policy statement, which the agency had not promulgated as actual rules or regulations.
Comcast appealed that decision. The FCC defended its actions on the ground that, even though Internet broadband is not a telecommunications service subject to Title II of the Act, the agency has ancillary jurisdiction to regulate. That ancillary jurisdiction doctrine, sometimes confusingly referred to as “Title I jurisdiction,” is based on a 1960s-era decision by the Supreme Court in which the FCC had restricted cable television by regulation in order to protect traditional TV broadcasters, over which the agency enjoyed express statutory authority. In Comcast, the D.C. Circuit concluded that under that approach, ancillary regulations must be ancillary to something explicit in the Act, in other words that the Commission must show that its traffic management directive was “reasonably ancillary to the … effective performance of its statutorily mandated responsibilities.” Finding that the FCC had not done so, the Court reversed.
Without detailing each of the statutory hooks advanced by the Commission, it suffices to say that the agency did not seriously urge the court of appeals to sustain ancillary Internet regulation in order to protect its Title II, III (broadcasting) or VI (cable) jurisdiction over legacy services for which the Communications Act grants explicit regulatory authority. Instead the FCC urged that various general statements of public policy appearing in the 1996 Act amendments provided the necessary linkage. The D.C. Circuit rejected that contention, concluding that policy does not suffice under the ancillary jurisdiction doctrine as a statutorily mandated responsibility. The FCC also cited section 706 of the 1996 Act, which directs it to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” The Court likewise rejected that linkage because the Commission itself had long ago ruled that section 706 does not constitute “an independent grant of authority” to the agency.
These holdings, foreshadowed earlier by oral argument — see “Appeals Court Unfriendly To FCC’s Internet Slap At Comcast“ [Wall Street Journal] — are relatively unsurprising. What is somewhat unusual is that, in its appellate positions, the FCC suggested additional grounds for an ancillary jurisdiction theory that had not been relied on in its 2008 order. The most cogent of these added rationales was that Internet openness and nondiscrimination is ancillary to the “just and reasonable practices” mandate of sections 201(b) and 202(a), applicable to telecom carriers. Judge Tatel’s opinion dismissed these post-hoc justifications not on the substance, but rather because Administrative Procedure Act precedent requires a reviewing federal court to sustain or reverse a regulatory order on the same grounds offered by the agency in its underlying decision.
Comcast’s challenge of the 2008 order had offered the Court the opportunity to overturn it on the narrower ground that principles, unlike rules, are not enforceable in company-specific adjudications. But the D.C. Circuit did not reach that question. Its analysis essentially concurred with dissenting Commissioner Robert McDowell’s criticism that “[u]nder the analysis set forth in the order, the FCC apparently can do anything so long as it frames its actions in terms of promoting the Internet or broadband deployment.”3/
The end result is that the FCC’s network neutrality principles are effectively dead, for now at least. The agency has various options available, but unless and until it develops either an alternative rationale under its existing statutory framework, or procures a new legislative grant of authority from Congress, it cannot police the practices of ISPs and broadband providers. It is to these alternatives and their viability that I now turn.
2. The Post-Comcast Regulatory & Legislative Environment
In the wake of the D.C. Circuit’s decision, network neutrality advocates urged the FCC to ensure Internet openness by “reclassifying” broadband as Title II telecom service. Gloating opponents opined that the FCC was properly chastised and should rein in its efforts to regulate what they view as an increasingly competitive market, in which most major ISPs have long ago pledged to respect net openness as a business matter. Meanwhile, Web-based grassroots campaigns, with typical rhetorical excesses, sprang up overnight to “save Internet freedom.”
The reality is somewhere in between. Had the FCC desired, it could have — and still might — justify its ancillary jurisdiction by articulating a relationship between broadband Internet access and traditional, regulated communications services. By declining to review the Obama Commission’s arguments based on the mandatory obligations of reasonable rates and practices under Title II, the court of appeals has all but begged the FCC to do so on remand. The problem with this approach, especially given the history of the ancillary jurisdiction doctrine, is that it reflects a paternalistic, corporate welfare model of economic regulation which is out of favor as a policy matter with politicians, regardless of their party affiliation or ideology.
It would not, however, require much in the way of legislation to give the FCC explicit authority to adopt and impose network neutrality nondiscrimination rules. In its 2009 stimulus legislation, Congress allocated $7.2 billion for distribution by executive branch agencies in the form of grants to spur broadband deployment. A portion of those funds was expressly conditioned on grantees’ agreement in advance to comply with the Commission’s 2005 network neutrality principles. Unlike broader calls to completely rewrite the Communications Act in light of convergence, a legislative “fix” specific to net neutrality would not be unusually difficult. Whether there exists the political will and votes to do so, especially in the aftermath of the divisive healthcare reform debate, is unclear.
Nor does the Comcast decision by the D.C. Circuit necessarily spell the death knell for the Commission’s National Broadband Plan. Some of its proposals, such as privacy protections for broadband end users and truth-in-billing disclosure requirements for ISPs, would surely require new legislative authority. Yet the basic objectives of the plan, including its proposal to allocate an additional $16 billion in universal service funds to subsidize broadband services, are not necessarily invalid after Comcast. That is because section 254 of the Act likely allows the FCC to both collect USF contributions from and — as reflected in the E-rate program — use them for “advanced services” like Internet access.
The final FCC option is to reconsider its earlier rulings that Internet access services (at least when integrated with IP transport) are “information services” for purposes of the 1996 Act’s classifications. Some analytical jujitsu would obviously be required to achieve that result, since the agency needs to develop and articulate changed circumstances that rationally justify a reversal of its prior ruling. But since the Supreme Court has recently emphasized that the APA does not impose on administrative agencies any higher burden of justification to repeal or revise its rules and policies than to adopt them in the first place, the FCC conceivably might be able to satisfy that standard.
Much of the opposition to this sort of “reclassification” stems from the fear that characterizing Internet access as a telecommunications service would carry with it the full panoply of legacy Title II dominant carrier regulation, such as rate-of-return pricing, entry and exit licensing and the like. The two, however, are not co-extensive. It has been the law for several decades, codified by Congress in 1996, that the FCC enjoys the ability to refrain or “forbear” from regulation. Reclassifying broadband as a Title II telecom service could, at least hypothetically, be coupled with a simultaneous decision forbearing from application of most substantive regulations to ISPs.4/ Yet at least to public interest advocates, that would be viewed as a loss; in their regulatory paradigm broadband represents the new common carriage and should be offered on a quasi-utility basis. That perception will need to be changed if proponents of reclassification are to stand a realistic chance of persuading the agency and, more importantly, successfully withstanding judicial review.
Finally, under both the Bush and Obama Administrations the FTC has expressed a clear desire to exercise its own statutory jurisdiction over broadband services. Historically, the FTC is precluded from applying the Federal Trade Commission Act and its unfair competition and consumer protection standards to common carriers. But absent reclassification, broadband is plainly not a common carrier service under either the Communications Act or the FTC Act. As a result, although FTC Chairman John Liebowitz has not made a public statement to date in the wake of Comcast, most observers expect that agency to move relatively rapidly into broadband for purposes of filling the void left in the wake of the court of appeals’ decision.
Conclusion
Network neutrality is a complex, contentious and confusing issue. While the D.C. Circuit’s opinion is abundantly clear, it is not apparent how the FCC or Congress will respond and whether the agency will seek Supreme Court certiorari review to test the basis and scope of its ancillary jurisdiction. Having persisted formally since 2005, and as a matter of policy debate for more than a decade, net neutrality is not necessarily dead, it is just entering a new phase of consciousness. That it looks comatose is perhaps a mirage that will be evaporated with time.
2/ Rep. Henry Waxman (D-Calif.), chair of the House Committee on Energy & Commerce, announced almost immediately that he is “working with the Commission, industry, and public interest groups to ensure that the Commission has appropriate legal authority to protect consumers.” Waxman Statement, April 6, 2010. Earlier, in July 2009, Reps. Edward Markey (D-Mass.) and Anna Eshoo (D-Calif.) introduced H.R. 3458, the Internet Freedom Preservation Act of 2009, to enshrine what the legislation terms “Internet freedom” into law. However, In 2006 Congress failed to pass five bills, backed by groups including Google, Amazon.com, Free Press and Public Knowledge, that would have handed the FCC the power to oversee network neutrality compliance.
4/ In response to concerns voiced regarding reclassification, Rep. Markey said that even under Title II, the FCC could forbear if it wanted to” and that in the past it had “availed itself” of that power. “We shouldn’t pretend that going back to Title II would mean that the earth would stop spinning on its axis and it would be the end of times,” he added. See “Concerns About Title II Reclassification Aired at House Hearing on Broadband Plan,” T.R. Daily, April 8, 2010.
There has been a lot of talk, debate and criticism — leveled at Google, Microsoft and other major Internet content providers — about censorship of Internet content by the government of China. Google v. China: Principled, Brave, or Business As Usual? [Huffington Post]. The assumption most of these pundits make is that mandatory filtering and blocking of the Internet is a policy embraced only by repressive or authoritarian regimes. That’s not at all correct.
France passed and is on the verge of launching a so-called “three strikes” law that would require termination of Internet access by ISPs for end users found to have engaged in trafficking of copyrighted music and other content via P2P file-sharing services.
In South Korea, a new Internet censorship law allows for five-year prison sentences for anyone found using the Internet “to disseminate false news intended to damage the public interest” and bans anonymous comments on any blog with more than 100,000 readers.
Since 2000, Russia has required all ISPs to install “Sorm-2” software — “SORM” being the Russian acronym for “System for Operative Investigative Activities” — which enables the police and FSB (the “new” state security agency) to have access to all user surfing activity and email traffic.
Reporters Without Borders recently released a penetrating study of government Internet censorship, titled ”Enemies of the Internet 2010.” It cogently observes:
Western democracies are not immune from the Net regulation trend. In the name of the fight against child pornography or the theft of intellectual property, laws and decrees have been adopted, or are being deliberated, notably in Australia, France, Italy and Great Britain. On a global scale, the Anti-Counterfeiting Trade Agreement (ACTA), whose aim is to fight counterfeiting, is being negotiated behind closed doors, without consulting NGOs and civil society. It could possibly introduce potentially liberticidal measures such as the option to implement a filtering system without a court decision.
So Internet censorship is alive and well in the world’s “progressive” industrialized nations. The liberating technology of the Web is under assault because, as in 2009′s “green revolution” in Iran via Twitter, it can catalyze viral growth in political opposition and tends to harbor folks, like pedophiles, who’s activities are politically disfavored (even repulsive). No one lobbies for child pornographers, after all.
Just do not operate under the misimpression that it is only Saudi Arabia, Syria, North Korea, Vietnam, China and the like that censor Internet content. Almost all governments do it. The United States, with its constitutional First Amendment protection for free speech, and the Scandinavian countries — where the Pirate Party was victorious in Swedish parliamentary elections — which have classified Internet access as a fundamental human right, are the exceptions. This blogger, for one, hopes the exception swallows the rule. One can always hope.
I just posted the presentation slides from my keynote speech at the SociaLex 2010 conference. Titled “Where (What) Is the Law of Social Media?,” it is available here and here. Questions, anyone?
I know you are smarter than this, but some people may think this Web site and blawg offer legal advice. They don't. If you want legal advice, you need to hire me or another lawyer. Also, use of this site does not create an attorney-client relationship and, unless you hire me, email and other communications are not protected by the attorney-client privilege. The views and opinions expressed here are solely mine, of course, and do not reflect those of my law firm or clients.
August 17th, 2010 | 
Tags: anonymity, IP, legislation, mobility, Privacy, regulation, social networking | 
Category: Internet, Social Media, Tech Policy |
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