Berin Szoka is president of TechFreedom, a technology policy think tank.
Last week, millions of Americans, mainly on the left, rallied behind a cause larger than themselves: maximizing President Trump’s power over the Internet.
If you’re confused, don’t worry. This is all more complicated than slogans and sound bites might suggest.
The concept of “net neutrality” has become something of an empty vessel for frustrations about the Internet, but there’s broad consensus on the basics. Back in 2004, Republican Michael Powell, then-chairman of the Federal Communications Commission, declared that consumers have a right to access lawful content, run lawful apps and connect non-harmful devices to the Internet. More specific rules against blocking and throttling Internet traffic have never really been controversial. How to police anti-competitive conduct by broadband providers has been thornier, but if ironing out the details of net neutrality were the real issue, we would have resolved this fight long ago.
Congressional Republicans proposed to codify net neutrality in statute in early 2015, through a slight variant of legislation floated by Democrats in 2010. But Democrats have offered no response, except insisting that the FCC already has all the power it could ever need to do the job.
You might think Trump’s election would have made so-called net-roots activists more skeptical about trusting the government with vast and arbitrary power over the Internet. We’re not talking about a normal, neutral “expert” agency here. The FCC regulates the media and censors speech. It’s the agency Democrats excoriated more than perhaps any other under President George W. Bush. It’s the “junior varsity Congress” that Harvard Law School Professor Lawrence Lessig — godfather of the Digital Left — said requires immediate abolition. The agency’s regulations, he said, offered the “levers that lobbyists use to win favors to protect today’s monopolists.”
Would you trust any president with such leverage?
Starting under President Bill Clinton, there was a broad “Hands off the net!” consensus. John Perry Barlow, a lyricist for the Grateful Dead and co-founder of the Electronic Frontier Foundation, put it best:
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”
Barlow lost the first battle: Congress melded Internet censorship into the 1996 Telecommunications Act. But Congress also declared that the Internet should remain “unfettered by federal or state regulation.” And the Supreme Court blocked the censorship provisions anyway, calling the Internet “a unique and wholly new medium of worldwide human communication.”
Governments 1, Barlow 2.
But how to govern this new medium? Should broadband providers be regulated under Title II of the 1934 Communications Act — a law written for the old telephone monopoly? No, insisted a bipartisan group of senators in 1998, including Democrats John Kerry (Mass.) and Ron Wyden (Ore.), warning that such micromanagement and resulting uncertainty “seriously would chill the growth and development” of broadband.
Yet that’s the power President Barack Obama told the FCC to invoke in 2014 — on top of yet another sweeping claim the FCC made in 2010: The power to do anything the commission asserts will somehow encourage access to broadband services. Once Obama equated these broad claims of power with net neutrality, it became politically impossible for Democrats to separate them with legislation.
Powers invoked for net neutrality could be a Trojan horse — just as the Electronic Frontier Foundation warned about the Republican-controlled FCC’s power grab in 2008.
Former FCC chairman Tom Wheeler insisted the agency was “streamlining” Title II. But selective enforcement simply means the chairman can reward some companies and punish others. And the commission has a long history of using its powers for political extortion, most obviously in reviewing mergers, sometimes for transparently partisan purposes.
Wheeler claimed this was just about keeping broadband companies in line, but all Internet companies are at risk. Google and Amazon (if not Facebook) have found themselves in Trump’s crosshairs, right alongside “fake news” media companies.
The current FCC chairman, Ajit Pai, has long criticized the FCC’s abuses of power. Appointed to the commission by Obama and made chairman by Trump in January, Pai’s no stooge. He has consistently opposed the politicization of the agency and called for the FCC to constrain its discretion. But Pai won’t be chairman forever, and his self-restraint is highly exceptional. Bush’s second FCC chairman was criticized by the left and right alike for his abuse of power. There’s just no telling how future chairmen — Republicans or Democrats — might wield the powers claimed in the name of net neutrality.
Democrats should have worked out a legislative deal while they held the White House. It’s not too late, but it soon might be. Republicans increasingly see Web companies as political enemies. That will only get worse without legislation. We could spend another decade, or more, fighting about this.
The good news? Some Democrats and Web companies are showing signs they might negotiate. The door remains open — for now.