FCC, the Internet, Regulations, Freedom of Speech, and a Ranting Lemming

The Lemming should probably say it again: this isn't a political blog.

In other words, the Lemming thinks that daft ideas are daft, no matter who expresses them.¹ Or, worse, pushes a daft idea through Congress.

Like the nifty new "net neutrality" regulations that the FCC is getting. This week's articles - the ones I found, anyway - didn't mention the Combating Online Infringement and Counterfeits Act (COICA) by name, so maybe the current bill is another effort to grab control of the wicked, wicked Web.

"Wicked, wicked Web?" The Lemming will get back to that.

The Lemming will get back to copyright infringement and intellectual property rights later, too.

This post is mainly about what looks like a really bad idea: giving a government agency the power to decide who gets to stay online, and who doesn't.

Law, Reality, and an Old Joke

Decades back, the Lemming heard this joke: Back then, most lawyers were "he," so don't have a stroke, please. Anyway:

A lawyer got a call from one of his clients, who said that he'd been charged with some offense. The lawyer reassured the fellow, saying 'they can't put you in jail for that.' 'You don't understand,' the client said: 'I'm calling from the jail!'

'The Government's Doing It, So It's Legal?'

Now, an op-ed from today's news:

"FCC amok"
NEWS telegraph.com, Worcester, Massachusetts (December 23, 2010)

"New rules for Internet lack any legal basis"

"On Tuesday, the Federal Communications Commission pushed ahead with so-called 'net neutrality' regulations, asserting that it has the right to tell Internet service providers how to manage their networks. In fact, not only does the FCC lack specific and explicit authority to do so, but a federal circuit court in April ruled against the agency on precisely the same matter.

"The issue of net neutrality pits those who believe that free markets should be allowed to shape the development of the Internet against those who believe that Uncle Sam needs to play some role in assuring that companies don't discriminate against certain kinds of Internet traffic. The fear is that, left to the marketplace alone, the information superhighway will eventually become a divided highway, with a high-speed express lane for the information 'haves,' and a slower, more congested lane for the information 'have-nots.'

"There's no getting around the fact that individuals, families and companies with the means to do so have always enjoyed advantages in the information age. They were the first to have Internet connections of any kind, were first to dump dial-up service for zippier DSL, and subsequently switched to fiber-optic services. That's just how markets work...."

In a way, the Lemming feels a little sorry for big, old-school, pre-Information Age managers and executives. Some of them - the ones who aren't like the clueless wonders in Scott Adams' Dilbert comic - may realize that times have changed, and are trying to catch up. Others? Well, here's today's Dilbert:



Scott Adams understands the Internet, by the way: Unlike the executives in his comic strip, he does not live in constant fear that tens of thousands of people, all over the world, may send visitors to his website. In fact, he encourages it. Which is how I got the "embed" code for today's strip. What you're seeing here is a reduced-size version, by the way: the original is 640 pixels across.

Like I said, Scott Adams understands the Internet. But then, he's not an old-school executive.

Folks who are old enough to have gotten into a high-level corporate job aren't necessarily stupid. They're just specialized. For another era. The Lemming's discussed one scenario in another blog:

• "Why Your Boss Doesn't Understand the Information Age"
  Starting a Small Business Without Losing My Mind (August 9, 2010)

It's easy, for the Lemming, to see the bill discussed in the Telegraph, and elsewhere, as an effort to put economic and political power back into the hands of the 'right sort.'

Now, an excerpt from a political blog entry. Not mine:

---

'If It Moves, Regulate It'

"FCC Regulatory Overreach Threatens the Internet"
U.S. Senator Kay Bailey Hutchison, Wilson County News, Texas (December 23, 2010)

"The Internet has grown and flourished for more than 20 years without burdensome federal regulations. Absent government roadblocks that could hold up progress, the Internet has been able to evolve and rapidly advance as technology develops. Along with it, business development and job creation, spurred by web-based innovation, have been strengthened by a free market-oriented environment. Unfortunately, this could soon change because of new Internet regulations issued by the Federal Communications Commission (FCC) in a three-to-two party line vote on December 21, 2010.

"The new rules represent an unprecedented power-grab by the unelected members of the FCC, to whom Congress has delegated very limited authority to act in the area of broadband services. This unaccountable group of regulators is creating authority to intervene in an area that represents one-sixth of the nation's economy. The move installs a government arbiter to force their idea of how the Internet should be run on users and the companies that are trying to make broadband access available to Americans throughout the nation.

"The public is largely happy with the way the Internet currently works - as a private resource. The FCC action is a solution in search of a problem.

"The FCC's proposed regulations are particularly concerning because they would impose new directives onto communications companies that will stifle the Internet's well-known and successful spirit of innovation...."

The Lemming was born during the Truman administration. I might be more nostalgic for the 'good old days,' but I've got a pretty good memory. I remember the trailing edge of McCarthyism, the 'kill a commie for Christ' attitude, political correctness, and disco. Also Jimi Hendrix and postmodern architecture. The 'good old days' weren't all bad, either.

What looks like the latest power-grab by America's national government is just that, in the Lemming's opinion: the latest.

Back when the Internet was young(er), some folks were shocked on horrified at the pornography that was rampant. Others were shocked and horrified at online "hate speech." Emotion seemed to run high.

The Lemming is of the informed opinion that emotions and reason don't play well together. ("Emotions, the Frontal Cortex, The War on Terror, Anarchists, and the Illuminati," Another War-on-Terror Blog (December 23, 2008)) - - -

Protecting the Masses from the Wicked, Wicked Web

- - - Which might help explain why the Christian Coalition and the Feminist Majority teamed up, a few years back, in an effort to get a federal agency that would decide what Americans were allowed to see and read. They didn't put it quite that way, of course.

That time, Americans escaped with our freedom of expression intact. This time? Time will tell.

---

New Rule: Everybody's Equal: As In 'Alike?'

"Internet regulation proposal sets off political firestorm"
Alexander Mooney, Political Ticker, CNN (December 21, 2010)

"The Obama administration is facing a fresh round of heat from Republicans Tuesday amid the passage of a Federal Communications Commission proposal that aims to impart new regulations on internet providers.

"The so-called 'net neutrality' rules, proposed by the Obama administration, is the federal government's most high-profile move yet in connection with a debate nearly as old as the modern-day Internet itself. The proposed rules would require high-speed providers to treat all types of Web content equally, instead of allowing providers to favor some types of websites or apps at the expense of others.

"While some Democrats say the proposal doesn't go far enough in leveling the Internet playing field, Republican critics – including the two on the five-panel FCC commission - say it is the latest example of government overreach into a place it has no business to be.

" 'Analysts and broadband companies of all sizes have told the FCC that new rules are likely to have the perverse effect of inhibiting capital investment, deterring innovation, raising operating costs, and ultimately increasing consumer prices. Others maintain that the new rules will kill jobs,' wrote Robert McDowell, a Republican member of the FCC, in a Wall Street Journal op-ed....

"...'Let's face it, what's the Obama administration doing? They're advocating net neutrality which is essentially censorship of the Internet,' GOP Rep. Michele Bachmann said earlier this year. 'This is the Obama administration advocating censorship of the Internet. Why? They want to silence the voices that are opposing them.'..."

Phrases like "level playing field" sound nice. Problem is, in the Lemming's opinion, that not everybody's on the same page when it comes to defining whose playing field we're talking about, or which direction it should be 'leveled' in.

The Lemming doesn't mind living in a world where some folks have faster computers than the ones in my house, or better Internet connections. And I certainly don't mind the sort of opportunities that encouraged others to develop the faster, more powerful information technology that's available today. Because after the new technologies aren't so new any more, they'll get less expensive - as folks who can start ignoring last year's models.

The Lemming did mind the 'good old days,' when students with the 'wrong' views were shouted down. And I'm sincerely glad I (barely) missed the older 'good old days,' when The Man in the Gray Flannel Suit became a cultural landmark. Hollywood blacklists? The Lemming thinks those were a really bad idea.

Today there's another lot in charge, but the urge to control the culture hasn't changed. My opinion.

---

'You Know Too Much?'

"Republicans Aim to Block FCC's New Internet Rules Before They Go Into Effect"
Stephen Clark, Politics, FoxNews.com (December 22, 2010)

"The Federal Communications Commission this week adopted a plan to police the web, but it will take at least a couple of months to implement the new rules – a procedural delay that could benefit Republican critics in Congress who are determined to erect a blockade.

"The Internet regulations -- which aim to prevent service providers from discriminating against websites and companies using their networks -- cannot go into effect until 60 days have passed after they have been posted in the Federal Register. But the rules won't be released until the dissent by commissioners who voted against them are addressed.

"A source with knowledge of the FCC's workings told FoxNews.com that the rules are likely to be made public in January, putting them on track to be enacted sometime in March.

"But it might be too late by then...."

A central authority deciding who gets to have which information services? What could possibly go wrong?

After all, the government says they'll tell us what the regulations are. Someday.

---

Kept in the Dark: 'For Our Own Good?'

"Why is FCC's 'net neutrality' order still a secret?"
Amy Gahran, Internet, CNN (December 21, 2010)

"The Federal Communications Commission adopted new rules Tuesday governing one of the most controversial issues facing that agency: 'network neutrality.'

"This FCC order would require internet providers to allow access to all kinds of legal Web content. And it also would reportedly make it harder for broadband internet access providers to slow delivery of some kinds of internet content while putting others on the fast track...."

Putting it that way sounds: nice.

The Lemming doesn't exactly trust "nice." Maybe it's because I remember what the "Happy Days" of the fifties was really like. Which is almost another topic.

---

'In the Interests of National Security' - Sound Familiar?

"Homeland Security Violating Due Process and Free Speech In Internet Power Grab?"
Hans Bader, OpenMarket.org, (December 2, 2010)

"Law professor David Post notes that the Department of Homeland Security is seizing entire domain names, not to protect national security, but to enforce run-of-the-mill copyrights. He calls this an unconstitutional due process violation, noting that '80 websites . . . have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral [judge], that anything unlawful is going on at these sites.'

"He also notes that Congress has not yet passed a bill that would have granted the federal government the specific authority to seize domain names. (Senator Wyden of Oregon has put a hold on a bill known as COICA, the Combating Online Infringements and Counterfeits Act, that would allow U.S. courts to 'seize' domain names belonging to U.S. or foreign websites simply upon a charge, by the Attorney General, that the site was 'primarily devoted' to infringing activities.)

"Earlier, CEI's Ryan Radia and 40 law professors criticized COICA, arguing that it contained 'egregious constitutional infirmities,' and would lead to restrictions on speech that are unconstitutionally overbroad and violate First Amendment rules against prior restraints. Professor Post also argues that the domain-name seizures would be 'prior restraints on speech' that are 'blatantly unconstitutional.'..."

Well, if the government's doing it, it must be okay, right?

The Lemming didn't believe that in the sixties, and I don't believe it now. I don't think America's national government can do no right, but I don't think it can do no wrong, either. And I remember when 'in the interests of national security' was used as an excuse too many times. Which, sadly, is not quite another topic.

Copyright, Intellectual Property Rights, and the Lemming

The Lemming is a content provider on the Internet. That's a fancy way of saying that I've got a number of blogs and websites, and produce new information for them.

This blog, and some others I do, contains excerpts from other blogs and websites. But that's part of the micro-review format I use. That big blue eye of mine doesn't, I think, give me the status of, say, a Hollywood celebrity: so I figure that I need to show you a sample of what I'm talking about in these posts. Besides, I've read too many 'professional' reviews in which I'd read or viewed the object (target?) of the review: and noticed little similarity between the original and whatever the reviewer was ranting about. That's yet another topic.

The Lemming has a short description of "fair use" in my Legal Stuff paragraph. It's not so much to discourage folks, as to reassure anybody who wants to do the sort of review-and-link thing I do.

That's just common sense.

Then, there's the AP:

• "The Associated Press, Fair Use, TechCrunch, and Common Sense"
  (June 22, 2008)

What made the situation funny, two years ago, was that the AP declared a - goofy, self-destructive, in the Lemming's opinion - set of rules they called 'fair use' of their content. And then promptly violated their own rules.

Maybe, as Leona Helmsey said about taxes, the AP thought rules 'are for the little people.' (The quote is "We don't pay taxes. Only the little people pay taxes." And L.H. says she didn't say it. (CNN))

Some of the Lemming's take on intellectual property rights and common sense:

• Does the Lemming think that some folks copy what others produce, and use it without permission, for their own purposes?
  • Yes
• Does the Lemming think that it's okay to copy what others produce?
  • Yes
  • No
  • It depends on the circumstances
• Does the Lemming think that nobody should copy other people's content?
  • No
  • "Fair use" is - fair
  • Real "fair use"
    • Not weirdness like the AP gaffe

The Lemming isn't quite on the same page with America's dominant culture when it comes to some aspects like "fair use" and "privacy." Part of that comes from living in a small town, where the sort of anonymity that some folks call "privacy" doesn't exist; part from the sort of attitude expressed in the old, "I don't care what you say: just spell my name right!" And that's yet again another topic.

Related posts:

• "COICA: A Federal Official Deciding Who Gets to Stay Online"
  (November 19, 2010)
• "Our Benevolent Rulers Protecting Us From Big Paperclip?!"
  (October 2, 2010)
  • "...the sort of stupid thing that bureaucrats do...."
• "FCC, Internet, Rules, Technology, and Business"
  (June 21, 2010)
• "The New York Times and the Information Age: Culture Shock?"
  (June 10, 2010)
• "Intellectual Property Rights: Yes, They Matter"
  (June 13, 2010)
• "It Can Happen Here: "Hate Speech" and Censorship"
  (January 12, 2008)

The Lemming's views on dangerous technology and personal freedom, in yet another blog:

• "Blogs, Freedom of Speech, and Threats to the Status Quo"
  Another War-on-Terror Blog (July 31, 2010)
• "How to Shut Down the Internet - or - Dealing With Troublesome Ideas, and the People who Spread Them"
  Another War-on-Terror Blog (December 7, 2009)
• "DC Gun Ban, Online Censorship, Individual Rights, and Power to the People"
  Another War-on-Terror Blog (June 27, 2008)
• "Odd Allies: Opposition to Waterboarding and Web Censorship"
  Another War-on-Terror Blog (March 9, 2008)

---

¹ I've often been described as a conservative. That's understandable, I think, given the assumption that there are only three possible philosophical stances: contemporary America's liberal, moderate and conservative views.

Four, counting apathy. I've discussed "apathy" and this blog's name before.

In the context of this blog, maybe being concerned about a government official deciding who's naughty and nice - and allowed to be online - likely makes me "conservative." A half-century ago, that sort of 'free speech' attitude would have made me "liberal" in the minds of 'real Americans:' and that's another topic, almost.

As for not fitting into the liberal/moderate/conservative pigeonholes, I've discussed that in yet again another blog:

• "USCCB's New President: And the Press Still Doesn't Get It"
  A Catholic Citizen in America (November 17, 2010)
• "Cultural Chaos, Divisiveness, and CNN"
  A Catholic Citizen in America (April 1, 2010)
• "Conservative? Liberal? Democrat? Republican? No, I'm Catholic"
  A Catholic Citizen in America (November 3, 2008)