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Net neutrality, once a concept only discussed in arcane telecommunications legal policy settings has become a quite popular topic. Network neutrality is the notion of an “open internet,” defined by the FCC as allowing “…consumers can go where they want, when they want.” To go a little deeper, one Democrat and then two successive Republican FCC chairmen outlined and ultimately published a “policy statement” that brought definition to the idea with four principles that should be preserved by the broadband industry. And for well over a decade these bi-partisan principles were followed.
The goal of more broadband, more places, more often, and for more people was being met. The light touch regulatory model powered by a free market was the grounding for that success. No other model conceived even comes close to seeing the level of consumer freedom flourish alongside consumer choice.
But, unfortunately, for a wild-eyed minority of big government activists that was never the true goal. Instead they were on a quest to force a different, less effective, more consumer restrictive, intellectual experiment. And to that end the FCC, in thrall of activists, acted strictly along party lines and without citing any harm or unsolved challenges, to place the Internet under heavy handed government control that went far beyond the principles of net neutrality. This move “reclassified” broadband traffic as Title II telecommunications service, meaning that going forward broadband providers of all sorts would have to manage their systems, and be beholden, to government restrictions literally more than 70 years old. Such rules were created, 50 years before the public advent of the internet, to regulate rotary dial telephones provided by a monopoly.
Today though, the FCC began the conversation of whether the U.S. should instead look to the future, embrace innovation, and restore a free and open internet to consumers so that innovation, investment, opportunity and creativity can once again flourish. The first step was to approve moving forward with a notice of proposed rulemaking. The language of the notice almost implies the necessity of net neutrality rules highlighting that the question of whether light touch regulation would remain is not really at issue. The real question is whether the internet should be restricted by a decades-old law and be a government utility – a tangle of laws and regulations that brought us such celebrated innovations as an extra-long cord for the touch-tone phone receiver.
FCC Chairman Pai and Commissioner O’Reilly have made clear that they will stand by American ingenuity and opportunity and bravely support an appropriate framework for promoting an open internet by empowering lawfully operating consumers. The Commissioners clearly understand that for two decades the internet flourished and delivered great value to every citizen. They see that such opportunities are not played out, that so much more is yet to come. They know it is not time to declare the defeat of American ingenuity. They also understand that service providers, network providers, must be allowed to manage their systems.
Really though, this is an issue that Congress must address. We cannot afford to risk our future of health, communications, entertainment, work and education to those preferring social experiments above social success. Congress is the only entity that can instill the certainty, the permanence of supportive public policy for all consumers, clearly defining the authority of the FCC and the breadth of enforcement of it, or the FTC, has to enforce the principles of a free internet.
Title II is the wrong path for a variety of reasons if we want an innovative future and economic growth. Thankfully then, the FCC has begun a much needed process to restore the internet to consumers instead of locking away its potential behind government restriction.
Much has already been made, with more yet to come, about President Trump’s first one hundred days in office. Love him or not, love the accomplishments or not, even a cursory review of the last few months show a dogged determination to roll back the regulatory state. Today, in a highly anticipated speech by Federal Communications Commission Chairman Ajit Pai, could be the day of another very real move to enhance liberty and improve opportunities for all citizens.
As reported in Politico, “FCC Chairman Ajit Pai has two speeches lined up this week, including one on Wednesday where he’s expected to address the future of internet regulations and his vision for revamping the net neutrality rules.” Given the screaming by the anti-freedom crowd you wouldn’t be blamed for believing that the talk today is a harbinger of doom.
Hopefully it is doom, the extinction of the bizarrely named “net neutrality” restrictions. As one of the best examples of government hyper micro-management of imagined potential future concern, reversing the so-called “Open Internet Oder” should be priority one. The rules were never about solving a problem, or fixing a broken process. Instead the heavy handed regulations have been only about placing one of the most innovative, vibrant sectors of the U.S. economy in the unrelenting grip of government control. So, lovers of government constriction have warned of dire consequences for consumers if net neutrality is even modified much less removed.
The truth is much different. Changing or even “overturning” the rules is merely a restoration of the free and open internet, restoring an internet that once again includes a light regulatory touch while staying out of the way of progress, innovation and invention. All the bizarrely titled “net neutrality” rules did was to layer in costs, adding gratuitous restrictions that limit innovation and the necessary continued investment to bring consumers better, faster internet service. In other words, the rules are anti-consumer. No harm was ended because no harm was ever claimed. No freedoms were given, in fact liberty was reduced. The easy to see, honest, bottom-line? Consumers lost.
Of course some businesses, and pro-regulatory groups, did gain by the institution of the arcane new rules. When any regulation or law is put in place, business operations grow up around it resulting in winners and losers. But that is not a reason to perpetuate poor public policy. Moreover, the rule was only approved in 2015 and under constant legal attack since then. The notion that industries have built up in that little time, in the midst of uncertainty, is a stretch. The real reason that businesses have grown that are dependent on internet service providers providing stable, fast broadband is actually because of the competitive marketplace. This is to say that consumers required internet providers to create a consistent, quality and open system to retain them as customers. Are customers likely to stay with a company that intentionally blocks access to its service? Hardly.
No one should mistake that there is anything but near unanimous belief amongst all political tribes that an open Internet should exist. No advocacy group, political party, industry or consumer group is advocating for consumer harm. Arguments to the contrary are not just fake news but out and out falsehoods. Government restriction and control of the internet is by definition, not an open internet. Inarguably, the best way to preserve an open internet is precisely how an open internet has been preserved for this long, via the free market. That is how consumers will continue to be protected, and how consumers will continuously benefit from the innovation, investment and creation that follows. Hopefully this will be Commissioner Pai’s message of an optimistic future given today.
Discussions about personal privacy and government surveillance commonly end in a false choice.
Often someone offers that the government can watch them all they want and gather all the information the government may desire, because the person proudly asserts that they have no reason to be worried as they are not criminals and have done nothing wrong. Or they argue, that since government collects so much data about people already what’s a little bit more? To say that these responses miss the point is an understatement and leaves one to wonder if the commentator would be so cavalier about protections U.S. citizens enjoy in which they interested in partaking. Even a casual observer should understand that a constitutional protection checking government’s power, the search warrant, does not deserve to be dismissed so lightly. Our guaranteed protections can allow us to be secure and have our privacy.
This flippancy about our rights will face a very real challenge as the Supreme Court has agreed to decide exactly how much privacy Americans are afforded where mobile phone tracking data is concerned. The question is simple, should a search warrant be required before the government can demand information from mobile phone companies to determine the user’s past locations? The fundamental question is how easy should it be for government to collect data, and specifically location data, about us?
Location data can reveal a great deal about someone especially as smartphones are often tracking our whereabouts without our knowledge. Lower courts have said that a warrant is not required because the information is “voluntarily” shared by users with third parties, such as telephone companies or app providers. But a phone’s location can be revealed because a network identifies a mobile phone location when a call is made to the phone even if the call is not answered. Just because someone has phone is no indication they want their location known. The citizen’s choice then is to surrender their security to gain their privacy. The future will be more challenging. As technology advances, smaller cell sites are becoming more prevalent, and with smaller cell sites typically comes a small range, a more precise location generally measured in feet instead of miles.
The reality of digital age life makes the notion of voluntary sharing of information outdated. Taken together, the amount of information being provided and the ever-increasing precision of the exact location, we must come to understand that this is not part of some routine investigation and gathering of general information. Simply said, the use of a mobile device is completely different than dialing from the corner payphone forty years ago.
Having this much data about a person is in effect a search. The public already understands the difference. As found by the Harris Interactive poll, 77 percent of phone users did not want to share their location data with app users. This is personal information, and a warrant should be required.
The argument is not that this information should be locked away under all circumstances. Rather, as is normal and expected, the government should be required to show they have reason to believe, probable cause to believe, a crime was or is being committed. Should our digital records not have the same protections we afford their analog cousins? In fact, digital records, given their very nature of abundance, detail and automation should likely be afforded more protection that records from the past.
While Congress has yet to step in to clarify the laws, the state legislatures and lower courts have been busy with seven states already requiring a warrant for all location information, and several other states protecting some location information. But those state laws could be in jeopardy depending on how the Supreme Court rules.
Continuing to dilute our protections from a potentially abusive government is untenable. Do we really want people to have to choose between protecting their guaranteed privacy and ensuring their safety?
The answer is simple, government should not be able to do as it pleases without restraint, with checks and balances on its power. Let’s all hope the Supreme Court agrees.
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