Wednesday, January 2, 2019

Keep Social Media Free of the ‘Wild, Wild West’ of Government Regulation

“The days of the unregulated wild west are over for the social media,” asserted Virginia Senator Mark Warner recently on CNBC. Bloomberg reported:

Mark Warner, the Senate Intelligence Committee’s top Democrat, said Thursday a broad bipartisan majority in Congress likely will back new regulation of social media, though such legislation might take time to come together.

"Depending on how we framed it, I think we’d have an overwhelming majority," Warner of Virginia said at a conference on digital privacy in Washington sponsored by the Atlantic magazine. "I think there is a high chance that people realize that the days of the wild, wild west are over, that there needs to be some guardrails."

“Wild west” is the statists’ derogatory term for economic freedom, implying that a free market has no “guardrails.” But that’s false. A free market by definition requires law--legal protections for individual rights. That’s not what Warner has in mind. His (and others’) term “wild west” is being used to call for government regulation of social media.

“Guardrails” is a neat little bit of verbal gaming of the language of political philosophy. Legitimate, rights-protecting laws are all about establishing limits to individual freedom of action--guardrails, one might say--in that we are free to pursue our own individual interests so long as we do not violate the same rights of others by force or fraud. The principle of individual rights, properly understood, establishes the sphere of proper individual action, while drawing a line beyond which one’s actions cannot go--specifically, where others’ rights begin. Proper, objective law defines the boundaries, or guardrails, of rights.

Regulation is different from objective law. Regulation is about control by government bureaucracy, not guardrails. It is an ongoing process of legal bureaucratic rulemaking, without principles, featuring constant alterations, additions, and shifting interpretations based on  spur-of-the-moment political pressures. Facebook and other social media companies have always been subject to the rule of law, such as laws against fraud, breach of contract, extortion, and the like. What Warner and his ilk mean by wild west is that the politicians can’t control them. Enter regulation. Unlike the proper guardrails inherent in legitimate law, regulation means arbitrary rulemaking imposed on industries prior to any wrongdoing. In other words, regulation removes the guardrails for government officials. Free markets depend on objective law. Regulated markets, not free markets, more resemble the wild west. In his book Extortion, Peter Schweizer covers the nature of government’s power of control in deep detail. Here is a sampling:

There are about 170 federal entities that issue regulations. There are about 60 federal departments, agencies, and commissions, with about 240,000 full-time employees who make and enforce them. Americans are awash in regulations that are increasingly complex and difficult for the average person to understand. [p.17]

But not just for the average person.

Famed criminal defense attorney and civil libertarian Harvey Silverglate and Harvard law professor Alan Dershowitz believe that many professionals in America—particularly lawyers, accountants, bankers, and doctors—commit on average three felonies a day without knowing it [author’s emphasis, p.17].

And:

In 2011, American businesses were required to comply with no fewer than 165,000 pages of federal regulations [p 119].

Companies by and large want to comply with laws and regulations. Executives don’t want to pay fines, or worse, go to jail. Cass Sunstein served in the Obama administration as the administrator of the White House Office of Information and Regulatory Affairs. “As OIRA administrator, I often heard the following plea from the private sector: ‘Please, tell us what you want us to do!’ On many occasions, companies said they were prepared to comply with the rules, and to do so in good faith, but needed to know what, specifically, compliance entailed [p.116]

And Sunstein, Schweizer notes, “is no free market libertarian.” Why the complexity and vagueness for the average person, professionals, and businessmen? To create post - government service career opportunities, for one.

High - powered and expensive consulting firms in Washington are littered with former regulators eager, for a nice fee, to clarify the confusing rules they once wrote [my emphasis, p.119].

But that’s the least of it. As the title of Schweizer’s book implies, what he labels “the Permanent Political Class” can use the deliberately vague regulations they create to extort protection money from the regulated. And given that the regulated have fines and jail hanging over their heads, fear and panic become handy tools for politicians who wield a monopoly on legal coercion. The controlling power of the impossibly complex regulatory monstrosity is an omnipresent weapon for power-lusting politicians.

Said Senator Orrin Hatch, “If you want to get involved in business, you should get involved in politics [p. 87].” “Every aspect of regulatory life,” observes Schweizer, “is now involved in the extortion racket” [p. 122].

Welcome to the mixed economy. To what, exactly, does the wild west analogy really apply--the social media market or the regulatory state?

In the movie Tombstone, Johnny Ringo and his gang of gunslinging outlaws sweeps into town, kills the sheriff, and declares that “Law doesn’t go around here.” Ringo and his gang proceeds to rule by intimidation, fear, and violence, until Wyatt Earp rises to establish re-establish law so people can go back to living their lives in freedom and safety.

When private individuals can’t even figure out what they need to do to comply with the law until the people who write the law tells them, you are no longer talking about law. You are talking about political gunslinging. Schweizer compares the “Permanent Political Class” to a legalized Mafia. True enough. Given Senator Warner’s “wild west” analogy, one could also compare the Permanent Political Class to Johnny Ringo and is band of outlaws, with the political class ruling by intimidation and fear and where the violence is camouflaged by the highbrow superficiality of “law.” **
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No doubt the law must keep up with the evolution of the economic marketplace. There are legitimate issues, such a privacy breaches, that arguably could be dealt with by law. But it should be law—real, clearly understandable, objective law—not regulation. Bad as regulation is, it is especially important to keep the government’s regulatory hands off of social media companies. Given that social media is integrally intertwined with freedom of speech, the danger to our liberty of forcing the Facebooks and the Googles under the thumbs of the legalized outlaws of the Permanent Political Class is particularly acute. Facebook, Google, and other such platforms are conduits for billions of average people to express themselves and communicate with each other, so regulation is a dangerous infringement on intellectual freedom. It’s one thing to regulate an electric company. Bad as that is, the regulators are controlling only the flow of electricity. With social media, the regulators potentially gain control of the flow of news, information, and social debate. It is government censorship by proxy--that is, censorship just as sure as if we had a federal Ministry of Truth. Goodbye intellectual freedom.

As the new year and the new congress gets going, the most important issue for 2019 will be internet regulation. To put the issue in Mark Warner terms, and for the sake of our liberty and the rule of law that our liberty depends upon: Keep your wild, wild west regulatory hands off of our social media.

** [Yale law professor Stephen L. Carter distinguishes between law and regulation. From The Atlantic’s Enforcing the Law Is Inherently Violent:
He is astute to include “regulation” in his proposed debate––in recent decades, agencies in the federal bureaucracy that few members of the public would associate with law enforcement have assembled SWAT units that carry out paramilitary raids, often against unarmed citizens engaged in nonviolent transgressions.]

Related Reading:




TARA SMITH DISCUSSES “HUMANITY’S DARKEST EVIL” by Tom Bowden, summary of the essay “Humanity’s Darkest Evil”: The Lethal Destructiveness of Non-Objective Law—Tara Smith, chapter 18, Essays on Ayn Rand’s Atlas Shrugged

What is Objective Law?, by Harry Binswanger




'Fake News' Is Not an Excuse to Regulate the Internet—Zach Weissmueller for Reason.com
Both Democrats and Republicans are missing the mark when they call for the government to control the flow of information on the internet.

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