Note to Net Neutralityists: Be Careful What You Wish For

The distortions in the way the Trump FCC’s rollback of the Obama FCC’s so-called Net Neutrality rules is being reported is disgraceful. For example, AP reported:

The Federal Communications Commission repealed Obama-era “net neutrality” rules Dec. 14, giving internet service providers like Verizon, Comcast and AT&T a free hand to slow or block websites and apps as they see fit or charge more for faster speeds.

No. The FCC didn’t “give” the ISPs anything. It restored the rights of ISP providers to manage content traffic on their own networks—the networks that they built—as they see fit.

The original Obama rules did give something—a free ride to big content providers like Google, Facebook, and Netflix that lobbied for Net Neutrality regulations so they didn’t have to pay a voluntarily agreed-upon price or contractual conditions with the ISPs. In other words, the high-minded sounding “net neutrality” rules were just a crony regulation.

More seriously—though given far too little attention—the Net Neutrality power grab by government is a threat to free speech. In the name of “protecting consumers,” the rules put a handful of politically-appointed bureaucrats in charge of managing the flow of content across the internet. Thus the market—the cumulative choices of consumers that ultimately drives the ISP’s management—will no longer be the governing factor. The whims of government officials will. Once a precedent is net, its consequences spread and metastasize.

And it didn’t take long.

Intellectual freedom is crucial to the maintenance of a free and civil society. It’s no accident that the Founders made the protection of intellectual freedom explicit through the very First Amendment to the Constitution. The FCC’s 2015 so-called “net neutrality” rule was an opening wedge of control and an attack on that freedom where it is the most unfettered—the internet. It didn’t take long to see why and how that rule was only a start. As the Washington Post recently reported in The Switch: Tech companies pushed for net neutrality. Now Sen. Al Franken wants to turn it on them:

For years, tech companies have insisted that they're different from everything else. Take Facebook, which has long claimed that it's a simple tech platform, not a media entity. “Don't be evil,” Google once said to its employees, as though it were setting itself apart from the world's other massive corporations.

But now, some policymakers are increasingly insisting that firms such as Google, Facebook and Twitter really aren't that special after all — and that perhaps it's time they were held to the same standard that many Americans expect of electricity companies or Internet providers.

Sen. Al Franken (D-Minn.) became the latest and most vocal of these critics Wednesday when, at a Washington conference, he called for tech companies to follow the same net neutrality principles that the federal government has applied to broadband companies such as Verizon, AT&T and Comcast.

There you have it. The lure of political power—the power of the gun to coerce and control—is insatiable. Electric companies, bad as those monopolies are, carry mere electricity. Internet providers carry intellectual content. When government took the step of forcing “net neutrality” on the Internet Service Providers, they took a huge step toward control of the intellectual life of Americans. Now they’re agitating to take the next step—extend that control to content providers. Once we started down the road of government control of the internet camouflaged as “net neutrality,” there was nothing to stand in the way of power-lusters to expand their reach. A “call” for “net neutrality” on Google, Facebook, Twitter, et al, will eventually turn into a legal mandate and control if it is not stopped.

Alex Epstein saw this coming in 2006:

The widespread support for net neutrality among successful Internet companies — including Google, Microsoft, Yahoo, eBay, and Amazon — is short-sighted and contemptible. These companies, which have benefited greatly from the unimpeded freedom of the Internet, are now trying to deny the same freedom to innovative ISPs and ambitious competitors under the egalitarian banner of “equal access.” This is an invitation for any clever moocher to demand “equal access” to their hard-earned resources; indeed, Google is already being sued because its proprietary search engine allegedly gives “unfair” rankings to certain companies. [My emphasis]

To be clear, the FCC’s 2015 “net neutrality” rule didn’t replace an unregulated internet. There was regulation, by the FTC, targeted at specific complaints as they arose. Nor was the “net neutrality” some iron-clad guarantee of strict sameness in how ISPs managed traffic on their systems. There were plenty of “loopholes” for the ISPs to exploit under “net neutrality”. The ISP’s could still discriminate—but only after getting FCC permission. ” As my Mercatus Center colleague Brent Skorup has tirelessly pointed out,”  Andrea O'Sullivan points out,

the OIO [Open Internet Order, aka “Net Neutrality”] did not require all internet actors—ranging from ISPs to content platforms to domain name registrars and everything else—to be content-blind and treat all traffic the same. Rather, it erected an awkward permission-and-control regime within the FCC that only affected a small portion of internet technology companies. [my emphasis]

In other words, the government seizes control.

But the details are beside the point. As the great James Madison once said in the context of defending religious liberty from government encroachment, “The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle."

The principle involved today is the idea that the companies that have given us unprecedented freedom to talk to one another should be controlled by the state. A state that can dictate how content can be carried on the ISP’s networks can also dictate what content can and cannot be allowed on the networks. Franken’s jab at the content providers shows the principle in action. Therefore, we should deny that principle—the principle that the government should have any say whatsoever in what content flows on the internet and how it flows, what it costs, how it is managed, etc. Electricity is one thing. But for all the hollow talk by net neutralityists about protecting consumers, who in their right mind would want the state to dictate what we say and how we say it to each other?

Which gets us back to Franken. As O'Sullivan observes over at Reason,

FCC Chairman Ajit Pai made this very point last week at an R Street Institute event on the repeal. Major edge service providers like Google, Facebook, Reddit, and Twitter have made their opposition to OIO deregulation loud and clear to their user base. Some have displayed automatic messages on their front pages, urging visitors to take action and encourage others to do the same. Yet at the same time, these services engage in kinds of content blocking that they say broadband providers could possibly do.

This hypocrisy is relevant for more than just ideological inconsistency. It's about economic power. By encouraging harsh regulation of ISPs that effectively controls the rates that major tech companies can be charged for bandwidth, these companies are engaging in a kind of regulatory capture.

While I dispute O’Sullivan’s characterization of the edge service (content) providers demanding that net neutrality be imposed on the ISPs as economic power—regulation is actually political power, and there is a night-and-day difference there—the point is clear. Franken is right: If net neutrality is the goal, then why shouldn’t the “tech companies . . . follow the same net neutrality principles that the federal government has applied to broadband companies such as Verizon, AT&T and Comcast?” The principle demands it. There’s no logical reason why they shouldn’t.

Which is precisely why the net neutrality rules should have been repealed. Avoid the consequences of the principle by denying the principle!

Let’s not be suckered by the statists or the cronyists. “Net Neutrality” is not about consumer protection, which is already adequately covered by anti-fraud and breach-of-contract laws. It’s about government control—about erecting a “permission-and-control regime within the FCC.” Government-imposed “net neutrality” rules are stupid in terms of economics and stifling of innovation, and unfair in terms of violating the property rights of the ISPs that built their networks. But “net neutrality” mandates are also downright dangerous to intellectual freedom—our freedom to express our thoughts—and should be repealed. We should do no less than follow Madison’s advice, and deny the government any say in controlling how the ISPs and tech companies manage their businesses and networks, as a matter of principle. Our ability to freely speak, communicate, debate, and rebut ideas is at stake. Repeal the government’s Net Neutrality rules and forbid them from ever re-imposing such rules again.

Better yet, abolish the FCC as the major threat to freedom of speech that it is. Net Neutrality supporters profess concern about the “power” of the ISP’s to control content flow on their networks. But it’s their networks, after all. Their power—economic power—derives from their ability to build and provide an offer of internet service, which consumers are free to accept or reject. The power that should be of concern is the government’s power—political power; the power to coerce and control and enforce edicts at the point of a gun. That’s the power that the FCC brings to bear on the flow of information and ideas across the internet. It’s not enough to say the government would never use its power to stifle that flow. But that’s not the point. It can use it covertly, by way of regulatory extortion, just as easily though less detectably as it can overtly. But even if not, a government of a free country should never have that power to begin with—not the power to control intellectual discourse nor, more broadly, the power to interfere in private economic contract between private citizens or their companies without evidence of rights violations. Our intellectual and economic freedom should not be at the mercy of government officials or politics

Good riddance to Net Neutrality. We need legal neutrality—a government that protects rights equally and at all times. Don’t give the next administration the opportunity to reimpose these rules, or something even worse. Abolish the Federal Communications Commission now.

Related Reading:

Net Neutrality: Toward a Stupid Internet—Raymond C. Niles for The Objective Standard

Net Neutrality: Toward a Stupid Internet—Raymond C. Niles for The Objective Standard

David Harsanyi: Forget Net Neutrality, and Abolish the FCC—David Harsanyi

Save the ‘Net’; Abolish the FCC—David Harsanyi

S-L—'Net neutrality too valuable to lose now.': No, Internet Freedom too Valuable to Lose, Ever