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.” **
.
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
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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