Why is net neutrality a partisan issue and how is it negatively impacting privacy rules?

Net neutrality shouldn’t be a partisan issue. The internet isn’t a government agency even though a number of governments around the world would like to restrict their citizens access to it and regulate the content that flows through it. If the internet, as it is viewed in the United States, is a means by which liberty, equality, and democracy intersect and are expressed, then shouldn’t the Republican and Democratic wings of Congress unite on those three pillars of American society?

Is there any contention in the area of liberty as it pertains to the internet?  It does not appear that way. The left replaces the word “liberty” with “freedom” and sticks pretty close to the traditional wording of the open internet, meaning no blockading of consumer access to the legal content of a website.

The right would agree with the left that consumers should be able to access the legal content of their choice. This issue goes to the fundamentals of conservative philosophy, liberty.

Regarding equality, I see contention. On the left, equality on the internet means that traffic from one website is treated the same as traffic from another website. A broadband access provider should not be allowed to throttle a site’s traffic prior to delivering the traffic to a consumer. The principle of equality would also hold, according to left internet philosophy, regarding the issue of paid prioritization. Paid prioritization occurs when a content provider pays a broadband provider for the privilege of special treatment of its traffic. The broadband provider may provide the content provider with “faster lanes” or some other privilege that grants that content deliverer’s traffic some priority over other traffic.

The right may not necessarily disagree that paid prioritization grants a one provider an advantage over another. Whether that advantage is fair or merely a valid business decision is the question and if the decision to provide priority to one type of service versus another is reasonable, then why not?

Prioritization occurs every day. Take the example of packages sent via a common carrier such as the post office. A consumer of postal services has an option of paying to send mail via regular mail or by priority mail, getting his package to its final destination within the next one or two days. The content of the mail may be such that rush delivery is of the essence.

Taking a flexible approach to prioritization may be in keeping with varying demands of different applications. In its recommendation for bipartisan legislation on net neutrality, the Information Technology & Innovation Foundation noted that:

“Legislation should allow clear flexibility for traffic differentiation for applications that require it, avoiding an overbroad flat ban on prioritization, while clearly prohibiting anticompetitive conduct. Legislation should put some restrictions on paid prioritization to limit the potential for abuse, such as a simple ban on exclusive dealing or a requirement
to offer similar terms to all customers.”

Finally, the left has made vigorous arguments that broadband access providers have the potential to threaten democracy on the internet because of their technical capability to block and throttle traffic. This potential bad behavior would restrict a consumer’s ability to choose or produce the content of her choice.

While conservatives may empathize with the self-expression argument, I would expect a two-pronged rebuttal. First, since broadband access and the internet (for the most part) is a private, commercial enterprise, there is no state action intervening in a citizen’s right to participate in the political process. That alone should make the concerns about democracy moot. Second, it is not in a broadband provider’s best business interest to discourage the use of its network. The more users and more traffic exchanged, the greater the revenues and profits and lower the operational costs of the network.

Given the heightened concern over the last two years about privacy on the internet, the left and right wings of Congress should use the need to bring certainty to privacy as a catalyst for closing the philosophical gaps in the vision for the internet. Privacy is being placed on the backburner which is unfortunate because while most consumers are fine for the most part with the internet as it is (growth in ecommerce is one such indicator of the internet’s health), codifying net neutrality principles, general principles that the left and right agree with, in the form of a statute plus providing bright-line rules on privacy and privacy enforcement will bring certainty to consumers of broadband services as to a safer internet and certainty to broadband providers that wish to continue investment absent the nightmare that a back-and-forth that the current regulatory framework creates.

In the political marketplace, Heath Ledger’s Joker meets the black voter

18 July 2008. That is the date most movie audiences got the chance to see, in my opinion, one of the finest performances in cinema. That day, “The Dark Knight” was released. It starred the late Heath Ledger as the iconic villain, “Joker.” The movie, released after Mr Ledger’s death, would garner him the Academy Award the following year. I can’t tell you how many times I have seen the movie over the past ten years. I always found the anarchy narrative intriguing. Joker’s appeal that we were supposed to live in a world without rules sits well with me. There is something else that I have noticed about the character. Joker lives in the past and is quick to let anyone within earshot, or his knife blade, know about his scars.

‘You wanna know how I got these scars?’ The interrogative served as a preamble to Joker taking a victim’s life. It also let the audience know they were going to take a trip down memory lane, into a past filled with pain and suffering. His physical scars, if one listens closely, were emblematic of the emotional scarring he suffered from childhood into his adult life. Authority had not only failed him but had also taken its anger out on him.  As a result, it appeared that Joker decided to go it alone, engaging only in temporary alliances, and discarding them when a job was done.

Joker’s preoccupation with the past reminds me of the preoccupation black American voters have with their historical and political past.  When you listen to a prominent black political leader, you are tempted to pull out your smartphone and check the calendar to verify whether the year is 2018 or 1968.  White Americans probably feel like the character, Michael Jai White’s character, “Gambol”, listening to black politicians and civil rights leaders wax on about past injustices before the knife blade stained with talk of reparations, income and wealth inequality, police brutality, and the never experienced (on both sides) trauma of slavery is slashed across their political necks.

White America in general and the conservative Republican Party in particular do not have political philosophies that require they labor in the pains of the past. In addition, the GOP still hold on to the narrative of less government intervention and more of the Ronald Reagan “up by your bootstraps” approach to solving household financial and economic issues.

Blacks would argue that the GOP would like to take America back to 1958 and the era of Jim Crow segregation, but again, given that the GOP has no past pains to ponder on, they and black American voters will fail to connect because their frequencies are different.

And I don’t see the GOP tuning in to black America past pain anytime soon. They don’t have to in order to get votes. Their lack of effective outreach over numerous past election cycles to black voters is evidence that I won’t be seeing any national or even state GOP candidates in Atlanta’s 30310 zip code.

Besides, if the GOP needs to leverage the pain narrative for votes, all they have to do is focus on the current dilemma facing white men. Although the economy has recovered, white working age men in rural areas are feeling the impact of long term unemployment and lower wages. They have turned to opioids as a coping mechanism. I don’t see the Democratic Party reaching out to this group meaning an opportunity for Republicans to dust off the plate and take a few swings for the bases this fall.

And what would Joker advise? He would probably say try a little aggressive expansion, dump the rules, and go your own way.

Will Congress regulate.@facebook like a public utility? Given its potential benefit to partisan politics, probably not. #socialmedia

The Wall Street Journal’s Holman Jenkins, Jr. posted an article last Friday about Facebook’s apparent maturity as a business given its focus on regulatory issues such as the potential of Congress to regulate the social media company like a public utility. Mr Jenkins points out that Facebook’s fear of regulation, a fear shared by other “tech” companies, comes from the attention that large companies draw to themselves as the result of centralization of power. In this case, Facebook is perceived as one of the few central nodes of power in the digital space (along with fellow FANGs; Amazon, Netflix, and Google). Issue is, does Facebook have a monopoly status that justifies “public utility” regulation. My answer is no.

The classic argument for regulating a firm as a public utility is that the public has an interest in benefiting from the use of the public’s rights-of-way including the efficiencies that flow from making such uses exclusive to one firm in a given territory. Electric and water utilities quickly come to mind when we discuss public utilities and rights-of-way. Would you rather see your streets and driveways dug up to provide multiple pipes from multiple water or electricity suppliers or would you rather one supplier who is forced to comply with a pricing model that creates a competitive price and rate of return on the assets used by the utility to produce a good? For the most part, society has settled for the latter. We don’t like the idea of having an excess number of utility lines running overhead or into our residences for aesthetic or safety reasons.

Does Facebook fall into this public utility model? No, it does not. According to Facebook, the company makes almost all of its revenue from the sale of advertisement. Facebook uses its algorithms to identify potential viewers of content or purchasers of services for its advertisers and display ads these ads to content viewers and services purchasers in exchange for an advertising fee. Ad services, including the delivery of advertisements to consumers, by Facebook’s admission is a competitive business. Unlike electricity transmission and distribution, ad delivery is not a monopolized industry. As Mr Jenkins points out in his piece, ads are ads, digital or otherwise, and Facebook is no where near dominating a $540 billion advertising industry.

Even if Facebook had a monopoly on the delivery of advertisements or advertisement services, would a regulator risk creating a state action by regulating Facebook’s advertising services? Bearing in mind that the latest buzz around Facebook ads was spawned by the delivery of advertisement messaging produced by Russian nationals allegedly designed to disrupt and defraud the American electorate, would Congress require that Facebook vet the firm generating advertisement content? Would Congress risk the overturn of legislation requiring Facebook vet advertisers if found violating the First Amendment?

I think that even advertisers confident that their messaging does not violate the public interest would think twice about placing advertisements on Facebook’s platform. More important, from the perspective of the regulator, an administrative agency would not to create the risk of creating First Amendment violations and having to defend those violations in court. As the U.S. Supreme Court held in Edenfield v. Fane:

“The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.” 113 S.Ct. 1792, 1798 (1993)

Finally, political parties may not want to impede the returns to electioneering that social media has been providing for the past decade. According to the Brookings Institution, since the 2008 national elections, political parties have been determining how best to convert the amplification and engagement created by social media during a campaign season into two-year and four-year governance.  Political parties have been encouraged to use social media in a number of ways including the following:

  • Acknowledging that the electorate is using social media as a “trust filter” of political news and information;
  • Realizing that politicians have decreasing control over debate topics and that control is shifting to social networks;
  • Making continued use of social media platforms to directly engage constituents;
  • Using social media platforms as “virtual surveys” of constituent sentiment and gauging feedback from the surveys; and
  • Leveraging ordinary citizens’ use of social media to persuade the electorate.

It is 2018 and Congress should view social media that has greater benefits as an electioneering tool if it is not regulated. From a regulatory perspective, there is no economic or legal justification for regulating social media as a public utility.

Trump’s political calculus on Moore

Social media’s reeling over Alabamans support for Roy Moore increased with a firm endorsement from President Donald J. Trump. Mr Moore’s bid to fill the U.S. Senate seat vacated by now Attorney General Jeff Sessions has been rocked by allegations of sexual misconduct with teen-aged girls almost four decades ago. The detailed analysis driven by in-depth reporting by The Washington Post should have thrown Mr Moore into the woodshed for a classic Alabama woodshed whooping, but recent polling, some of it questionable according to Politico, has Mr Moore still in the race.

This is after all the South, and Southerners have been showing a propensity to turn the eyeballs away from bad behavior if it means voting in a candidate that promotes good Christian values, such as keeping a replica of stone tablets with the Ten Commandments inscribed in your courtroom.

Mr Trump doesn’t have room to spare in the Senate where a couple moderate leaning types have shown some gumption for stirring up the legislative pot especially on health care and tax law reform. He will need as many reliable, steady Republican senators as he can get.

Also, a win here would send a signal that for all the reports that Mr Trump has lost some of his base, Mr Trump will have significant support going into the 2019-2020 campaign season.

A Moore win should also send a signal to the Democrats. Special counsel investigations and congressional hearings on Russia may not be enough to derail Mr Trump’s agenda much less get him out of office in 2020. They will still have to knock on doors in flyover country, an initiative that I have yet to sense any enthusiasm for from progressives.