Patterico's Pontifications


Dan Gillmor Replies to My Post on Net Neutrality, But His Arguments All Fall Flat

Filed under: General — Patterico @ 10:25 pm

Dan Gillmor has replied to my post taking him to task for supporting Net Neutrality. I thank him for retracting his hasty, unfair, and absurd claim that I had “lied” by disagreeing with his views. However, he persists in blindly ignoring the obvious dangerous consequences of his acquiescence in placing regulatory power over the world’s prime medium of communication in the hands of American bureaucrats. Gillmor’s arguments display a disappointing naivete and trust in the central government.

This post shows why he is wrong.

Let’s review again how this all started. Here’s the tweet of mine that Gillmor objected to:

Gillmor tendentiously read this as an accusation that he is either a censor or a fool:

There are only two rational ways to read this. 1. I want the government to regulate the Web, and by extension what people post on it. 2. I want government to regulate the Web, but I’m too dense to understand what that might lead to.

Wrong. There is a third rational way to read it: that Gillmor and his fellow Net Neutrality fans are being naive about the consequences of getting government involved in regulating an increasingly critical medium for speech. Indeed, by the time he presents my tweet, Gillmor himself has already alluded to this third possible reading, earlier in his post:

While I support the commission’s decision, have argued for it, and have publicly worried about the potential unintended consequences, I don’t assume these consequences are inevitable. Frey does.

Absolutely true. So: the following (with the “I” referring to Gillmor, for consistency’s sake) is a third rational way to read my statement:

3. I [Dan Gillmor] want government to regulate the Web, but I don’t assume that this will lead to government attempts to exercise control over content.

That’s what I was saying. Gillmor isn’t dense. The problem isn’t that he hasn’t ever considered the possibility that government might use its new-found powers to control content. It’s that he has considered that possibility, and naively discounts it — because of his typical leftist faith that government Has Our Best Interests at Heart.

In my previous post, I presented the problem in this way:

Consider these two facts, which are happening (in historical terms) at the same time:

  • Newspapers are increasingly reliant on the Internet to communicate with their audience.
  • The FCC this year is assuming regulatory control over the Internet.

Seeing those two facts together should frighten all Americans. With the death of newsprint, the federal government (under the guise of Net Neutrality, which Gillmor supports) is putting regulatory control over the new printing press — the Internet — in the hands of the Federal Communications Commission.

Here’s how Gillmor responds to that:

Is the Internet the new printing press? Sure, and a lot more. Is the FCC assuming regulatory control over the Internet? It is asserting regulatory power over one (relatively) small part, in a small but crucial way. It is working to ensure that the people who create media and other services, using that printing press and other tools, are treated fairly by the cartel of corporate giants that has taken unprecedented control–over how what we create may (or even will) be seen by others who want to see it.

But here’s the problem: they are asserting authority under Title II of the Communications Act. They may be “forbearing” from exercising that full Title II authority now, but if the reclassification survives court scrutiny (and I hope it doesn’t), the powers open to the FCC are vastly greater than the more modest powers they are currently claiming. I listed some of those potential powers in my previous post. They include price controls, tariffs, monitoring, and the use of a vast grant of power to prevent whatever the FCC considers to be “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services.”

I am cynical about government, and in my previous post I set forth chapter and verse to justify that cynicism. I gave the reader several examples from actual history, showing how high-flown phrases like “public interest” and “promoting an open and accurate discussion of political ideas” have been perverted into a justification for rank political thuggery.

How does Gillmor respond to this? Basically, with a paean to citizens’ wonderful ability to petition their government for redress of grievances. Gillmor feeds us frankly statist propaganda about how we are a government “of the people, by the people, for the people.”

Frey hearkens back to the early days of the FCC and its subsequent control over broadcasting to frighten us with the specter of FCC Internet content regulation, citing the commission’s pernicious (we agree again!) regulation over broadcasters’ content through the decades. If there was ever a need for policing televised wardrobe malfunctions in an era of government-limited broadcast outlets–there was not, in my view–it ended when the Internet gave us, in theory, unlimited multidirectional channels of communications.

But Frey, citing a slew [of] heavy-handed government threats and actions against broadcasters, predicts the same is in store for the Internet as a result of Title II reclassification. He’s saying, This is what governments do, and it’ll happen again. (He mistakenly says the FCC has turned the ISPs into utilities, when in fact they’ve been reclassified as “common carriers”–the difference is important and highly relevant in this debate.)

Frey’s argument is a bit like saying government regulations about auto safety, such as requiring seat belts, are likely to lead to the government deciding precisely where you can drive. I suppose that’s possible, but one doesn’t inevitably lead to the other.

Governments don’t always go too far. When they’re “of the people, by the people, for the people,” we have a say in what happens.

The nation’s founders had the right idea when they established freedom of speech, freedom of the press, freedom of assembly, freedom of religion and more in the First Amendment. America hasn’t always lived up to these ideals, which are always under attack from people and organizations who worry about too much freedom. But the FCC decision on net neutrality very much honors the founders’ intent.

The FCC has explicitly said it would apply forbearance (a key word in the legal and regulatory arena), making clear in the rules what it won’t do–which covers the parade of horribles even supporters of Title II fear. (Here’s a Q&A that explains the concept.) And never mind that the public is getting better at understanding what the Internet is and how it works–not to mention increasingly wary of centralized power and downright allergic to government control of what we can read or write.

Let’s unpack that argument. Gillmor and I agree that the FCC has a history of pernicious regulation. We agree that there is no justification for such regulation over the Internet. So far, so good.

Let me deal with his aside that I “mistakenly say[] the FCC has turned the ISPs into utilities.” That’s not exactly what I said; I said they have classified ISPs as utilities. As a matter of legal terminology, it may be more accurate to say that they are being classified as “common carriers” — but Title II regulation, which is what the FCC has proposed, is precisely the sort of regulation that is used for public utilities. For that reason, it is common usage to refer to Title II regulation as “public utility regulation.” For example, the left-center Brookings Institution published a paper in June 2014 titled Regulating Internet Access as a Public Utility: A Boomerang on Tech If It Happens (.pdf), which contains the following passage in its opening paragraphs:

Broadly speaking, public interest and consumer groups, coupled with many in the tech community, want the same (zero) price for all types of online content, regardless of the volume of traffic on each site. The surest legal way to that result, many in this camp believe is for the FCC to accept the federal court’s implicit invitation to impose Title II “public utility style” regulation on Internet access. Understandably, the ISPs oppose that path forward, and so do others who fear that public utility regulation of Internet access – complete with rate filings and FCC approvals, among other requirements – would dampen innovation and investment in more, faster broadband.

So Gillmor is really arguing meaningless semantics here. Gillmor tries to suggest that there is a meaningful distinction between “public utility” regulation and “common carrier” regulation with a link to an Ars Technica piece titled Don’t call them “utility” rules: The FCC’s net neutrality regime, explained. But here again, Gillmor is naively trusting in government “forbearance.” The Ars Technica piece says:

One thing they were clear on: this isn’t “utility-style regulation,” because there will be no rate regulation, Internet service providers (ISPs) won’t have to file tariffs, and there’s no unbundling requirement that would force ISPs to lease network access to competitors.

Yay! Just one problem: Title II regulation empowers the FCC to do all that and more. It’s just that, hey, don’t worry, they’re not proposing to do that! …


In essence, Gillmor and Ars Technica are arguing that we need not take note of the Arabic proverb “If the camel once gets his nose in the tent, his body will soon follow.” Why? Because, silly! The only thing in the tent right now is the camel’s nose!

Let’s continue to unpack Gillmor’s response to my citation of a litany of past instances where government has engaged in thuggish regulatory overreach regarding content. Gillmor’s next argument is to compare Net Neutrality to government regulations requiring seat belts. He says my concern that Net Neutrality leading to content regulation is like seat belt regulations leading to government control over where we drive.

This, again strikes me as naive. Government has a special interest in crushing speech, because speech and ideas have always posed a unique danger to government power. We have a First Amendment precisely because the Founders had a concern about this issue. Moreover, my examples show a logical connection between handing government the power to control the distribution of speech, by granting it a roving power to put up roadblocks to distribution in the name of “the public interest,” and actual instances of such roadblocks being erected. It has happened time and time again. By contrast, Gillmor’s seat belt analogy shows no logical connection between seat belt regulations and control over where people can drive. He cites no historical examples of that general police power leading to that particular type of abuse. His example is so far off base, and so lacking in any historical precedent or logic, as to qualify as a straw man argument.

Then Gillmor gives us a ringing endorsement of our power to affect government, with the lovely idea that government is “of the people, by the people, for the people.” That’s a nice bit of sloganeering, and maybe it seemed like it meant something to the Founders. It might even sound good to fifth graders being fed this propaganda in government-run classrooms. But while a debunking of this notion root and branch is beyond the scope of this post, let me just say that if Dan Gillmor really believes that “we are the ones we have been waiting for” — or whatever other statist drivel substitutes for the notion that government is really there to serve our interests — then he and I are living in two entirely different philosophical camps here.

I’ll give this a shot in a couple of paragraphs. I have long since moved beyond the idea that I have any real say in how our government operates. It strikes me as beyond argument that: 1) my vote will never decide an election, 2) special interests will always outspend and out-talk me in a democracy, 3) the vast majority of voters are totally uninformed, and 4) logical argument cannot possibly hope to persuade voters when they are far more apt to be persuaded by rank greed and plunder. At this point, with the wholesale rejection of the Founders’ system, we fall into two classes: the rulers and the ruled.

The only solution is to lobby for greater aspects of our lives to be decided by the market rather than by government. Unlike government, free-market solutions allow me to vote meaningfully with my dollar. They encourage me to research my options more carefully. They ensure that my dollar vote will actually have an effect on my life. And if I don’t like one option, I actually have a choice. I can spend my dollar elsewhere.

Excuse the harsh language in the next paragraph. But it is necessary.

Fuck this notion that we are the government and the government is us. That is total bullshit. We are the ruled. Period. End of story.

The rest of Gillmor’s argument is a glorious sermon in favor of the wonders of government forbearance. The federal government, apparently, can be trusted to “forbear” from exercising the full range of powers granted to it under Title II.

They’re from the government, and they’re here to help.

Ultimately, Gillmor’s screed about my supposed “falsehoods” is nothing but an articulation of a basic disagreement. He trusts government. I don’t. He thinks government will “forbear” from exercising powers that it can get away with exercising. I don’t. He thinks government getting its mitts on a part of the Internet will improve our lives. I don’t.

Well, it’s an honest disagreement. At least it never occurred to me, even for a second, to call him a liar.

P.S. What is the solution? Shockingly, Gillmor and I agree on a lot of it. One key solution Gillmor proposes:

Require communities to make their rights of way accessible to all competitors, which would help create the conditions for competition, though it wouldn’t undo the unfair advantages the cartel already possesses as a result of its monopoly days.

Now that’s a solution I can get behind. Rather than piling on more government regulation, this solution actually seeks to do away with government impediments to competition arising in the free market. For more along those lines, see this article titled Don’t Blame Big Cable. It’s Local Governments That Choke Broadband Competition.

Again, this is beyond the scope of an already long blog post, but monopolies created by government privilege are abhorrent to me. The solution is to remove the government-given perks and throw open competition to all. People need to recognize that we don’t have a free market for ISPs — so it’s no use complaining about the free market’s failure when the free market was never given a chance.

To recall Harry Browne’s analogy, the government has broken the leg of the free market, and now offers us the crutch of Net Neutrality. We should reject the crutch and destroy government’s ability to break our legs going forward.

There is no political freedom without economic freedom. That is important, so I’ll say it again, louder. There is no political freedom without economic freedom. Net Neutrality puts critical decisions about an increasingly vital medium of communication in the hands of bureaucrats. Short-sighted people are allowing their pique at a handful of ISPs persuade them to put their trust in the very entity that, in the end, always takes away our freedoms.

Don’t be a sucker. Oppose Net Neutrality.

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