Internet Censorship

The Federal Communications Commission (FCC) is poised to add the Internet to its portfolio of regulated industries.

Regulating free speech and every other aspect of our lives, totalitarian government is alive and prospering in America.

Totalitarian:

1. of or pertaining to a centralized government that does not tolerate parties of differing opinion and that exercises dictatorial control over many aspects of life.
2. exercising control over the freedom, will, or thought of others; authoritarian; autocratic.

Homeland Security Violating Due Process and Free Speech In Internet Power Grab?

December 2, 2010

OpenMarket.org - Law professor David Post notes that the Department of Homeland Security is seizing entire domain names, not to protect national security, but to enforce run-of-the-mill copyrights. He calls this an unconstitutional due process violation, noting that:

“80 websites . . . have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral [judge], that anything unlawful is going on at these sites.”

He also notes that Congress has not yet passed a bill that would have granted the federal government the specific authority to seize domain names. (Senator Wyden or Oregon has put a hold on a bill known as COICA, the Combating Online Infringements and Counterfeits Act, that would allow U.S. courts to “seize” domain names belonging to U.S. or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities.)

Earlier, CEI’s Ryan Radia and 40 law professors criticized COICA, arguing that it contained “egregious constitutional infirmities,” and would lead to restrictions on speech that are unconstitutionally overbroad and violate First Amendment rules against prior restraints. Professor Post also argues that the domain-name seizures would be “prior restraints on speech” that are “blatantly unconstitutional.”

CEI also took aim at another restriction on speech. Earlier, Ryan Radia and I criticized California’s overly broad law restricting video games for minors as a First Amendment violation, which is before the Supreme Court in the case of Schwarzenegger v. Entertainment Merchants Association. A bunch of state attorney generals like Connecticut’s Richard Blumenthal (rated the worst attorney general in America by CEI) have filed a brief urging the Supreme Court to uphold the law. (The idea that minors have First Amendment rights is not new, but rather has been recognized for generations, as I explained in my 2007 law review article — the Supreme Court first ruled that the First Amendment applied to the states in the 1925 Gitlow decision, and soon thereafter applied the First Amendment to minors in its 1943 Barnette decision.)

EDITORIAL: Wave Goodbye to Internet Freedom

December 2, 2010

The Washington Times - The Federal Communications Commission (FCC) is poised to add the Internet to its portfolio of regulated industries. The agency's chairman, Julius Genachowski, announced Wednesday that he circulated draft rules he says will "preserve the freedom and openness of the Internet." No statement could better reflect the gulf between the rhetoric and the reality of Obama administration policies.

With a straight face, Mr. Genachowski suggested that government red tape will increase the "freedom" of online services that have flourished because bureaucratic busybodies have been blocked from tinkering with the Web. Ordinarily, it would be appropriate at this point to supply an example from the proposed regulations illustrating the problem. Mr. Genachowski's draft document has over 550 footnotes and is stamped "non-public, for internal use only" to ensure nobody outside the agency sees it until the rules are approved in a scheduled Dec. 21 vote. So much for "openness."

The issue of "net neutrality" is nothing new, but the increasing popularity of online movie streaming services like Netflix have highlighted an area of potential concern. When someone watches a film over the Internet, especially in high definition, the maximum available capacity of the user's connection is used. Think, for example, of the problems that would arise at the water works if everyone decided to turn on their faucets and take a shower simultaneously. Internet providers are beginning to see the same strain on their networks.

In some cases, heavy use of this sort slows the Web experience for everyone sharing the same lines. That has prompted some cable Internet providers to consider either charging the heavy users more or limiting access to the "problematic" services. Of course, if cinema buffs find themselves cut off from their favorite service, they're going to be mad. If companies don't act, they're just as likely to find irate customers who don't want their experience bogged down by others.

It's not clear why the FCC thinks it needs to intervene in a situation with obvious market solutions. Companies that impose draconian tolls or block services will lose customers. Existing laws already offer a number of protections against anti-competitive behavior, but it's not clear under what law Mr. Genachowski thinks he can stick his nose into the businesses that comprise the Internet. The FCC regulates broadcast television and radio because the government granted each station exclusive access to a slice of the airwaves. Likewise when Ma Bell accepted a monopoly deal from Uncle Sam, it came with regulatory strings attached.

No such rationale applies online, especially because bipartisan majorities in Congress have insisted on maintaining a hands-off policy. A federal appeals court confirmed this in April by striking down the FCC's last attempt in this arena.

"That was sort of like the quarterback being sacked for a 20-yard loss," FCC Commissioner Robert M. McDowell told The Washington Times. "And now the team is about to run the exact same play. ... In order for the FCC to do this, it needs for Congress to give it explicit statutory authority to do so."

Freedom and openness should continue to be the governing principles of the Internet. That's why Mr. Genachowski's proposal should be rejected and Congress should make it even more clear that the FCC should stop trying to expand its regulatory empire.