I just had a chance over the Independence Day weekend to read FCC Commissioner Robert McDowell’s address, “Broadband for All: A Networked and Prosperous Society” which was delivered on June 27 in Stockholm. I heartily commend it to you. And as you will shortly see, while the speech is an important read at any time, it was entirely fitting to read the address on July 4th.
Commissioner McDowell’s address is about the power of the Internet and the power of governments, and what ought to be the proper relationship between the two. Not only in this country, but around the globe. Referring to the Internet, McDowell declares: “The power of competition, private sector leadership and regulatory liberalization has wrought a wonderful explosion of entrepreneurial brilliance, economic growth and political change.”
According to McDowell, “deregulation has produced not only increased transmission capacity but falling costs as well.” This is of more than mere academic interest. What it means is that:
“As the costs of computing power and transmission decrease, more people have the opportunity to own these transforming technologies and become more empowered than at any other time in human history. This transformation is not only vital to the advancement of human rights, but to the reduction of poverty as well. Each day, new studies prove that the proliferation of communications technologies spurs efficiencies and economic growth.”
No one really doubts the truth of the above statement. It is the relationship between the power of the Internet and the exercise of government power that engenders more controversy. For there are some who look to government to enable and promote “more” or “better” Internet speech, or to ensure “fairness” or “balance” for Internet users, or to enforce “non-discrimination” mandates. There are others, like Commissioner McDowell and myself, who believe that, at least absent a demonstrable market failure, governments should not interfere with, or exert control over, private sector Internet providers.
It is difficult to put the matter better than McDowell did in Stockholm:
“Perhaps the most important lesson here is that as we look across the globe, it is state interference with the ’Net that has been undermining liberty, not private sector mischief. Government control of the Internet is antithetical to the entire notion and architecture of the Internet itself. By definition, the Internet is decentralized and defies authoritarian top-down control – be that technical control, political control or both. In fact, its very structure is helping to shape governments in its image.”
We all know about governments around the world that have tried, sometimes successfully for a while, sometimes not, to control the Net in order to suppress the freedom of their people. No need for recitations here.
Without suggesting or even implying that the adoption last December of net neutrality regulations by the FCC places the United States in league with countries like China, Iran, and Syria that affirmatively interfere with their citizens’ use of the Internet, I do suggest that, in the absence of a market failure or evidence of abusive practices, it was wrong for the FCC to adopt new regulations arrogating to itself the power to control important aspects of private Internet providers’ offerings. And, as I have written often, I believe, as a matter of law, this assertion of government control by the FCC likely violates the First Amendment. Here is just one early piece, “Net Neutrality Mandates: Neutering the First Amendment in the Digital Age.”
It is not necessary to suggest – and I don’t – that the United States is in the league of the world’s offender nations to make the obvious counterpoint: America should lead the world, not follow, in promoting the fundamental idea that the power of the Internet should not be stifled by government power over the Internet. And, of course, the FCC’s role, and the way it sees itself, is important here.
On this score, Commissioner McDowell had this to say: “To me, the core mission of the FCC is to promote freedom, especially the freedom of speech – or the freedom to communicate.”
You don’t have to try to square Commissioner McDowell’s sentiment with a parsing of the Communications Act’s provisions to appreciate that the FCC ought to understand its role similarly in today’s digital environment. Indeed, the freedom-enabling power of the digital revolution ought to compel this free speech-centered view of the FCC mission – a view in which the FCC comes to appreciate that the First Amendment was adopted by the Founders to protect speech from abridgement by government, not to grant power to the government to protect us from private speech restraints.
Speaking of the Founders and revolutions brings me back to the Fourth of July just celebrated. In my Independence Day message, I focused on some of the natural law antecedents to Jefferson’s Declaration of Independence. In his famous 1821 letter to John Adams, nearly a half-century after the Declaration, Jefferson wrote: "The flames kindled on the 4 of July 1776, have spread over too much of the globe to be extinguished by the feeble engines of despotism; on the contrary, they will consume these engines and all who work them."
Commissioner McDowell’s Stockholm speech is in the worthy tradition of carrying forward the Founders’ freedom message to our Internet age, and spreading the flames kindled in 1776 around the globe.
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