Wednesday, March 20, 2019

The History of Our Future

According to a report in the March 13thedition of Communications Daily, former FCC Chairman Tom Wheeler said something at a recent Brookings Institution event which caught my eye. Mr. Wheeler, now a Visiting Fellow in Governance Studies at Brookings, said: “The rules that have worked for industrial capitalism are no longer sufficient for internet capitalism.”

I take it Mr. Wheeler made the comment, at least in part, in the context of a discussion regarding the release of his new book, "From Gutenberg to Google: The History of Our Future." I like that catchy title. I've ordered the book, and I may well like more than the title when I have a chance to read the book – probably after the FSF Eleventh Annual Telecom Policy Conference on March 26! To be candid, though, while his book is billed as a "history of the future," about which I'm not so sure, based on Mr. Wheeler's history as FCC chairman, I suspect I'll find enough with which to disagree to report back later.

In the meantime, back to the notion that the "rules that have worked for industrial capitalism are no longer sufficient for internet capitalism." I get there is an uneasiness, warranted in my view, with actions and practices of what is often referred to as "Big Tech" or, if you prefer the stock market jargon, the "FAANGs". That would be Facebook, Apple, Amazon, Netflix, and Alphabet's Google. Indeed, at one extreme, Senator Elizabeth Warren has urged the "break up" of Facebook, Google, and Amazon.

At the Brookings event, Communications Daily reports that Mr. Wheeler declared Facebook isn't a neutral carrier of information but instead exercises editorial control over what users see. In other words, he is asserting Facebook is more than a "mere platform" as the company has long maintained. Mr. Wheeler suggests that Facebook should release the open application programing interfaces showing how it gathers and publishes content. To like effect, Senator Lindsey Graham, who happens to be the Chairman of the Senate Judiciary Committee, said just last week that the algorithms used by Facebook and Google should be released and scrutinized for bias.

So, I get the uneasiness that many feel regarding social media's dark side, and I understand the need for Congress and other appropriate public policymakers to address matters such as the privacy and data security practices of Internet providers.

But I get a sense of unease, too, when Mr. Wheeler apparently suggests a new set of doctrines by conjuring up the notion of "internet capitalism." Here's Merriam-Webster's dictionary definition of capitalism:

: an economic system characterized by private or corporate ownership of capital goods, by investments that are determined by private decision, and by prices, production, and the distribution of goods that are determined mainly by competition in a free market

I prefer to stick with accepted precepts and first principles. In my view, we are more likely to get the law and policy right for Internet providers and platforms if we don't abandon basic precepts and first principles. For me, capitalism based largely on private decision-making in free markets is a first principle. Therefore, whatever new restrictions and remedies, if any, that may be needed to deal with today's Internet maladies should be considered in the context of the capitalist framework that has been central to the American experience since the nation's Founding. There is no reason to resort to today's suddenly fashionable socialist frame or perhaps tomorrow's fashionable "internet capitalism."

Now, it is important to emphasize, although there should be no need to do so, that Webster says capitalism is an economic system characterized "mainly" by competition in a free market. I certainly agree. Thus, it is clear that proper regulation of private entities – say, for example, properly formulated privacy regulation and data protection mandates – is not inconsistent with a traditional understanding of capitalism as favoring "competition in a free market" as the default presumption.

For capitalism to function properly – indeed for America's larger experiment as a democratic Republic to thrive – adherence to the rule of law is essential. This leads me to mention one other matter that may cause unease. At the Brookings event, Mr. Wheeler bemoaned the fact that, in his view, the fast pace of technological change is short-circuiting democratic processes so "authoritarians" can offer "slogans instead of solutions." As examples, he held up "The Wall" and "Brexit." Mr. Wheeler is not alone, of course, in raising concerns about how speech is employed – some say "weaponized" – on the Internet. But I worry because some of his words and actions during his FCC tenure supported placing more power in the hands of the government to regulate the content of speech than was warranted.

I don't want to debate the merits of any such particular policies here. Rather, the point I wish to emphasize is that, in addressing any legitimate concerns, adherence to the rule of law means nothing if it does not mean adherence to the First Amendment's free speech guarantee. Just as capitalism doesn't mean there cannot be any regulation, the First Amendment doesn't mean that there cannot be any curtailment of speech whatever. But accepted First Amendment jurisprudence makes clear that any curtailment can only be allowed if the government demonstrates a compelling justification and employs the least restrictive means possible to achieve the asserted interest.

And, above all this, which sadly is often misunderstood: The First Amendment is intended to impose limits on government's power to curtail speech, not to empower government improperly to limit the speech of private parties – and, yes, that includes Internet providers and platforms. In a rule of law regime that protects liberty, there are lines in the Constitution that must not be crossed in the name of some claimed "higher purpose," whether such purpose be in the minds of this or that Congress, President, or particular government administrative agency official.

Well, those are some thoughts provoked by my reading about the Brookings event and about Tom Wheeler's new book, "From Gutenberg to Google: The History of Our Future." Even though I may disagree with parts of it, I bet the book will be a worthwhile read. Mr. Wheeler is a long-standing amateur historian, and whether looking back in history, or forward into the future, it is important to discuss, in a civil fashion, and across all kinds of aisles, the ideas he addresses.

Oh, and finally, speaking of discussing important ideas – that's exactly what we will be doing at the Free State Foundation's Eleventh Annual Telecom Policy Conference on Tuesday, March 26, at the National Press Club. I hope you will join us. We are nearing capacity, though, so please register now if you wish to attend. You may register here, and a flyer listing the speakers is here.