July 10, 2012
By
Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 2:36pm
Ron and Rand Paul’s manifesto on “The Technology Revolution,” released the other day, is unexpectedly incomplete, focusing most of its animus not on government security and police agencies, but on what they call “collectivists,” by which they mean those who advance attempts to “regulate competition, infrastructure, privacy and intellectual property.” I think they mean us.
We agree that the Internet has been an incredible catalyst for individual liberty, and that there are many areas where government interference is inappropriate. We agree that our intellectual property regime has become unbalanced and tilted too far toward ownership interests and away from fair use and freedom. And we have always welcomed and appreciated both Pauls as stalwart allies in support of individual privacy rights and in opposition to the Patriot Act and other excesses of the national security establishment.
But we do not agree that opposing any government protections for individuals online is the way to preserve the internet that we all cherish. For example, when it comes to the areas of privacy protection and network neutrality, we believe the government has a key role to play in protecting the internet. A couple of points in that regard:
• It’s a myth to suggest that the internet is not already regulated. Numerous legal protections govern corporate and individual behavior online just as they do offline, from statutes banning fraud and extortion, to privacy laws such as our wiretapping statutes that ban the interception of electronic communications, to our antitrust laws that prevent competitors from fixing prices. The government has always had a role in protecting fairness online, and in protecting privacy and network neutrality. The question is whether it should do so effectively or not.
• In the area of
network neutrality, we face the threat of monopolistic, profit-obsessed carriers with unlimited technological ability to
edit and manipulate our data streams. But opposition has prevented the government from taking the obvious step of applying a centuries-old, clearly applicable, and well-established body of law—common carrier protections—to internet data. If there were more competition in internet access, as there was in the dial-up era, things might be different, but the broadband market is very concentrated and oligopolistic—and where competition doesn’t restrain companies, it’s appropriate for the government to do so.
• Meanwhile, in addition to egregious government invasions of privacy (which the Pauls do not address in this manifesto), advertising companies are engaged in a furious competition aimed at figuring out how best to
spy on internet users. If government does not act to protect privacy rights, the public interest will be irretrievably harmed and the internet’s value will be significantly eroded over time.
• The Pauls use the term "collectivism" as if it is a dirty word, but it is worth remembering what the internet is: more than anything else, it's a standard. That standard, TCP/IP, allows computers and networks of computers to talk to each other and create the “network of networks” we call the internet. The internet is really a giant agreement—a collective agreement. And, that agreement did not spontaneously emerge out of the free market, but was created by the government.
• Ultimately, opposition to all government protections fails to defend meaningful individual freedom—the right of the individual to seek a shot at a fulfilled life as a democratic citizen. That is the end that lovers of freedom must remain focused upon. To equate freedom with opposition to all forms of regulation is to support an empty shell of a concept, when individuals can be made miserable and their life chances circumscribed by wealthy and powerful interests, just as easily as by government agencies. Meaningful freedom is not advanced by allowing big commercial interests to usurp control over public resources such as the internet, and use their superior power to spy upon and control individuals. As Isaiah Berlin put it, “Freedom for the wolves has often meant death to the sheep.” The internet today is a key tool for individual fulfillment—for accessing knowledge, for communicating with others, for participating in society—which is why keeping it free and open and uncontrolled by any large bureaucracy, public or private, is of special concern.
There is no doubt that there have been many foolish and counterproductive government regulations. But there have also been many that are crucial, and ultimately we must look at them on a case-by-case basis. When government does bad things, it is a result of the flaws all we humans possess, and of the amorality that large bureaucratic organizations often manifest. But both of those apply to companies, the latter especially to big ones such as the telecoms that control our gateways to the Internet, and the advertisers that are devoting all their energy toward figuring out how to most completely spy upon internet users. In such cases, it is not just appropriate for the government to act, but vital.
