Blog of Rights

Phony Grassroots Group Launches Smear Campaign Against FCC Action to Preserve Open Internet

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project at 5:47pm

An outfit called Americans for Prosperity (AFP) has announced the launch of a $1.4 million advertising campaign attacking FCC Chairman Julius Genachowski's recently announced steps to preserve neutrality on the Internet. (Check out our coalition partner's net neutrality primer for a refresher on the issue).

The message of the well-funded ad campaign is that the government wants to "take over" the Internet.

This is a flat-out lie.

It seems pretty clear that AFP is acting on behalf of some deep-pocketed corporate masters. To sincerely believe that net neutrality is some kind of ominous government takeover of the Internet, you have to have a very naïve faith in corporate America, and an equally naïve and simplistic belief that the government can never do any good.

AFP suggests that with the FCC's proposed steps, we're in for some radical change. But net neutrality is something that has always existed. It was the situation when the Internet grew into a worldwide phenomenon through dial-up connections. Although companies have tried to commit abuses in a number of cases (see the examples we outline starting on page 14 of this testimony), net neutrality is mostly the de facto status quo now — but only because of the constant, unrelenting political attention and pressure that has been brought to bear on the issue, which has kept the telecoms mostly honest.

AFP's message of a "government takeover" falsely implies that the government is seeking to interfere with the content of the Internet. In fact, unlike the telecoms, the government is prevented by the First Amendment from interfering with online content. There are times when the government threatens to interfere with the internet — for example through censorship or content filtering. We at the ACLU stand second to none when it comes to keeping the government's hands off the content of the Internet. If we thought that net neutrality threatened to allow the government to get anywhere near "taking over" the Internet, believe me, the world would be hearing about it from us.

But it's simply naïve to think that government is the only large organization capable of interfering with the Internet. The big telecoms that control our on-ramps onto the network have both the financial incentive and the technological ability to interfere with how people use the Internet. And often, the ability to do so in secret. Why would anyone entrust the health of the Internet to faith that these companies will voluntarily decide not to seek profits by mucking around with people's Internet traffic? It's naïve to trust our economic well-being and freedom to the self-restraint of large companies, which will seek profits anywhere they can find them, unless barred by law.

In fact, the FCC is just seeking to protect access to the market — the on-ramps that we all depend upon to get to the online marketplace of goods and ideas. Imagine, for example, that a city awards a company a charter to build a bridge across a river and gives the company the right to collect a toll. (In fact, some of the earliest corporations in America were founded just for this purpose). But then the company begins meddling with the people and goods that cross the bridge, charging different prices, making some people wait longer, and forcing businesses and individuals to strike individual bargains with the bridge keeper. For example, a farmer with inferior produce gains an advantage in the downtown farmer's market because he has gained favor with the bridge-keeper and can bring his vegetables across more cheaply. To avoid abuses of power by the bridge-keeper, the city declares the bridge a "common carrier" — a "bridge neutrality" rule that says it can still charge a toll but cannot discriminate among those who pass. That action doesn't threaten markets, it protects them and keeps them from being distorted.

Unless you think that A) competition among bridge-keepers is sufficient to keep these dynamics in check, and B) competition-driven innovation in bridge toll collection will produce social benefits that exceed the potential distortion of other markets such as the farmer's market, then it would be crazy not to impose this rule. Most of the time, neither condition is true. Americans have always regulated companies that are in that position, usually through common carrier laws, which is what the FCC wants to move toward applying to the Internet again (as it did in the years of dial-up access).

This is not about whether you believe in free markets vs. regulation. Because of their unique position, some companies in American history have always found themselves in position to control access to markets. A company that owns a bridge or other right-of-way, a railroad, a telephone line, or yes one that controls the on-ramps to the Internet, is faced with the temptation of making easy money — not by competing in the marketplace, but by exploiting its control over access to marketplaces.

AFP is peddling quite a tale, with the government as a storybook villain and corporations as trustworthy heroes. Hopefully enough Americans possess a more sophisticated understanding of the strengths and weaknesses of both government and large companies, and do not fall for it.

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