Why we don't need Internet rights but do need a level playing field

On July 2 this year a manifesto appeared called the "Declaration of Internet Freedom," which you can find at internetdeclaration.org/ (I quote the URL for reasons that will be clear in a minute).

BACKGROUND: Groups release dueling Internet freedom declarations

This document is short and, after the preamble, argues for a free and open Internet based on five basic principles:

"We believe that a free and open Internet can bring about a better world. To keep the Internet free and open, we call on communities, industries and countries to recognize these principles. We believe that they will help to bring about more creativity, more innovation and more open societies.

"We are joining an international movement to defend our freedoms because we believe that they are worth fighting for.

"Let's discuss these principles -- agree or disagree with them, debate them, translate them, make them your own and broaden the discussion with your community -- as only the Internet can make possible.

"Join us in keeping the Internet free and open.

"DECLARATION

"Expression: Don't censor the Internet.

"Access: Promote universal access to fast and affordable networks.

"Openness: Keep the Internet an open network where everyone is free to connect, communicate, write, read, watch, speak, listen, learn, create and innovate.

"Innovation: Protect the freedom to innovate and create without permission. Don't block new technologies, and don't punish innovators for their users' actions.

"Privacy: Protect privacy and defend everyone's ability to control how their data and devices are used."

There was huge support for this declaration from the likes of the American Civil Liberties Union, CREDO, the Electronic Frontier Foundation and the Free Press, along with hundreds of other organizations and individuals, including luminaries such as John Perry Barlow, Vinton Cerf, Cory Doctorow, Neil Gaiman, Dan Gillmor, Sen. Ron Wyden and Jonathan Zittrain.

On the other hand, several commentators who were not sold on the pitch pointed out some glaring problems. For example, Elie Mystal in a Forbes posting titled "'Declaration of Internet Freedom' Contemplates No Rights or Freedoms Worth Declaring" commented:

"Where to begin? Oh, I know, who the f*** is 'we'? The Declaration of Independence tells you in the title who the 'we' is: 'The unanimous Declaration of the thirteen United States of America.' In contrast, this net freedom document leaves it to the reader to determine if they are part of the 'we,' or part of some other force that may or may not be opposed to the 'we.'"

Mystal summed up the issue beautifully with "the principles upon which this new medium is governed should be really, really old. Towards that end, Life, Liberty, and the Pursuit of Happiness seems like the only declaration of freedom anybody should ever need."

The "Declaration of Internet Freedom" is hardly the first attempt at such a thing; there have been many others, including: the 1994 "Cyberspace and the American Dream: A Magna Carta for the Knowledge Age" by Esther Dyson, George Gilder, George Keyworth and Alvin Toffler, published by the now-defunct Progress & Freedom Foundation; the 1996 "Declaration of the Independence of Cyberspace" by John Perry Barlow; and the Cato Institute's 2001 "Libertarian Vision for Telecom and High-Technology."

And you can add to that list the even more recent "Digital Bill of Rights" proposed by Rep. Darrell Issa (R-Calif.) and Sen. Ron Wyden (D-Ore.) put forward in June this year which proposed:

1. Freedom -- digital citizens have a right to a free, uncensored internet

2. Openness -- digital citizens have a right to an open, unobstructed internet

3. Equality -- all digital citizens are created equal on the internet

4. Participation -- digital citizens have a right to peaceably participate where and how they choose on the internet

5. Creativity -- digital citizens have a right to create, grow and collaborate on the internet, and be held accountable for what they create

6. Sharing -- digital citizens have a right to freely share their ideas, lawful discoveries and opinions on the internet

7. Accessibility -- digital citizens have a right to access the internet equally, regardless of who they are or where they are

8. Association -- digital citizens have a right to freely associate on the internet

9. Privacy -- digital citizens have a right to privacy on the internet

10. Property -- digital citizens have a right to benefit from what they create, and be secure in their intellectual property on the internet

Adam Thierer, a senior research fellow at the Mercatus Center at George Mason University, writing on Forbes, took a swing at this proposal and, considering the first eight points, trenchantly commented:

"It would be hard to be against any of these things. Luckily, at least here in the United States, we already enjoy all these freedoms thanks to the protections provided by our actual Bill of Rights. We are at liberty to participate where and how we choose, to share and be as creative as we desire, and to associate with whomever we wish. The First Amendment alone secures those rights. Likewise, properly construed, the First Amendment ensures the 'right to a free, uncensored Internet,' it's just that lawmakers often try to evade the Amendment's unambiguous and comprehensive 'Congress shall make no law' prohibition."

Writing on the same topic on The Technology Liberation Front blog, Thierer quoted the Cato Institute's Jim Harper:

"I'm really hoping that nobody living today gets to define the basic principles by which the Internet is ruled. We've got that. It's a neato collection of negative rights, preventing the government from interfering with society's development, whether that development occurs online or off."

All of these forays into defining "rights" for Internet users set the scene for the "Declaration of Internet Freedom."

But, of course, no one wanted to stop there so, trumping the "Declaration of Internet Freedom" ("I'll see your five principles and raise you three more"), along came an alternative but identically named "Declaration of Internet Freedom" published at a URL almost but not quite the same as the other version, namely, "declarationofinternetfreedom.org/" right on the heels of the former.

This one has a decidedly Libertarian bent:

"Humility. First, do no harm. No one can anticipate what the future holds and what tradeoffs will accompany it. Don't meddle in what you don't understand -- and what you can all too easily break, without even seeing what's been lost. Often, government's best response is to do nothing. Competition, disruptive technological change, and criticism from civil society tend to resolve problems better, and faster, than government can.

"Rule of Law. When you must intervene, start small. Regulation and legislation are broad, inflexible, and prone to capture by incumbent firms and entrenched interests. The best kind of 'law' evolves one case at a time, based on simple, economic principles of consumer welfare -- alongside the codes of conduct and practices developed by companies under pressure from competitors and criticism. Worst of all, when regulators act without legal authority, or regulate by intimidation, they undermine the rule of law, no matter how noble their intentions.

"Free Expression. Don't stifle the free flow of information, compel speech, or hold intermediaries (e.g., ISPs, social networks) responsible for the speech they carry. The First Amendment to the U.S. Constitution and Section 230 of the Communications Decency Act together provide an effective basis for reconciling free speech with other values.

"Innovation. Protect the freedom to innovate and create without government's permission, provided others' rights are respected. Don't block -- or mandate -- new technologies. Don't punish innovators for their users' actions.

"Broadband. Government is the greatest obstacle to the emergence of fast and affordable broadband networks. Rather than subsidizing yesterday's networks, free the market to build tomorrow's. End central planning of spectrum and legal barriers to competition.

"Openness. Open systems and networks aren't always better for consumers. 'Closed' systems like the iPhone should be free to compete with more open systems, like Android. Innovation happens at the 'core' of networks, too -- not just at the 'edge.' Let technologies evolve and intervene, if at all, only when an abuse of market power clearly harms consumers.

"Competition. Antitrust is regulation. It's generally preferable to other forms of regulation when grounded in rigorous economic analysis, but even then, it usually fails to foresee what ultimately serves consumer welfare. The monopoly explanation for innovation in business models, corporate structure, and pricing is usually wrong.

"Privacy. Don't coerce private companies to disclose consumers' data. If law enforcement needs private data, they should follow the procedures required by the Fourth Amendment to the U.S. Constitution -- which generally means convincing a court to issue a warrant. Prevent private companies from abusing data about consumers: Punish deception and enforce corporate promises. Develop common law against 'unfair' data practices -- those that cause real harms without countervailing benefits, and where user empowerment is inadequate."

What's overlooked by all of these manifestos is that we're not lacking rights, we're missing a level playing field.

You want a free, unfettered, dynamic market that serves its culture and where rights are upheld? You want an environment in which innovation and commerce can flourish? If you do then you have to have competition; real competition, not a faux marketplace of fat, inefficient, gigantic incumbents who rely on the machines of the law and politics to further their agendas, which mainly concern maximizing profit from swiftly aging infrastructure and who aren't troubled by tedious things like having to actively innovate to win market share.

A marketplace like Internet service provision, dominated as it is by a handful of megacorporations that can spend millions on political lobbying to ensure and maintain their hegemony, isn't one where competition truly exists.

That, I would argue, is what has lead to the recent outbreak of declarations ... they're trying to correct a flawed marketplace.

In a truly competitive market, the issue of Internet rights and freedoms would be easily dealt with by that "neato collection of negative rights" and we could get on with real business and stop writing what are, if the truth be told, unneeded and pointless manifestos.

Gibbs discourses in Ventura, Calif. Your manifesto to gearhead@gibbs.com and follow him on Twitter (@quistuipater) and on Facebook (quistuipater).

Read more about wide area network in Network World's Wide Area Network section.

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