February 26, 2015 4:45 PM
The separation of powers doctrine demands that Congress not tolerate unelected federal agencies going it alone and making binding law.
The Federal Communications Commission (FCC), on a party line vote, has elected to impose so-called net neutrality regulation via a reclassification of the formerly lightly regulated Internet under Title II of the Communications Act.
Somehow, we suddenly need government force to protect the freedom we’ve known online, with a 332-page set of rules no one outside the agency has seen.
Thursday's Federal Communications Commission (FCC) net neutrality conceit should trigger the Congress’ replacement of this rogue agency with something that recognize boundaries, something attuned to the future and reality.
Airwave scarcity and public interest concerns are the causes that long presumably justified telecommunications regulation. But thanks to Thursday's FCC vote, the FCC bureaucracy itself undermined those values with a new regime that will inhibit new infrastructure development and ultimately freedom of speech itself.
Under utility-style micromanagement of the Internet, which is what Title II would allow, the agency will be reenergized as a magnet for political cronyism. The “bad guys” or villainous “gatekeepers” according to net neutrality partisans are the Internet service providers.
But ironically, with net neutrality, there's a much greater chance of there still being an AT&T and Comcast 100 years from now since upstart competing and overlapping infrastructures can scarcely cope with the likes of Title II. (Here’s Comcast’s highly promoted advertisement in support of enforceable net neutrality rules.)
February 3, 2015 4:13 PM
Over the decades I’ve spent in this Heart of Darkness (a.k.a., the bowels of American politics), I’ve learned two lessons that have encouraged the steady politicization of the American economy:
- When the right time comes, I’ll take a principled stand (sadly, too often, once you’re no longer in office); and
- Of course, we know the “right” answer is often to liberalize current rules, but that would be politically naïve, so our goal should be to avert even worse rules (but, of course, sacrificing principle rarely assuages those favoring more government control).
And both lessons seem to have been forgotten in the Republican rush to avert the threatened action by FCC Chairman Tom Wheeler to transform the Internet into a federally regulated utility. Senator Thune, Representative Upton, and Representative Walden have proposed a “compromise” bill that would strip the FCC of its purported authority to reinterpret the Communications Act to consider the Internet as a “public” utility.
Unfortunately, their language concedes perhaps the most dangerous part of such a reclassification: removing the freedom of network owners to price their services. Well, actually not quite: the Republicans would remove providers’ ability to price in ways that some view as “discriminatory.” They explicitly mention pricing policies that might result in “throttling” (like congestion-managed toll lanes?), unreasonable “network management” (as decided by whom?), and “paid prioritization” (like that used for just-in-time transportation services by most transport companies?).
But proponents argue if FCC is left alone, its rules might even be worse. And, indeed, they probably will be—but FCC action would be administrative, reversible by a future administration or via inevitable legal challenge. If Congress—led by erstwhile opponents of net neutrality—accedes to forcing the Internet into quasi-utility status, the losses could be permanent.
Those contemplating this action should reflect on the consequences of similar regulation on an earlier network—the railroads. This was America’s first national network, knitting together then small town and rural America into the national economy. Railroads dramatically lowered transportation costs—changing the economy and resulting in growth in some regions, contraction in others.
January 20, 2015 11:05 AM
Technology policy rarely earns more than a brief mention in the President’s annual State of the Union address to Congress. But tonight, when President Obama delivers his seventh address, he’ll lay out his plans for the Internet in greater detail than any President in recent memory. While the President’s tech agenda has its pros and cons, it generally envisions Washington doing more to oversee the Internet and technology markets. For the most part, this is the wrong prescription.
Obama is expected to focus on three tech policy issues: cybersecurity, broadband, and privacy. The President has delivered major speeches on each of these issues in recent days in locales ranging from the Federal Trade Commission down the street from the White House to Cedar Falls Utility in Iowa.
Cybersecurity is in the headlines in the wake of the cyberattack allegedly committed at the behest of the North Korean regime against Sony Pictures Entertainment. Unlike many roles the federal government now attempts to fill, protecting American companies from state-sponsored cyber terrorism is a legitimate governmental function. Therefore, to improve the state of cybersecurity, the President will call for greater coordination between the private sector and the government—including more information sharing about cyber threats between companies and federal agencies.
The approach Obama has outlined is no cybersecurity panacea, but it’s better than doing nothing, provided companies are held to enforceable promises made to their customers about how and when their information will be shared.
January 14, 2015 9:29 AM
With the start of the 114th Congress comes a fresh opportunity to address the challenges created by a broken government. To kick off this new congressional session, the Competitive Enterprise Institute (CEI) recommends numerous reform proposals to strengthen the U.S. economy, increase transparency, and foster fair and open competition instead of favoring special interests.
CEI’s top policy proposals center on substantive regulatory reforms needed to improve America’s economic health. In 2014 alone, 3,541 new regulations hit the books, and the burden is constantly growing. If federal regulations were a country, their cost would amount to the world’s 10th largest economy.
In addition to reining in burdensome regulations, CEI recommends that Congress continue to conduct fundamental oversight to protect Americans from executive overreach. Over the last six years, federal agencies have sought to usurp power from the legislative branch. Congress has a responsibility to demand honesty and accountability from our leaders and defend the rule of law.
Automated Vehicles Update: Big Feature at CES, California Rules Delayed, Georgia Cautious on RegulationJanuary 9, 2015 12:16 PM
It’s been a few months since I last checked in on automated vehicles (AVs), commonly called driverless cars or autonomous vehicles. Below are some developments of note.
- California misses operations and licensing rule deadline. When the California legislature passed its AV bill in 2012, it ordered that the state Department of Motor Vehicles fully implement it by the end of 2014. While the final rules on testing came into effect in September 2014, the agency announced in late December it would not meet the January 1 deadline to implement its AV operations and licensing rules. AV policy observers have been watching the California rollout closely, given that California is the largest state and a first mover, which means other states are likely to follow its lead. Unfortunately, California’s AV statute is proving burdensome for robocar innovators. As written, it requires that a licensed driver be in the driver seat with the ability to retake manual control at any point following a transition period. Some developers are seeking full automation, where there is no ability for drivers to take manual control. To meet the new California testing regulations, Google was recently forced to add a steering wheel to its latest prototype.
- CES showcases vehicle automation. The annual Consumer Electronics Show just wrapped up in Las Vegas. Ford CEO Mark Fields delivered a keynote address discussing his company’s push toward vehicle automation, among other topics. Fields predicted the first generation of automated vehicles will be on the road within five years. My colleague Wayne Crews, who attended CES, worries that some of the AV policy discussions seem to be trending towards public utility–style common carrier regulation, under the unsupported assumption that AVs will be exclusively or even largely fleet vehicles, at least in the current way we tend to think about fleet vehicles. This would be a huge mistake. Brad Templeton, one of the most interesting thinkers on vehicle automation, also attended CES and offers his thoughts on the AVs showcased here, here, and here. Anyone interested in AVs should be sure to follow Brad’s blog for regular updates.
December 17, 2014 3:13 PM
This week we get to say goodbye to the 113th Congress. For those who believe in free markets and individual liberty, it was a doozy. There were some losses, but also some big wins. One victory in particular is worth noting because the battle involved one of the worst aspects of politics: entrenched and connected special interests, versus one of the best aspects: a pro-liberty grassroots uprising of individuals against cronyism.
Like all so-called vices, gambling has always had its foes, from religious leaders who believe it is evil to public health professionals and social advocates worrying exploitation of young, ill, and poor. For the most part, these interests have been unable to stop the demand for or rise in legal gambling throughout the United States. But when one of the world’s richest men says he’ll spend what it takes to ban Internet gambling, all bets are off.
Intrastate online gambling does not violate federal law: that was the conclusion the department of justice came to in 2011 after two years of consideration. So long as the gambling was not sports related, no federal laws prohibited states from allowing online gambling within their borders. Within the next two years three states, Delaware, New Jersey, and Nevada, began offering licensed and regulated online gambling.
Not long after that, in November 2013, Sheldon Adelson—CEO of Sands Casino—announced his plan to stop the spread of legal online gambling in the U.S. Coming from the man who almost single-handedly funded Newt Gingrich’s 2012 presidential campaign and who donates millions more to members of Congress—it was a threat that nobody considered empty.
- December 23, 2011: DOJ declares no federal law preventing intrastate online gambling
- November 2013: Nevada, New Jersey, Delaware offer legal online gambling
- November 2013: Adelson announces Coalition to Stop Internet Gambling
- March 20, 2014: Draft bill written by Adelson’s lobbyist circulated through Congress—on March 26, Sen. Lindsey Graham (R-S.C.) and Rep. Jason Chaffetz (R-Utah) officially introduce the Restoration of America’s Wire Act (S. 2159, H.R. 4301)
July 29, 2014 10:26 AM
Earlier this month, Professor David Begg of Transport Times published a new report on automated transport technology focusing on the potential impacts on London. This is one of the first attempts to apply this new technology to urban areas in a systematic way.
The U.S. Institute of Electrical Engineers has estimated that up to 75 percent of all vehicles will be autonomous by 2040. Automated vehicles are the future but they are also quickly becoming the present. The chief concern among proponents is the potential for burdensome government regulation. It is absolutely critical lawmakers and regulators do not stand in the way of automated vehicles.
In his report, Begg explains, like many others have noted, an issue with this technology is who is to blame when a “robot car” is involved in a collision. He asks, “Who is liable? Is the driver to blame? Is the car maker to blame? Might ‘no fault’ legislation be needed to deal with his problem?”
To be sure, there are very real issues surrounding products liability and insurance. But this is frankly a secondary concern when confronted with the overwhelming evidence that driverless transport will save thousands of lives annually, and so far there is little indication that common law evolution cannot handle the advent of automated vehicles. Yet Begg only mentions these potential accident reductions (over 90 percent of crashes are due to human error) after expressing his speculative concerns.
July 28, 2014 9:58 AM
A recent piece in American Banker magazine explores how Bitcoin and other cryptocurrencies can help the underprivileged, particularly the millions of unbanked people who do not have bank accounts. This is an area where digital currency could do much good.
In fact, the online microfinancing platform Kiva has already begun a peer-to-peer service, known as Kiva Zip, whose model resembles some of the features in Bitcoin. Microfinancing is a form of lending for lower-income people that provides smaller loans than commercial banks are typically able to offer. Kiva Zip’s peer-to-peer structure means that users interact directly with each other, without administrators or other institutions acting as a middleman.
Another service known as Swarm is already proposed to implement crowdfunding based on the Bitcoin protocol. Crowdfunding is a service where persons or companies propose a project or service they wish to develop and create a campaign to solicit funds for development. It is typical for campaigners to offer prize incentives for larger contributions, such as earlier access to the product or other perks.
These new innovations represent just the initial adaptations of the Bitcoin protocol. In order for these technologies and services to continue to develop—and to help people—it is imperative that new regulations not be prematurely implemented. Otherwise, it will not be just Bitcoin businesses that suffer. Those at the bottom of the economic ladder could suffer as well, as they would lose precious opportunities to access capital.
June 26, 2014 10:41 AM
Yesterday, the Supreme Court released its much-awaited decision in ABC v. Aereo. The Court reversed the Second Circuit, holding that Aereo directly infringed the copyrights of broadcast television program owners by publicly performing their works without permission. Justice Breyer, who wrote the opinion for the Court, was joined by five other Justices, including Chief Justice Roberts, Justice Kennedy, and the liberal-leaning bloc. Interestingly, Justice Scalia dissented on textualist grounds, joined by his conservative-leaning colleagues Justice Thomas and Justice Alito.
As this split illustrates, debates about intellectual property often don’t break down along partisan or ideological lines, and the division between the majority and the dissent in Aereo focused entirely on how to interpret the copyright statute, not on the underlying philosophical merits of property rights or policy judgments regarding the costs and benefits of stronger or weaker IP.
The majority, relying on both the legislative history and the text of the Copyright Act of 1976, emphasized that the Act sought to foreclose the workaround by cable companies of broadcasters’ copyrights that the Supreme Court had previously sanctioned in a duo of cases—and that Aereo’s conduct was functionally almost identical to the unauthorized retransmissions by cable companies prior to the 1976 Act.
Justice Scalia dissented on two grounds: first, that the majority based its reading of the statute on legislative history, a practice he opposes as a means of divining a statute’s meaning; and second, that the majority relied on a vague and inapt comparison between Aereo’s allegedly infringing conduct and cable companies’ pre-1976 retransmissions of broadcast network programming.
We argue here, building on our amicus brief and our previous blog post on Aereo, that, regardless of which test applies, Aereo infringes on television program owners’ exclusive right under the Copyright Act to publicly perform their works. Moreover, we argue that the Court’s test in Aereo is far less ambiguous than its critics assert, and that it does not endanger cloud computing services like so many contend.
June 17, 2014 9:23 AM
A story in The New York Times is making the rounds about an Obama administration proposal to clarify the National Highway Traffic Safety Administration's (NHTSA) authority to regulate smartphone navigation apps: the administration supports giving NHTSA this clear authority.
The tech industry is obviously upset, as they should be. But the paranoia underlying the Obama administration's call for burdensome regulation deserves some examination.
As I have noted in the past, the administration has been obsessed with the supposed scourge of cellphones in automobiles, going so far to call on states to enact bans on texting while driving without examining actual crash data. Why? Because the data do not support cell-phone use bans, whether voice communications or texting. The Insurance Institute for Highway Safety found in 2010 that states which enacted texting bans did not see accident claims reductions, speculating that drivers became aware of the ban and associated fines and responded by moving their cell phones further from the windshield to prevent police offers from observing their behavior.
The lack of real-world evidence supporting their position has not dissuaded the Obama administration from pushing aggressive and likely counterproductive policies related to in-car technology and distraction risks.