Why Conservatives Must Heed Congressman Issa’s Call

In yesterday’s Atlantic interview, Republican Congressman Darrell Issa issued a conservative call to action on Internet policy: “The tech world needs us.” He’s right. Companies seeking government benefits and progressive advocates seeking increased government control are driving the Internet policy agenda – and they are winning. Government control of communications is Dictatorship 101, yet conservatives have been largely absent from the key technology policy debates that are shaping our communications future. To preserve the ability to innovate without the permission of “kings, presidents, and voting,” conservatives must heed Issa’s call to defend the Internet from government control.

Where Have Conservatives Been?

Conservatives have failed to perceive the nature and extent of the threat to Internet freedom. Despite evergreen debate regarding the Internet’s invention, the catalyst for its commercial development was bipartisan privatization and deregulation. Communications technologies have been heavily regulated in the United States since 1934, when Congress created the Federal Communications Commission (FCC). Internet protocols and mobile communications technologies were both invented in the 1960s, and were subject to government regulation and control similar to traditional communications services until the 1990s, when they were largely deregulated during the Democratic Clinton Administration. Mobile service was deregulated in 1993, the National Science Foundation privatized the Internet backbone in 1995, and Congress declared that the Internet would not be subject to FCC regulation in 1996. When Congress deregulated mobile service providers, President Clinton said, “This plan creates the infrastructure to develop the most advanced commercial wireless communication networks the world has ever known. It will allow an industry to grow by tens of billions of dollars by the end of the decade, producing hundreds of thousands of new high-skilled, high-wage jobs.”

The next decade proved President Clinton was right about deregulation. From 2000 to 2010, the percentage of households with access to a broadband Internet connection jumped from four to 68, and the percentage of the population with mobile connections jumped from 39 to 93. The United States has approximately two-thirds of all 4G LTE subscribers in the world, and the two dominant mobile-operating systems, iOS and Android, are made in the USA. While market-based Internet and mobile communications services grew, services subject to extensive government regulation declined. The percentage of residential households with landline telephone subscriptions fell from 94 to 77, and the percentage of households that watch television over the air fell from 21 to 14.

This evidence demonstrated that market-based policies originally developed by Democrats in the 1990s were working. At that time, there was a largely bipartisan consensus that government intervention in the communications market was unnecessary absent evidence of a market failure. Congress recognized in 1996 that Communications markets were transitioning from an analog era dominated by the Ma Bell telephone monopoly and the cable-video monopoly to a converged digital era featuring competing communications platforms with wireless mobility. The deregulatory policies enacted in the 1990s and extended by Republicans in the 2000s were intended to encourage the transition to an all-IP world governed by market competition rather than government fiat. As the transition accelerated during the 2000s, conservative policymakers turned to other issues. Absent evidence of a market failure, there was nothing for them to do.

The New Progressive Narrative

Some progressives never embraced the Clinton-era bipartisan consensus in favor of deregulatory communications policies, and the extension of these policies in the Bush-era enflamed their opposition. The success of the free market is a threat to progressives who prefer heavy-handed government regulation to the growth and innovation encouraged by the creative destruction inherent in free markets. For the past decade, these advocates have been hard at work developing a technology narrative that would support extensive Internet regulation while appealing to centrists. That narrative, which began with “net neutrality” and has been rebranded “Internet freedom,” uses the language of conservatism (they “preserve” the open Internet), the language of liberty (they defend Internet “freedom”), the language of markets (they promote “competition”), and the language of modernization (they encourage “innovation”) in vague, sweeping principles.

It is the application of these principles in practice that has alerted conservatives to the threat of unlimited government intervention in communications. The turning point was the adoption of net-neutrality rules by the FCC in 2010, which addressed a 2008 FCC order finding that Comcast had acted anticompetitively when it blocked bit torrent without notice. The FCC’s net-neutrality rules, however, were not based on competitive concerns or limited to content-blocking. The FCC dictated that Internet service providers transmit the traffic of content providers for free and recoup their network costs solely from their subscribers irrespective of the level of competition. According to the FCC, the “threats” to Internet openness that its rules are intended to address “do not depend upon broadband providers having market power with respect to end users.”

It was only then that conservatives realized progressives weren’t playing by the same set of rules anymore. In the FCC proceeding, conservative advocates had focused their net neutrality arguments on the level of competition among Internet service providers. In a single stroke, the FCC’s net neutrality order dismissed the earlier bipartisan agreement limiting government regulation of communications in the absence of market failure, which rendered competition irrelevant. Worse still, the FCC did not articulate a new principle for limiting its intervention in communications markets. The new progressive strategy to increase government control of communications by coopting conservative language had scored a massive victory. In 2010, the last remnants of government regulatory restraint were swept away.

Opening the Floodgates

The unintended consequences of the FCC’s new regulatory approach appeared swiftly. By signaling the end of the bipartisan agreement against Internet regulation, the FCC’s order opened the floodgates for additional government interference. New legislative and regulatory initiatives to reign in the free market for Internet services began popping up everywhere.

The Stop Online Piracy Act (SOPA), introduced in late 2011, is one of these new initiatives and the reason Issa became so engaged in Internet policy. Ironically, the same progressives that advocated for net neutrality rules were among the most vociferous opponents of SOPA, but this time, they weren’t alone. Conservatives and centrists joined hands with progressives to oppose SOPA in a redux of the earlier bipartisan agreement opposing Internet regulation. This bipartisan opposition gave the anti-SOPA movement the kind of mainstream momentum that net neutrality always lacked, which made it appear that, once again, we could unite in our opposition to government interference in the Internet.

What Does “Internet Freedom” Mean?

After SOPA, other battles in the fight for Internet freedom started breaking out everywhere, but attempts to unify left and right crumbled almost immediately. Since Issa published his draft Digital Citizen’s Bill of Rights, three groups involved in the fight against SOPA have issued three very different statements on Internet freedom. On July 2, two groups published self-styled “Declarations of Internet Freedom.” One was issued by a group of progressive and privacy organizations (the “Progressive Declaration”), and another (the ” Free Market Declaration”) was issued by a group of libertarian and free market organizations (disclaimer: including the Competitive Enterprise Institute where i work). The same week, on July 5, the Campaign for Liberty published its own manifesto on Internet freedom entitled “The Technology Revolution.” If that weren’t enough, we now have the Internet Defense League, which is literally using a “cat signal” (rather than a bat signal) to warn of impending threats to the Internet.

Individuals and organizations have already begun joining these groups, but I get the sense that many want an answer to Country Joe’s classic question about the Vietnam War, “And it’s one, two, three, what are we fighting for?” If you want people to fight for Internet freedom, you need clearly defined goals (see step one in “How to Start a Revolution”) or, as Country Joe sang, many people won’t give a damn.

So what are we fighting for? Despite the great coming together in opposition to SOPA, the answer to that question still depends largely on whom you ask. Both conservatives and progressives believe the Internet should remain free. But they have very different views about the potential threats to Internet freedom, which is what tends to drive disagreements on policy.

Conservatives generally believe that governments are the primary threat to Internet freedom. The Internet became a global engine of economic growth, political discourse, and cultural transformation without centralized governance of its technologies or access policies. The highly decentralized nature of the Internet means that no single individual or company can dictate its future. Even the wealthiest private company in the world cannot force people to buy its products and services, prevent people from buying the products or services of its competitors, levy fines and taxes on the people, send people to prison, or declare war. Governments have the power to do all of these things, and governments around the world have begun tightening their grip on the Internet. The United Nations is addressing its jurisdiction to regulate cross-border interconnection of the Internet at a meeting this December in Dubai. The Chinese government unveiled new Internet regulations last month that would subject the country’s social networking and self-publishing sites to increased state monitoring. And, in the United States, the government has dictated Internet business models, proposed mandatory technical standards, and asserted the ability to seize control of the Internet in times of emergency.

Conservatives also believe that the core principles that have guided our nation from its inception are as applicable to the Internet age as they were in the time of King George III. The laws of property, contract, and tort, and the government limitations embodied in our Constitution offer the protection the Internet needs to thrive while providing opportunities for experimentation and innovation without asking for government permission. The people must first attempt to solve whatever new challenges the Internet presents through free markets, not prescriptive government intervention, or the freedom to innovate will be lost.

Progressives generally believe corporations and property owners are equally as dangerous to the Internet as the government. In their view, regulation is necessary because government is the only guarantor against private threats to Internet freedom. Their ultimate goal is for the government to treat the Internet as a public utility subject to the same 1930s-style regulations that supported the Ma Bell telephone monopoly for decades. That’s why progressive advocates often analogize the Internet to public utilities like the electricity grid, waterworks, roadways, and the analog telephone system.

From the conservative perspective, asking the government to regulate the Internet as a utility is like asking the fox to guard the henhouse. Traditional utilities offered commodities with no distinguishing characteristics. The government cannot directly influence political dialog through the delivery of water. Even the analog telephone network, which transmitted the human voice, offered no opportunity for the government to directly influence the speech generated by its users (other than to block it entirely). The critical difference for the Internet is that it exists primarily to support freedom of expression through every form of communications, including the types of communications that form the basis of political campaigns. Relying on the government to regulate corporate “censorship” would inevitably (and unintentionally) give the government control of our primary means of expression, including political expression. That’s why conservatives consider the Internet more analogous to the press than a public utility, though its diversity renders it difficult to categorize neatly.

Why the Tech World Needs Conservatives

The differences between progressives and conservatives on Internet freedom illustrate why tech companies need conservatives to engage on Internet policy. Internet companies that supported the imposition of net neutrality regulations on Internet service providers are corporations too and are now bigger than the network owners. They are facing multiple government antitrust, privacy, and other investigations from well intentioned, but destructive, government bureaucrats. Conservatives need to lend their voices and views to these issues and form alliances of stakeholders who recognize that regulation for one ultimately leads to regulation for all.