By Gordon Hull
As part of its war on all things done during the Obama administration, the Trump administration is planning to do away with Net Neutrality rules. Those rules, announced in early 2015, established that Internet Service Providers must treat all traffic across their networks equally. Absent such rules, they could favor their own content over that of their competitors, favor content providers who are willing and able to pay extra for faster service, disfavor content that they don’t like (in the only bit of possible karmic justice here, many of them could make it much harder for radical white terrorists to organize online), and so forth. The “FCCorporate” in my title is deliberate, and it’s of course designed to indicate regulatory capture. But it also indicates something particularly insidious: regulatory capture by way of gaslighting. First, a review of net neutrality.
The administration vapidly chants “consumer choice” as an antidote to problems generated by the deregulation of ISP’s. There’s two very good reasons to think that those chants are distractions and not arguments. First, the vast majority of consumers have access to at most one broadband provider. That monopoly provider therefore has no competitor to force it to offer consumer-friendly choices. The entry barrier for providers is very steep, since it requires a vast outlay on physical infrastructure. Thus, absent some sort of radical innovation in how consumers get their internet service, we have no reason to expect the de facto monopolies most consumers live with to change. The second reason is that many of the ISP’s are also content providers. This means that they have an incentive to favor their own content. They also have an incentive to charge more to companies like NetFlix, which can pay, or to smaller entities that can’t but whose views get in the way of corporate content goals. Together, those reasons mean that most consumers can expect a substantially different internet if the Trump FCC gets its way (for a more detailed summary and refutation of the arguments against Net Neutrality, see here; see also this post by Leigh Johnson, comparing Net Neutrality to public health)
The FCC had originally based its opinion on the argument that the Internet is a utility. This is a useful conception, because it focuses both on the importance of the Internet to ordinary people, and because it provides a way to understand how the Internet produces value. Think about water service. The value in having water come out of your faucet is generated at your faucet, when you take a shower or water your tomatoes. If someone is going to innovate in a socially useful way using water, they’re going to do it at the end. The same applies to the electrical grid. All of the socially valuable innovation occurs at the endpoints. Certainly we could design an electrical grid that was designed to favor power companies and providers in spot markets, and argue that this fosters innovation. But we tried that – a deregulated market tends to do just that, and it was in part this deregulation that enabled Enron to create an artificial electricity crisis in California, which it then resolved by price gouging California consumers. Innovative? Sure. Socially beneficial? Not so much.
We’ve been here before on Net Netutrality, so I’ll quote some material I wrote before: as Brett Frischmann, building on the work of scholars like Tim Wu, Jonathan Zittrain and Yochai Benkler, notes, “the benefits of the Internet are generated at the ends. Like a road system, a telecommunications network, an ocean, and basic research, the Internet is socially valuable primarily because of the wide variety of productive activities it facilitates” (336). Or, as Wu – whose work has been tremendously influential – put it more concretely, “for the consumer, that means it will continue to be where new things come from. For business, it remains the easiest place to start a business.” This diversity of activity is directly threatened when ISPs are allowed to pick and choose content they prefer, since they will tend to prefer content that pays them for access.
Republicans have never liked Net Neutrality, so it’s no surprise that Trump administration appointee Ajit Pai would move to dismantle the FCC’s rules. It’s also not clear what will ultimately happen: there are potential legal maneuvers available to block Pai, there is going to be a lot of public outcry about this, and there is already some nascent bipartisan rumbling in Congress (I think it’s best to be pessimistic, given the current administration). What is new this time is perhaps more disturbing. In order for a regulatory agency to issue new (or revoke old) rules, the proposed changes have to go through a public comment period. There is strong evidence that in this case, someone was impersonating real people, and using their names to post anti-neutrality comments on the FCC’s site. That’s right: fake comments. Data scientist Jeff Kao estimates that over 1.3 million anti-neutrality comments were fake, generated by impersonating real people (some of them dead!), and that over 99% of real comments were in favor of keeping neutrality rules. Further, the New York attorney general’s office reports being stonewalled by the FCC in its efforts to investigate what amounts to a massive case of identity theft, and probable massive violation of the Computer Fraud and Abuse Act. (Perhaps we need a to shut down the bogus Kobach Voter Fraud Commission, and replace it with a Comment Fraud Commission, since it’s an effort by somebody aligned with the right to manipulate the democratic process by hijacking the names of real people, some of them dead, for illegitimate purposes).
I wrote a piece for the Conversation a couple of weeks ago that tried to tie Benedict Anderson’s theory of “imagined communities” (which argues that a key component of modern national identity is our ability to use mass media to view ourselves as having something in common) with talk about Internet filter bubbles. My thesis, which is an effort to add some theoretical ballast to the worry that everyone lives in their own, highly curated, universe of facts, was that the latter undermines the former. The more we cocoon into our filter bubbles, the less of the imagined community we have. This is bad for a democratic polity, because it means that different groups of people have wildly different beliefs about what the facts are, and the collapse of general interest intermediaries (to borrow from Cass Sunstein) means that there is no trusted arbiter.
The fake comments to the FCC illustrate the extension of this effort to the administrative rulemaking process. They are sort of like Trump’s recent declaration that the recording of him bragging about assaulting women was “fake,” never mind that he admitted it was real last fall. If reality doesn’t reflect your agenda, use whatever means are at your disposal to gaslight and make reality appear to agree with you. Given the importance of administrative law to the functioning of the modern state, and given the Trump administration’s hostility to the administrative state, this escalation is both predictable and disturbing. It’s predictable because the Trump playbook seems to consist of endless efforts to make reality appear to bend to its agenda. This is the mark of a weak dictator: rather than simply declaring that he is going to enact policies A, B and C no matter what you think, he tries to make it appear that everyone but you thinks A, B and C are fantastic ideas. It’s the same argument that Descartes uses in the Meditations to prove that God cannot be an evil deceiver: the need to deceive is a sign of weakness.
It’s disturbing because, well, it further undermines the ability of our governmental structures to function in a way that anyone can ever trust again (this seems to me to be Steve Bannon’s “Leninist” [sic!] agenda, as best as I can understand it). There’s good reason to distrust elections because of radical gerrymandering and voter suppression. Trump is trying his best to undermine the judiciary. He appointed unqualified cronies to run cabinet-level agencies, with predictable effects. The Administrative Procedures Act, which says that agencies have to follow specific procedures before changing rules willy-nilly, has been an impediment to Bannon’s declared war on the administrative state (and the EPA in particular is trying hard to ignore it). So obviously the next step is to undermine administrative procedures. We now see just how insidious that effort can be: if an administrative rulemaking comment section can be fake, then how do we know that any part of the governmental process is genuine? It’s a wonder Trump didn’t have those inaugural crowd pictures photoshopped. Rookie mistake, apparently.
Recent Comments