Despite the never-ending debate on the question of the role of government in America, there's been a strong tradition of protecting our undisputed, important natural treasures, or taking on great common engineering challenges. Few Americans oppose the policies — many of which originated with Republicans — that bar or limit commercial exploitation of unique places like Yosemite National Park or the Gettysburg battlefield.
Even people who opposed Dwight D. Eisenhower liked the interstate highway system, and John F. Kennedy's most bitter political rival, Richard Nixon, cheered on the astronauts who fulfilled JFK's challenge of landing humans on the moon. President Trump campaigned on creating a massive, long-overdue, national infrastructure project.
So, in the spirit of this grand American tradition, I'm going to propose here a way we can protect the internet, at least in America, from both political whiplash in D.C. and the constant commercial overreach that threatens it. I say we treat the internet as both a unique resource and a great common engineering project, something that merits government protection.
Stop typing that angry, snarky tweet right now, and let me state a few big caveats.
Some up-front caveats
First, I am in no way suggesting any sort of government ownership, management or censorship of the internet. I would abhor any of these, even if they were possible. What I am suggesting is that the government rise above all the death-by-a-thousand-cuts regulations and statutes it passes already about the internet and simply adopt the role of its protector. You know, kind of like an offensive line protecting the quarterback.
The thorny details of what that means would remain to be worked out, but the principle would be that there'd be a legal wall whose sole purpose is to protect the internet so it can flourish naturally.
Second, I am not suggesting some dreamy de-commercialization of the internet. It's too late for that, and it's not consistent with American capitalism anyway. But, in protecting the internet, we'd have to find a balance. For instance, you'd never be able to pave over Yosemite Valley and build condos, but there are plenty of commercial tour companies that will take you there. You couldn't build a McDonald's on the graves of fallen soldiers, but the entire economy of Gettysburg seems pretty much built on the tourism the battlefield attracts. We need a way to protect the resource that enables all the other economic activity.
Third, I have not been living under a rock since November. I'm well aware that the current administration, the current Congressional leadership and the current regulatory agency chiefs would neither want to give up power nor curb business interests. Not to mention that, even in 2017, while many senior federal officials can tweet, way too few really understand the internet.
But administrations and party majorities come and go, though there are plenty of corporate-influenced Democrats too. Times change. And the situation online keeps getting worse, with privacy, security, net neutrality and competition all threatened by everyone from the FCC to telecom companies to data-vacuuming advertisers to the dominant Silicon Valley players and (of course) the trolls. So why not float a proposal to fix it?
Finally, I'm well aware that the internet is global and can't be wholly affected by any one country. But the United States has outsized influence. The net was invented here, the browser was commercialized here, the most important modern PCs and smartphones were developed here, and many, though hardly all, of the most important websites and services are based here. What we do here matters.
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Make a new plan, Stan
So here's the idea. I suggest that Congress pass a broad law setting out the national interest in protecting the internet and the general principles by which that protection would be defined. This wouldn't be one of those famous 1,200-page bills nobody can read. It would be meant as a sort of statutory manifesto.
Then, in that same bill, Congress creates a special, permanent, nonpartisan independent commission, or even a special, narrowly focused court, to adjudicate disputes about internet issues as they arise, by interpreting the law. This would build up a body of precedent. Notice I am not suggesting the writing of any regulations, because this idea aims for the lightest touch possible. This entity would also remove the politically charged, slow-moving, compromised FCC and FTC from internet regulation.
We already have a variety of such narrowly focused or adjudicatory agencies to cover other issues. Just to cite one example, there are special federal courts that only deal in tax matters, trade issues, veterans' claims and more. And some economists have already proposed similar administrative forums for internet claims, modeled after how cable companies resolve carriage disputes.
There's precedent for adjudicatory proceedings on technology issues to have massive consumer and business benefits. One of the most famous was the so-called Carterfone decision in 1968. In that case, the FCC ruled that it was legal for a tiny company, Carter Electronics, to sell a primitive-looking device that patched a two-way radio into the country's landline phone network. The network at the time was owned by the old AT&T monopoly, which had convinced federal authorities to bar any device AT&T didn't itself make from being connected. The dubious reasoning was that such devices might "harm" the vital network.
The FCC not only ruled for Carter, but threw out the ban itself, opening the door first for much better voice phones than the clumsy models AT&T's exclusive hardware affiliate made, and later for dial-up modems, without which the internet revolution would have been at the very least severely delayed.
If you don't like this plan, come up with a better one, or a modified one. But we do need a plan. Every few years, the feds and the courts change direction or fail to answer important questions. And every day, the internet becomes more of a platform for lousy ads, for increasing the power of a few rich companies and for intrusive tracking. It's too important to leave unprotected.
—By Walt Mossberg, Re/code.net.
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