isen.blog

I was on the "Justification for Regulation" panel at Susan Crawford's Nethead/Bellhead conference last Tuesday. Even though David Weinberger blogged it better than I actually said it, for the record here are my approximate words:

It is written that Congress shall make no law abridging Freedom of the Press.

Suppose, hypothetically, that Congress passes a law that makes printing a million times more expensive than it should be; would this law be constitutional?

Maybe this law controls the price of printing presses outright. Or maybe it places requirements on printers that only established printing businesses can meet. Or maybe this hypothetical law controls the price of paper, or the price of trees that make paper. Whatever; its effect would make printing a million times more expensive. Would that law be constitutional?

Now suppose that this law made printing presses only two times more expensive. Or 25% more expensive. Would that law be constitutional?

See where I’m going? Now that we’ve established what telecom regulation is, we are only negotiating the price.

Let’s scratch away one more layer. Suppose that Congress has already passed laws that restrict our ability to get new printing press technology as it becomes available. Are these laws unconstitutional? Congress passed these laws. And these laws abridge Freedom of the Press.

When I see Americans struggling with crippled Kilobit access – when Gigabits (not Kilobits, not Megabits -- Gigabits) are deliverable for the same price as our Kilobits – I want to call the police. When I see other abridgements of the Internet’s capabilities – exclusively licensed spectrum, mandatory content flags that dictate device design, asymmetrical access, network address translation, deep packet inspection without a warrant, et cetera – I want to punish the criminals that are responsible.

The Internet puts a printing press in every user’s hands. But the Internet is about more than Freedom of the Press. It is also important to Freedom of Speech. And Freedom of Assembly, because the Internet is especially good at growing groups and supporting group interaction. And, arguably, Freedom of Religion, Due Process and other rights and freedoms.

The duty of Congress and the FCC is nothing less than to remove whatever stands between improvements in Internet technologies and the users of those improvements.
And nothing more.

Michael Powell’s FCC has set a good example with wireless. It has actively promulgated new wireless technologies and new unlicensed uses. This is a step in the right direction. But it is only one step.

Meanwhile, the United States lags the world in mobile technology; and it has fallen to fifteenth or lower in wired broadband penetration. Obsolete copper lines are replaced every day – with more copper. My Macintosh has a Gigabit interface that I can’t use. And 100 Gig technology sits on laboratory benches waiting for customer demand. This is not just wasteful, it is unconstitutional.