Is the U.S. United on Individual Rights or Internet Forum Shopping? I had a Twitter exchange this week with Harold Feld, Senior Vice President at Public Knowledge, regarding government regulatory jurisdiction over the Internet. The exchange clarified the similarities and the differences in the views on this issue offered by advocates for centralized government regulation of the Internet (in this case, represented by Harold) and advocates for individual rights and free markets (in this case, represented by me). After giving this exchange some thought, I decided the additional clarity justified another post on the issue.

find more info The discussion started when I tweeted about my blog post responding to a Public Knowledge post in which Harold challenged comments made by Representative Lee Terry.

Harold responded with this tweet linking to a blog post he published the same day, which argues that proposals being made at the ITU threaten the future of free expression online.

Although I agree with Harold’s view on the substantive issues at stake, I felt Harold’s response didn’t address the jurisdictional issue raised in my post, which posits that any government exercise of regulatory jurisdiction over the Internet inevitably threatens free expression – even when such jurisdiction is exercised solely by the U.S. government. I replied to Harold with this tweet, which links to a Google post showing that, from July to December 2011, the U.S. government asked Google to remove content more frequently than Russia.

The link had been widely tweeted by the mainstream media, and I thought it contained facts that illustrated the potentially serious unintended consequences of government regulatory intervention in the Internet. Harold’s response surprised me.

I was initially ruffled by what I perceived as an ad hominem attack on my seriousness, and offered a superficial response.

Within moments of hitting “return,” I realized that the conversation would soon devolve into mindless flaming without a more reasoned response. So I attempted to bring the conversation back to the original topic with this tweet.

Harold’s next tweet was the conversation’s last.

This exchange clarifies the yawning schism underlying the joint opposition of central control and free market advocates to the regulation of the Internet by the ITU.

It appears that Public Knowledge doesn’t oppose international regulation of the Internet. It only opposes regulation of the Internet by intergovernmental assemblies that are poised to deny Public Knowledge the outcome it desires. In legal circles, this is known as forum shopping, which is described by Public Knowledge as a “Search for the most favorable venue for a [sic] reaching a legal or policy goal.”

A forum shopping strategy explains why Public Knowledge posted this praise for the adoption of extensive Internet regulations in the Netherlands – with substantive rules Public Knowledge likes – within the same month Public Knowledge “join[ed] members of Congress from both parties and the Obama Administration in opposing international regulation of the Internet.” The jurisdictional difference between the regulatory authority of the Netherlands and the ITU is primarily one of scope, not substance.

Even if a forum shopping strategy works in the short-term, in the long-term, the international community is unlikely to accede to any U.S. effort to have its Internet cake and eat it too. The issues at stake are too fundamental to the Internet’s organic evolution and decentralized structure. Do we believe in free markets governed by the laws of property, contract, and tort? Or do we believe in centralized government control of enterprise and free expression through domestic and international bureaucracies? The world will eventually ask us that question, and when it does, we had better have a more persuasive answer than forum shopping.