The Nebraska Law Review has published an article written by Fred Campbell that explains how the Press Clause of the First Amendment protects the Internet transmission of mass media content from common carrier regulation. The complete article is available HERE.
Haymarket, VA, March 25, 2016 – Fred Campbell, director of Tech Knowledge, issued the following statement regarding Netflix’s admission that its been secretly throttling its wireless video traffic on a discriminatory basis:
“When I first raised concerns about Netflix’s cynical manipulation of Internet traffic flows in this analysis, I thought the FCC would ask Netflix some questions like these. Instead, it was a Canadian regulator who used language from my initial analysis (in this hearing) to ask Netflix whether it was throttling traffic to aid its net neutrality lobbying efforts, and Netflix’s director of global public policy who said, ‘The allegations that we slowed our traffic or otherwise [are] responsible for degrading users’ service are categorically untrue.’
Yesterday, however, staff at the Wall Street Journal reported that Netflix now admits that it has been secretly throttling its video traffic for more than five years in a manner that is patently discriminatory.
Make no mistake, the importance of this revelation for U.S. Internet policy goes well beyond Netflix and the all-too-common practice of corporate hypocrisy in Washington. Policymakers in the U.S. have systematically excluded Netflix and all other “over-the-top” companies from Internet, privacy, and video regulations that would otherwise apply based on the presumption that over-the-top companies lack the incentive or ability to engage in discriminatory or anticompetitive behavior that could harm consumers or competition. Netflix just proved that presumption is dead wrong.
The public policies that govern communications systems should be purposeful, not haphazard. They should be applied in a way that’s even-handed, not in a way that treats one set of industry participants better than another. They should be based on credible, reliable data, not anecdotal evidence offered by large corporations seeking government favors. And when there are credible allegations that a company has secretly engaged in practices that have been deemed harmful to consumers and competition, policymakers should investigate those allegations in good faith, not ignore them.
Now that Netflix has finally admitted the truth, Congress, the FCC, and the FTC should fully investigate Netflix’s secret and discriminatory throttling practices.”
Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.
Federal Communications Commission (FCC) Chairman Tom Wheeler is proposing discriminatory Internet marketing rules — rules that restrict the marketing efforts of Verizon FIOS and other Internet service providers (ISPs) only while giving Google and other big data companies in Silicon Valley an anticompetitive advantage in online advertising. Wheeler claims discriminatory marketing restrictions are intended to protect the privacy of “your data,” including “the websites that a customer visits, how often they visit them, and the amount of time they spend on each website.”
It appears Wheeler didn’t get the memo from the Federal Bureau of Investigation (FBI) and other law enforcement agencies about the law governing privacy and ownership of communications addressing and routing volumes. According to a line of federal court cases dating back to the nineteenth century, users of communications networks don’t have a “justifiable,” “reasonable,” or even a “legitimate expectation of privacy” in that type of data. In fact, it’s not “your” data.
Consumers may have an expectation of privacy in the content of their communications, but that expectation doesn’t reasonably extend to the addresses or volumes of their communications. The federal courts have held that consumers don’t have a legitimate expectation of privacy in the addresses they write on sealed letters and packages sent through the U.S. mail or their weight, the numbers they dial on their telephones or the number of calls they make, or the to/from addresses of their email messages and IP addresses of the websites they visit or the volume of the data transmitted. The Supreme Court has held that an expectation that this type of information should be private “is not one that society is prepared to recognize as ‘reasonable.’” Read More
Washington, DC, March 10, 2016 – Fred Campbell, Director of Tech Knowledge, released the following statement regarding today’s FCC privacy announcement:
Half measures aren’t enough to protect consumer privacy. Sadly, the FCC’s privacy proposal is a half-measure that applies to a limited set of Internet companies that collect a subset of consumer information.
Private consumer information is like any other secret. Even if you only tell a few friends you think you can trust, your secret will likely spread. And the Internet companies the FCC refuses to hold accountable for your privacy — like Google — aren’t your friends. They’re in the business of selling your secrets — secrets so valuable that Google is now the largest company the world has ever known. Yet the FCC plans to exempt Google and the Internet’s other biggest secret-sellers from its new privacy rules. It’s the equivalent of adopting a nuclear weapons ban that applies to everyone except the United States and Russia — the world’s biggest nuclear powers — and claiming the ban will keep the world safe from nuclear attack.
If the FCC were being honest, it would acknowledge that its plan is too limited to protect your Internet privacy in any meaningful way. But the plan could play a meaningful role in cementing Google’s monopoly market power in the secret-selling business by regulating its potential competitors out of that business altogether.
Which begs an important question: When did the FCC decide that Google’s interests and the public interest are the same thing?