A nation divided cannot stand.
America’s Internet policy is so badly divided that America’s national security struggles to stand firm.
The U.S. Government’s outdated, out of control, Internet policy dictates digital division and delivers digital disunion and disorder.
Abraham Lincoln’s most famous speech shared the timeless truth and wisdom that “a house divided against itself cannot stand” when he stood up for what was, and is, right – freedom and equality for all people, not just for the favored.
Much more than most appreciate, U.S. Internet policy has de facto partitioned America legally into separate online and offline worlds. That may have made sense in the 1990’s when the Internet was nascent, but now when the Internet is pervasively everywhere we live, work, and play, it’s not only “disruptive,” but divisive and destructive too.
Having a Wild West U.S. Internet policy -- that legally partitions Internet companies and activities to be largely above and outside normal Government accountability, law enforcement, and national security -- creates an increasingly divided nation, where government favors the anything-goes worst of ourselves on the virtual Wild West Internet, at the direct expense of the best of ourselves in civilized America.
The State of Our Digital Disunion and Disorder
1. Why is no computer, device, network, or entity safe from hacking? (Given that the NSA, CIA, DOD, DOJ, DHS, OPM, White House, Google, Facebook, Amazon, Apple, Microsoft, Yahoo, Equifax, et al have all been hacked; and hackers can hack planes in flight, vehicles on the road, and ships at sea.)
2. Why are there no government incentives, duties, or expectations to write secure computer code, or to make secure equipment, devices, software, or apps – to protect the American public?
3. Why are there no American manufacturers of communications equipment outside Chinese control?
4. Why does Russia find U.S. elections, news, social media, and advertising so easy to manipulate?
5. Why has China’s cyber-espionage theft of U.S. corporations’ intellectual property been allowed to result in “the greatest wealth transfer in history” -- per a former NSA Director?
6. Why can some companies refuse to comply with a court order to divulge a user’s communications when communications companies have been required to do so by law for decades?
7. Why don’t U.S. consumer protection agencies -- the FTC, FCC, CPSC, CFPB, SEC, and CFTC – have legal authority to protect Americans from Internet-originated harms?
8. Why are Americans, and their children, identities, privacy, data, and property not safe, secure, or protected online in America?
9. Why is U.S. Internet policy – that de facto dictates free, fast, and convenient, over privacy, security, and property protection, and that produces winner-take-all outcomes and single-points-of-failure for information, social, and ecommerce -- not considered “U.S. Cyber-Defeatism Policy” for how it makes America so easy for China, Russia, ISIL, Iran, and North Korea to hack, exploit and disrupt?
10. Why aren’t Congress and the Executive Branch asking: what is Government doing that thwarts the U.S. Government’s core mission of ensuring national security and the safety of Americans and their property – so they can stop doing it?
The Root Cause of America’s Sabotage of U.S. National Security
The root cause of the systemic national security risks enumerated above is America’s outdated and divisive-by-design, Internet-first, industrial policy that is embedded in the 1996 Telecom Act and in the 1998 Global Framework for Electronic Commerce.
The good news is that it can be fixed with legislation. Only ten percent of Congress that voted for this well-intentioned, but now destructive U.S. Internet-first, industrial policy are still in Congress.
Congress in 1996 did three transformative things in the 1996 Telecom Act that made sense then when the Internet was nascent, but don’t when the Internet is pervasive and mature.
It unwittingly, implicitly-exempted some digital communications from national security, law enforcement, and consumer protection duties, which has only become clear with hindsight.
First, the 1996 Telecom Act continued to regulate communications by analog technology: telecom, cable, wireless, radio, TV, and satellite, subject to the 1934 Communications Act core “purpose of national defense… and promoting the safety of life and property with wire and radio communication.”
However, in codifying the FCC’s longstanding, regulatory data-services concept to wisely exclude nascent and emerging computer services from monopoly telephone common carrier regulation, Congress created a new economically-unregulated communication technology in law called “information services,” i.e. digital “interactive computer services,” or the Internet.
Anyone familiar with that provision at the time, knows that no one considered that the “information services” classification meant IBM and others were exempted from their national security and law enforcement duties and responsibilities. However, after 22 years of Wild West Internet policies some companies have come to interpret it to mean just that.
Second, to justify that self-serving interpretation, they point to the Section 230 provision of the Communications Decency Act that was a floor amendment to the Telecom Act and not integral to the policy process surrounding the Telecom Act and its new “information services” classification.
Section 230 states: “It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
Third and importantly, Section 230 also created blanket immunity from civil liability for internet intermediaries’ “interactive computer services” from most whatever may occur on their platforms.
What most people don’t know is that these parts of the law above are what’s left of a provision that passed overwhelmingly as an amendment designed to protect children from sexual exploitation on the Internet. That’s because this central part and impetus of Section 230 to protect children, was struck down by the Supreme Court as a poorly-drafted and overly-broad infringement of free speech.
So what was originally crafted as balanced legislation -- including protections for users and protections for Internet intermediaries -- became one-sided law that only protects bad actors from their victims’ lawsuits.
The quintessential pending example of this divisive Internet policy reckoning is the Internet Association’s strong opposition to the Senate’s pending “Stop Enabling Sex Trafficking Act” (SESTA with 67 co-sponsors) that would amend Section 230 to enable child sex trafficked victims to have their day in court to confront those at Backpage.com who have aided and abetted in their abuse.
The perfect storm combination of 1) unintended information services’ effective exemption from national security and law enforcement cooperation duties; plus 2) the hortatory Section 230 no Internet regulation policy statement; plus 3) Section 230’s powerful and sweeping liability immunity for “interactive computer services;” have established a de facto unaccountable Wild West Internet virtual place that disrupts, divides, and destroys America’s physical civilization.
America is a nation divided, because U.S. Internet policy unwittingly has created disunion and dissension around America’s Constitutional Bill of Rights which affords Americans their freedoms from tyranny, by legitimizing an apparent opposing Wild West Internet freedom to tyrannize others with minimal accountability.
How is America’s National Security Hurt by U.S. Internet Policy Sabotage?
Government-sanctioned unaccountability naturally favors and yields the worst uncivil behaviors and dynamics in people, groups, and entities; and it builds an increasingly larger playpen for America’s enemies to easily and efficiently foment disruption, disrespect, distrust, dissension, disunion, and disorder in America socially, politically, and economically. (Sadly we have learned that a nation divided by competing official conceptions of right and wrong can result in just that.)
Government immunity from liability for harming others, for just one technology and one type of company, hugely advantages and favors what that technology and those intermediary companies do best, and in turn, it hugely disadvantages and disfavors the rest of society and economy that does not exclusively use that technology over others and is not specifically an Internet intermediary.
Simply, government absolving one method and one slice of society and the economy from responsibility and accountability to others, effectively picks them as big winners and everyone else as big losers.
Thus, governmental absolution from accountability inherently advantages and favors:
1. Technology over people, (treating people as products to be sold and users to addict rather than customers to be satisfied and human beings to be respected);
2. Free over paid, (digital advertising business models over transaction or subscription models);
3. Efficiency over effectiveness, (speed, time, and convenience, over privacy, security, and property protection);
4. Monopoly over competition, (Winner-take-all, one-stop-shop, scale efficiency over inefficient, sub-scale, and redundant competitive choice); and
5. Autocracy over democracy, (top-down autocratic algorithmic news, info, and “truth” over bottom-up conversation and competition for ideas and votes.)
Conclusion
America is a nation divided.
An inherently-divisive U.S. Internet policy -- that is sabotaging America’s national security -- is one of the biggest culprits in America’s increasing state of disunion and disorder.
Overseers and policymakers throughout the U.S. Government are either not paying attention or have not been able to see the proverbial forest for the trees here.
U.S. Government policies matter and can’t be just launched and forgotten. They need to be responsibly overseen, and the government’s policy results must be held accountable to the American people over time.
Fortunately, the solution here is especially clear and doable; stop doing what is making America less secure, less united, and less prosperous.
We need bipartisan legislation that: ends the 1996 de facto legal partitioning of America into online and offline worlds; restores equal protection under the law and the Constitution regardless of technology; and reestablishes a fair playing field with equal commercial standards of justice and public safety duties, regardless of technology, industry, or company.
Simply, same thing, same treatment.
Forewarned is forearmed.
***
Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google.
Asymmetric Regulation Harms Series:
Part 1: The Internet Association Proves Extreme U.S. Internet Market Concentration [6-15-17]
Part 2: Why US Antitrust Non-Enforcement Produces Online Winner-Take-All Platforms [6-22-17]
Part 3: Why Aren’t Google Amazon & Facebook’s Winner-Take-All Networks Neutral? [7-11-17]
Part 4: How the Google-Facebook Ad Cartel Harms Advertisers, Publishers & Consumers [7-20-17]
Part 5: Why Amazon and Google Are Two Peas from the Same Monopolist Pod [7-25-17]
Part 6: Google-Facebook Ad Cartel’s Collusion Crushing Competition Comprehensively [8-1-17]
Part 7: How the Internet Cartel Won the Internet and The Internet Competition Myth [8-9-17]
Part 8: Debunking Edge Competition Myth Predicate in FCC Title II Broadband Order [8-21-17]
Part 9: The Power of Facebook, Google & Amazon Is an Issue for Left & Right; BuzzFeed Op-Ed[9-7-17]
Part 10: Google Amazon & Facebook’s Section 230 Immunity Destructive Double Standard [9-18-17]
Part 11: Online-Offline Asymmetric Regulation Is Winner-Take-All Government Policy [9-22-17]
Part 12: CDA Section 230’s Asymmetric Accountability Produces Predictable Problems [10-3-17]
Part 13: Asymmetric Absurdity in Communications Law & Regulation [10-12-17]
Part 14: Google’s Government Influence Nixed Competition for Winner-Take All Results[10-25-17]
Part 15: Google Amazon & Facebook are Standard Monopoly Distribution Networks [11-10-17]
Part 16: Net Neutrality’s Masters of Misdirection[11-28-17]
Part 17: America’s Antitrust Enforcement Credibility Crisis – White Paper [12-12-17]
Part 18: The U.S. Internet Isn’t a Free Market or Competitive It’s Industrial Policy [1-4-18]
Part 19: Remedy for the Government-Sanctioned Monopolies: Google Facebook & Amazon [1-17-18]
Part 20: America Needs a Consumer-First Internet Policy, Not Tech-First[1-24-18]
