FCC-type Regulation of Cyberspace

[tcmay@got.net (Timothy C. May)]

At 9:57 PM 3/14/96, jim bell wrote:

>I think your analysis is absolutely correct.  Despite the fact that fiber
>bandwidth has none of the limitations  of "over the air" communications, the
>government will try to regulate it as if it were.  The underlying danger of
>the CDA, in addition to regulating CONTENT, is that the government is
>setting up precedents to regulate the communications AT ALL, which is
>dangerous to us.

Indeed, the _regulation of content_ is completely separable from the issue
of allocation of bandwidth. The FCC and WARC arrangements for allocation of
bandwidth to broadcasters and other RF spectrum users is not perfect, to my
mind, but at least it does not ostensibly deal with content.

However, conflated with the issue of spectrum allocation has been the
notion that "the public owns the airwaves." I'm not saying the "public"
doesn't in some sense own the airwaves, in that the airwaves are a commons.
But the "public ownership" notion has turned into the pernicious idea that
_content_ ought to be regulated. Thus, if a radio station is too
conservative, too liberal, too corporate, too populist it may "lose its
license." Anyway, I won't debate this point here, as it has been
oft-debated elsewhere.

The danger is that this notion of "public ownership" is being extended in
various ways to things that are *not* resource-limited, such as the
Internet. The whole "information superduperhighway" debate, thankfully on
the back burner now, echoed this FCC-centric point of view.

A better model is that of publishing, a la newspapers and magazines. There
is little "content control" there (with a couple of major exceptions, to be
discussed in a minute), and no talk of how "the public owns the publishing
pages" and hence can control content. The First Amendment is (mostly) still
alive in the publishing arena.

The exceptions are, first, obscenity and the like. Second, articles and
advertisements are regulated in various ways as to the claims that can be
made, the promises, the competitive claims, etc. Third, there are moves
afoot to limit advertisements of tobacco and cigarettes in various
magazines.

(In the U.S., of course, the advertising of cigarettes on television was
banned 25 years ago. Hard liquor ads are also never seen, though I don't
know if this was by FTC or FCC mandate or by consensus. Beer ads may be
next.)

Cigarette ads must carry warning messages.

Now, being a free speech and First Amendment sort of person, I naturally
wonder just what constitutional standing such restrictions, especially in
print, have? Doesn't "Congress shall make no law..." make things pretty
clear?

(No doubt the arguments in favor of restrictions have something to do with
the powers to regulate commerce and/or provide for the general welfare,
blah blah blah. So, how long before the same arguments are used to stop
people from arguing that cigarettes are not harmful, or portraying in
fiction a positive--or at least not negative--image of alchohol,
cigarettes, drugs, suicide, etc.?)

Back to cyberspace. We must be alert for moves to "regulate" cyberspace as
the FCC and related agencies have regulated the RF spectrum, the phone
industry, etc. (The latest incursion is of course the "Internet phone"
imbroglio....given that a user installs a piece of software and then uses
his Internet access exactly as others might, the only enforcement of rules
against phone use would be to outlaw certain types of software which may be
possessed! A serious move indeed.)

Finally, for now, we really should "Just Say No" to the attempts to
regulate our Net access, to regulate our published words, to regulate our
access to offshore services. (When the time comes when America tells its
residents they may not connect to offshore services, then we will have
become what we fought for so many decades.)

And better than "Just Say No," do it by deploying unstoppable technologies.

--Tim May

Boycott "Big Brother Inside" software!
We got computers, we're tapping phone lines, we know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^756839 - 1  | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."