Patrick Frey, aka Patterico, and I appear to agree on several things when it comes to government’s role, if any, in assuring freedom of speech by promoting an open Internet. This is progress.

(If you’re spending your valuable time following any of this, here’s his first attack post; then my reply; and now his further response.)

We agree there is currently no genuinely free market in providing Internet access. We agree that it would be great if a free market did exist, and support various measures that would help get us there. And we agree that government, in the form of the Federal Communications Commission, has behaved badly in the past. There’s more, but those are the highlights.

We continue to disagree, firmly, on whether government can play a positive role in helping to ensure free speech on the Internet. Frey is convinced that the FCC’s recent net-neutrality decision is the proverbial camel’s nose under the tent, and that’s that, it seems. In his view, I’m naive to believe it could possibly be different.

Read the hard-core libertarian language in his post to understand where he’s coming from. He loathes government in just about every way. Consent of the governed, he says, is meaningless in modern America (bold lettering in the original):

Fuck this notion that we are the government and the government is us. That is total bullshit. We are the ruled. Period. End of story.

So what is the way forward for Frey? Naturally, the free market, full stop.[1. I like a lot of what libertarians say, but their free-market philosophy seems to go something like this: There’s really no such thing as a monopoly. Even if there is, the market will cure it. Even if the monopoly is so entrenched that the market takes decades to respond, that’s not our problem. Even if the market never responds, we’re all dead in the long run.] Not that we have one or, given the political system he believes we have, any possibility of one. And I’m naive.

Frey would have you believe that our conversation boils down to this basic–though profound–disagreement:

[Gillmor] trusts government. I (Frey) don’t. He thinks government will “forbear” from exercising powers that it can get away with exercising. I don’t. He thinks government getting its mitts on a part of the Internet will improve our lives. I don’t.

Anyone who’s read even a tiny amount of what I’ve written for, oh, the past 20 years or so is surely aware that I do not trust government as a general rule. I don’t trust Big Government, Big Business, Big Anything. I do leave open the possibility that they can (and sometimes do) get it right. This isn’t because they tend to do things based on good will, though sometimes they do. It’s more often because countervailing forces, such as voters, courts, customers, etc., can apply enough pressure to get a better outcome.

We may well need those countervailing forces–checks and balances–in a Title II future, because no one in this debate, least of all me, thinks the FCC’s action was the perfect solution. Its net neutrality ruling was distinctly less bad than the alternative it was floating earlier: handing control over the Internet’s key on-ramps to the rapacious telecommunications cartel that has demonstrated its unfitness to have such control.

We were heading toward control of speech by a cartel that, being businesses, have zero First Amendment obligations. Frey says we’re heading toward control of speech by a cartel of bureaucrats. Because, you see, since the FCC did it with broadcast, they’ll do it with the Internet.

Government, unlike business, actually does have some First Amendment obligations. And the Internet could hardly be more different than the broadcast system that the FCC did regulate poorly in the bad old days. 

The Supreme Court has weighed in, firmly, on the issue of whether the Internet is like broadcast, which was heavily regulated on the (increasingly specious) principle that the airwaves were scarce. Not even close, the court said in a key 1990s ruling about the “Communications Decency Act, which the court mostly tossed out as violating the First Amendment. (I appreciate the reminder of the CDA ruling from Seth Finkelstein, a longtime correspondent, and critic, who has persuaded me I was mistaken on more than one issue over the years.) Key language:

[U]nlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that “[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.” This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.” 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

Maybe some future Supreme Court will totally abandon us, and decide that tight regulation of Internet speech is constitutional. If so, the United States of America, and the Bill of Rights, will have long since become just meaningless ideas. For now, I’ll give some trust to a system where we still have some checks and balances–and work hard to hold Big Government and Big Business accountable. If that makes me terminally naive, so be it.

 

Patrick Frey, aka Patterico, and I appear to agree on several things when it comes to government’s role, if any, in assuring freedom of speech by promoting an open Internet. This is progress.

(If you’re spending your valuable time following any of this, here’s his first attack post; then my reply; and now his further response.)

We agree there is currently no genuinely free market in providing Internet access. We agree that it would be great if a free market did exist, and support various measures that would help get us there. And we agree that government, in the form of the Federal Communications Commission, has behaved badly in the past. There’s more, but those are the highlights.

We continue to disagree, firmly, on whether government can play a positive role in helping to ensure free speech on the Internet. Frey is convinced that the FCC’s recent net-neutrality decision is the proverbial camel’s nose under the tent, and that’s that, it seems. In his view, I’m naive to believe it could possibly be different.

Read the hard-core libertarian language in his post to understand where he’s coming from. He loathes government in just about every way. Consent of the governed, he says, is meaningless in modern America (bold lettering in the original):

Fuck this notion that we are the government and the government is us. That is total bullshit. We are the ruled. Period. End of story.

So what is the way forward for Frey? Naturally, the free market, full stop[1. I like a lot of what libertarians say, but their  free-market philosophy seems to go something like this: There’s really no such thing as a monopoly. Even if there is, the market will cure it. Even if the monopoly is so entrenched that the market takes decades to respond, that’s not our problem. Even if the market never responds, we’re all dead in the long run.] Not that we have one or, given the political system he believes we have, any possibility of one. And I’m naive.

Frey would have you believe that our conversation boils down to this basic–though profound–disagreement:

[Gillmor] trusts government. I (Frey) don’t. He thinks government will “forbear” from exercising powers that it can get away with exercising. I don’t. He thinks government getting its mitts on a part of the Internet will improve our lives. I don’t.

Anyone who’s read even a tiny amount of what I’ve written for, oh, the past 20 years or so is surely aware that I do not trust government as a general rule. I don’t trust Big Government, Big Business, Big Anything. I do leave open the possibility that they can (and sometimes do) get it right. This isn’t because they tend to do things based on good will, though sometimes they do. It’s more often because countervailing forces, such as voters, courts, customers, etc., can apply enough pressure to get a better outcome.

We may well need those countervailing forces–checks and balances–in a Title II future, because no one in this debate, least of all me, thinks the FCC’s action was the perfect solution. Its net neutrality ruling was distinctly less bad than the alternative it was floating earlier: handing control over the Internet’s key on-ramps to the rapacious telecommunications cartel that has demonstrated its unfitness to have such control.

We were heading toward control of speech by a cartel of rapacious companies that had zero First Amendment obligations. Frey says we’re heading toward control of speech by a cartel of bureaucrats. Because, you see, since the FCC did it with broadcast, they’ll do it with the Internet.

Government, unlike business, actually does have some First Amendment obligations. And the Internet could hardly be more different than the broadcast system that the FCC did regulate poorly in the bad old days. 

The Supreme Court has weighed in, firmly, on the issue of whether the Internet is like broadcast, which was heavily regulated on the (increasingly specious) principle that the airwaves were scarce. Not even close, the court said in a key 1990s ruling about the “Communications Decency Act, which the court mostly tossed out as violating the First Amendment. (I appreciate the reminder of the CDA ruling from Seth Finkelstein, a longtime correspondent, and critic, who has persuaded me I was mistaken on more than one issue over the years.) Key language:

[U]nlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. The Government estimates that “[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999.” This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, “the content on the Internet is as diverse as human thought.” 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

Maybe some future Supreme Court will totally abandon us, and decide that tight regulation of Internet speech is constitutional. If so, the United States of America, and the Bill of Rights, will have long since become just meaningless ideas. For now, I’ll give some trust to a system where we still have some checks and balances–and work hard to hold Big Government and Big Business accountable. If that makes me terminally naive, so be it.

 

Patrick Frey, who blogs and tweets under the pseudonym Patterico, picked an odd fight yesterday over what should have been a simple disagreement. In the process he made false statements about what I want to see in telecom/media policy.

First, though, here’s where we do agree: The FCC’s move to reclassify Internet service providers as common carriers could have negative consequences. If Frey posted that on Twitter, I’d retweet him in a heartbeat.

While I support the commission’s decision, have argued for it, and have publicly worried about the potential unintended consequences, I don’t assume these consequences are inevitable. Frey does. But to make his point, he resorted to tactics that surprised me, given my prior respect for his work.

He’s blogged about all this at Patterico.com, in a tendentiously titled post that extends his original false claim. I’m responding to the central points in that blog post, not the irrelevant personal stuff or the “nuance-free slogans and analogies” he barraged me (and his followers) with on Twitter, which once again demonstrates its unfitness for serious conversation. Read it and come back. I’ll wait.

For those of you who didn’t read his post, here’s how Frey picked the fight. A blog post by news industry analyst Ken Doctor about plunging single-copy sales of newspapers led me to tweet that by drastically hiking prices of single copies, newspapers had found a new way to commit suicide.

This led to Frey’s opening salvo:

.@dangillmor Final blow for newspapers: they increasingly rely on the Web, and people like you want the government regulating it. @kdoctor

— (@Patterico) March 14, 2015

There are only two rational ways to read this. 1. I want the government to regulate the Web, and by extension what people post on it. 2. I want government to regulate the Web, but I’m too dense to understand what that might lead to. From his later statements, I gather that he meant the second interpretation. Both are false (never mind conflating the Web and the Internet, which as you’ll see below he did correct). Since I write publicly about telecom policy, and since I’ve respected Frey (and said so in my book We the Media a decade ago), I was flabbergasted.

(I called his tweet a lie, and said I was surprised that he would say such a thing. As he has pointed out, a lie is a deliberate, knowing falsehood. Since I can’t read his mind, I’ve retracted that word. I’ll stick with “false” to describe what he wrote.)

Here’s the meat of Frey’s blog post (bold text in the original):

  • Newspapers are increasingly reliant on the Internet to communicate with their audience.
  • The FCC this year is assuming regulatory control over the Internet.

Seeing those two facts together should frighten all Americans. With the death of newsprint, the federal government (under the guise of Net Neutrality, which Gillmor supports) is putting regulatory control over the new printing press — the Internet — in the hands of the Federal Communications Commission.

Is the Internet the new printing press? Sure, and a lot more. Is the FCC assuming regulatory control over the Internet? It is asserting regulatory power over one (relatively) small part, in a small but crucial way. It is working to ensure that the people who create media and other services, using that printing press and other tools, are treated fairly by the cartel of corporate giants that has taken unprecedented control–over how what we create may (or even will) be seen by others who want to see it.

The promise of the Internet “network of networks” was in its radical decentralization. Innovation and true freedom of expression would originate at the edges of those networks, where we wouldn’t need anyone’s permission to innovate or speak because we were free of centralized control.

The corporate giants that control most of the on-ramps to the fabled information superhighway want the right to decide what bits of information get delivered at what speed and in what order, or if they’ll get delivered at all, to those of us requesting the information. And they insist they’d never, ever abuse that control. (They already have.)

Big Telecom doesn’t operate the 21st Century printing presses. You and I do. Big Telecom isn’t the Internet; it is part of the Internet. But it has become the antithesis of the Internet’s promise–a centralized choke point.

The FCC’s Title II decision recognizes the choke point for what it is, and attempts to mitigate the worst effects. The ruling says, essentially, that we–you and I, at the edges of the network of networks–should decide on our own priorities for what we access from digital networks. It says the centralized cartel shouldn’t make those decisions for us.

Frey hearkens back to the early days of the FCC and its subsequent control over broadcasting to frighten us with the specter of FCC Internet content regulation, citing the commission’s pernicious (we agree again!) regulation over broadcasters’ content through the decades. If there was ever a need for policing televised wardrobe malfunctions in an era of government-limited broadcast outlets–there was not, in my view–it ended when the Internet gave us, in theory, unlimited multidirectional channels of communications.

But Frey, citing a slew heavy-handed government threats and actions against broadcasters, predicts the same is in store for the Internet as a result of Title II reclassification. He’s saying, This is what governments do, and it’ll happen again. (He mistakenly says the FCC has turned the ISPs into utilities, when in fact they’ve been reclassified as “common carriers”–the difference is important and highly relevant in this debate.)

Frey’s argument is a bit like saying government regulations about auto safety, such as requiring seat belts, is just the first step toward the government deciding precisely where you can drive. I suppose that’s possible, but one doesn’t inevitably lead to the other.

Governments don’t always go too far. When they’re “of the people, by the people, for the people,” we have a say in what happens.

The nation’s founders had the right idea when they established freedom of speech, freedom of the press, freedom of assembly, freedom of religion and more in the First Amendment. America hasn’t always lived up to these ideals, which are always under attack from people and organizations who worry about too much freedom. But the FCC decision on net neutrality very much honors the founders’ intent.

The FCC has explicitly said it would apply forbearance (a key word in the legal and regulatory arena), making clear in the rules what it won’t do–which covers the parade of horribles even supporters of Title II fear. (Here’s a Q&A that explains the concept.) And never mind that the public is getting better at understanding what the Internet is and how it works–not to mention increasingly wary of centralized power and downright allergic to government control of what we can read or write.

There’s one bit of forbearance I wish the FCC hadn’t done, in what’s called “unbundling” of the last mile (to our homes and businesses). Given the monopoly/cartel nature of the staggeringly profitable ISP business we’d have been better off if the commission had required the ISPs, particularly the cable companies, to let other companies create ISPs on “their” lines. (Unbundling, by the way, has a track record in several other countries. It’s not the answer but it can help in the short run.

This is exactly what our oppressive government did in the early days of the public Internet. In the 1990s there were thousands of small ISPs competing for our business on wired phone lines. The phone companies were not permitted to discriminate against them, because they were common carriers. And the Internet took off in large part because there was vast, and valuable competition for our business, something the anti-net-neutrality forces never seem to remember.

On one other key point, Frey and I agree entirely, even if we’d undoubtedly get there by different routes: the best fix to this situation is competition. There is a small amount of competition now, but the overall American “broadband” marketplace is a parody of genuine capitalism.

The dominant ISPs got where they are because the marketplace was rigged in their favor. They built “their” networks on the backs of government-granted monopolies in the first place. Then they leveraged their built-in advantages–including cozy deals with various governments–to create a cartel that will be immensely difficult to dislodge, though we should keep trying.

Here’s how we could have genuine competition, or move closer to it:

  • Require monopoly/oligopoly businesses created through special favors to then make their facilities–lines, towers, etc.–available to competitors until such time as there’s actual competition for what they do;
  • Require communities to make their rights of way accessible to all competitors, which would help create the conditions for competition, though it wouldn’t undo the unfair advantages the cartel already possesses as a result of its monopoly days;
  • Forbid state governments from preventing municipalities from installing publicly owned broadband networks (the carriers have “persuaded” lots of state governments to enact competition-killing rules of this kind, and the FCC’s latest rules wisely pre-empt such laws);
  • Free up vastly more unregulated spectrum–ideally created from the airwaves we unconscionably gave to the national and local broadcasters–letting competition emerge there the way it did in wi-fi;
  • Promote, in that spectrum, the promising area of “smart radios,” recognizing that there is a spectrum “shortage” caused by “interference” largely because traditional radios have been so inefficient;
  • And make many other moves aimed at creating the conditions where genuine competition can emerge and thrive.

The chances that the telecoms and their owned-and-operated legislatures would allow actual competition are close to zero. If the opponents of net neutrality really believed in competition, they’d push for something like this. I’m not holding my breath.

Meanwhile, I’ll settle, with misgivings, for Title II. And, working with the enormous group of pro-net-neutrality folks who’ve demonstrated expertise and good will on this issue, I’ll do my best to see that it doesn’t boomerang on all of us. Fear-mongering, even if it’s well-intended, won’t help anyone.

(Note: I’ve updated this post with several small tweaks.)

The Guardian has decided as an institution to put climate change front and center in its journalism. Alan Rusbridger, who’s stepping down as the organization’s top editor this summer, put it this way in an editorial:

So, in the time left to me as editor, I thought I would try to harness the Guardian’s best resources to describe what is happening and what – if we do nothing – is almost certain to occur, a future that one distinguished scientist has termed as “incompatible with any reasonable characterisation of an organised, equitable and civilised global community”.

This is what journalism needs to be, and what it needs to do: Stand for something and then put all available resources behind making it happen. This couldn’t be further from the false neutrality of so much modern “journalism.” Nor could it be more important to make a more common practice.

In my last book, Mediactive, I made a list of what I thought news organizations should do in this digital age when the competition for people’s attention has never been greater. One of those recommendations went this way:

The more we believed an issue was of importance to our community, the more relentlessly we’d stay on top of it ourselves. If we concluded that continuing down a current policy path was a danger, we’d actively campaign to persuade people to change course. This would have meant, for example, loud and persistent warnings about the danger of the blatantly obvious housing/financial bubble that inflated during the past decade.

What the Guardian is doing about climate change strikes me as a perfect–maybe the perfect–example of why campaigning should be an essential part of the craft. It’s long overdue for other news organizations to pay attention, and get active, themselves.

One of contemporary journalism’s unique characters is gone. David Carr, a good and generous and talented soul, collapsed in the New York Times newsroom last night, and just like that, his days with us were over. His 58 years were an amazing saga, as the Times’ lovely–and loving–obituary makes clear.

The wider outpouring of sadness and respect encompasses most of the media world that Carr covered, and often skewered, with a rare combination of depth and wit. It is heart-felt, and entirely deserved.

But one of the adjectives that some are using to describe him–“fearless”–feels wrong to me. He was better than that. He was brave.

And, as he knew better than anyone, he was lucky.

I didn’t know Carr well. We only met a few times, and our conversations were brief. But we had a few things in common, especially having been columnists who both championed and slammed the industries we followed.

A decade ago I ended a 10-year run as a business and technology columnist for Silicon Valley’s daily newspaper, the San Jose Mercury News. No one ever compared it to the New York Times, but in its heyday during the late 1990s, when it essentially printed money along with the news and boasted an enormous and talented staff, the Merc carried significant weight in the tech community inside and outside of the valley.

I loved tech and its possibilities, and admired many of the people who were creating these remarkable new tools of computing, communications, and collaboration. But I declined to be a cheerleader–and regularly pointed out the industry’s manifest foibles, or worse. I had editors, publishers and corporate bosses who got regular calls from industry executives complaining about me, but they stood by me when it counted.

At one point a publication, which is no longer in print, called me fearless. It was laughable. I was anything but fearless. I don’t even think I was especially brave. I was lucky, and grateful. The stars aligned to give me a platform from which I could speak my mind, backed by colleagues I miss to this day.

No one with an ounce of humility or genuine self-awareness could call himself or herself fearless, because the only people who truly are without fear are sociopaths. We all battle our insecurities, of which journalists have more than most.

David Carr came back from personal depths that would have destroyed most people, including drug addiction and cancer. With his own willpower and the help of others, he demonstrated enormous bravery.

In 2008, he published a stunning memoir, “The Night of the Gun,” a work of raw honesty. At the end of the book he wrote the lines that everyone is quoting today:

“I now inhabit a life I don’t deserve, but we all walk this earth feeling we are frauds. The trick is to be grateful and hope the caper doesn’t end any time soon.”

Rest in peace.

ubuntu imageAfter using Ubuntu 14.10 for several months, I’ve reverted to 14.04. On my ThinkPad T440s, I was having frequent system and/or application freezes, and some programs I regularly use were having other odd glitches.

The main reason I’d upgraded was to get support for the wifi card in the ThinkPad, for which there were no drivers in the kernel used by 14.04. So I’m back to using an external USB wifi radio for now. I gather that the updated kernel, with support for my wifi, will be included in the 14.04.2 update coming later this month.

Reverting cost me an afternoon of work, mainly tweaking, but was well worth the trouble in this case. Sometimes the latest isn’t the greatest.

rfp killed

I’m a new contributor to Medium’s Backchannel technology publication. In my first post, I ask journalists to ditch any semblance of “objectivity” — a word I consider in the same category as a unicorn, i.e. mythological — when it comes to freedom of expression and the right to publish. On some issues, even trying to be neutral is a trap, and for journalists this is one of them.

Excerpt:

For journalists, there should be no objectivity, no neutrality, about freedom of expression and other key liberties that are at the foundation of self-rule. There should be an open bias toward openness and freedom—and news people who don’t use their reports to push those values are not fit to call themselves journalists.

Powerful governments and corporations are leading the attack against these core values, usually in the guise of protecting us or giving us more convenience. But these powerful entities are also creating a host of choke points. And the result is a locking down of computing and communications: a system of control by others over what we say and do online — a betrayal of the Internet’s decentralized promise.

Here’s the full post.

(Note: This is adapted from a Thanksgiving Day editorial I wrote many years ago in the Detroit Free Press, and then adapted in my blog starting in the early part of the last decade. It changes each time I write it, to reflect current realities)

Today, we Americans celebrate our finest holiday, Thanksgiving. I’m overseas, in Hong Kong. I expect to join a couple of expatriates this evening. I will miss my family and friends at home.

I’ve been spending a fair amount of time at the “Occupy Central” locations since I’ve been here, with growing admiration for the young people who have created and persisted with their Umbrella Movement. They want a Hong Kong that respects personal liberty and offers a genuinely representative government. The authorities are starting to evict them from their street encampments here on Hong Kong Island and in Kowloon across the harbor.  It’s both an inspiring and sad sight.

Across the ocean people are in the streets to protest a corrupt system of justice that has produced the Ferguson case and so many others like it. A student at the University of Hong Kong, where I’ve been teaching for a few weeks, asked me to explain Ferguson after the grand jury reached its obviously pre-ordained decision and anger spilled over. I couldn’t. I still want to believe the best about my country.

The young people who’ve camped in the streets of Hong Kong’s Admiralty, Monkok and Causeway Bay, and the angry but overwhelmingly peaceful demonstrators in Ferguson and other American cities, remind me of what a friend once said, many years ago:

We need more pilgrims, and fewer turkeys.

There are still plenty of pilgrims around. They refuse to accept the way things are. They reject pure grasping for money and control and status. They are outnumbered and outspent in the halls of power, but their day may return if the people ever recognize what is happening.

My material table overflows with bounty this Thanksgiving. Tonight I will raise a glass to family and far-away friends. I’ll salute the brave people worldwide who champion and fight for justice. I’m grateful beyond words for my life of comfort and relative safety in a deeply troubled world.

I’m grateful, too, for my opportunity to constantly explore and learn. I hope to sustain, as long as I live, a spiritual pilgrimage — for life, for justice.

And on Thanksgiving Day 2014, I wish the same for you.