2018 was the year of the “Techlash,” a souring of attitudes towards Internet companies, and the Internet itself. It also marked a new phase in techno-populism. Digital activism isn’t new: the Internet rallied to “Stop SOPA” (sweeping anti-piracy legislation) in 2011. Millions filed comments on the FCC’s net neutrality rules in 2014, and many more in 2017. But 2018 saw an entirely new level of techno-angst: fake comments, fake news, Russian bots, massive data breaches, growing privacy worries… and a growing fear that the Internet is being used against us.
Left and Right joined forces in strange ways. Democrats decried Facebook as a tool used by the Russians to elect Trump. Republicans decried “anti-conservative bias.” Both sides agreed that tech companies had gotten too big, too powerful, and that something needed to be done about it.
What that something is… isn’t clear. But that doesn’t stop politicians from trying to ride the Techlash for their own sake. William Jennings Bryan, the first modern American populist put it best in the 1890s, in rallying for cheap credit (to help farmers): “the people of Nebraska are for free silver, so I am for free silver. I will look up the arguments later.”
We, for one, think the details do matter — and that the arguments need to be weighed before acting. In 2018, TechFreedom’s mission became clearer than ever: to think through the concerns of all sides, cut through the hysteria, provide a factual and legal analysis of what is and isn’t really a problem, and suggest options for addressing real problems.
SESTA. We started 2018 focused on SESTA, a Senate bill to amend Section 230 of the Communications Decency Act of 1996 — the law that made today’s Internet possible. SESTA made website operators liable for civil damages if users of their sites engage in sex trafficking. We warned that this bill would actually harm sex trafficking victims by discouraging websites from self-policing or cooperating with law enforcement — something lawmakers didn’t—and couldn’t—really understand because the Senate Judiciary Committee never bothered to hold hearings on the bill. We dug in deeper on the details than anyone, and worked with the House Judiciary Committee to draft an alternative bill that actually focused on the problem: a lack of effective criminal prosecutions of sex traffickers. Unfortunately, in the end, that bill (FOSTA) was simply merged into SESTA despite the House Judiciary Committee saying SESTA would backfire and the Department of Justice saying the combined bill raised serious constitutional problems.
Congress, collectively, said, effectively: “I will look up the arguments later” — as in, after passing the bill in March. This startling, bipartisan abdication of legislative responsibility set the tone for the entire year.
“Bias.” A month later, I testified before the House Judiciary Committee alongside Trumpist social media stars “Diamond and Silk,” who insisted that Facebook had “censored” them. After that committee’s very thoughtful work on FOSTA and reluctance to mess with Section 230, I expected a careful, measured response to the narrative that Big Tech was out to get conservatives, and that Section 230’s (limited) immunity for moderating user-generated content should depend on political neutrality (literally the opposite of what Section 230(c)(2)(A) actually says).
Instead, it was the Congressional version of the French Gilets Jaunes, except with Republican Congressmen setting fire to their own Reaganite principles about keeping government out of media. After nearly eight decades of railing against the Fairness Doctrine for broadcasting as unconstitutional, Republicans suddenly wanted a Fairness Doctrine for the Internet. If you haven’t watched the video, you should.
This Digital Fairness Doctrine idea has caught on. When Attorney General Jeff Sessions convened state AGs in September to discuss how to prosecute Big Tech, we sent him a letter detailing why the First Amendment bars retaliation against political “bias” even if it did exist. Expect Trump to crank up the volume in 2019.
Social Media Regulation. Republicans have been playing catch-up with Democrats in demanding greater Internet regulation. The floodgates gushed open in late March when news broke that Facebook had failed to stop Cambridge Analytica from creating voter profiles used by the Russians to affect the 2016 election. Democrats insisted on extending regulation of broadcast media to social media — never mind that the Supreme Court has upheld these regulations only because broadcast, unlike Internet, media don’t get full First Amendment protection. From both sides: “I will look up the arguments later.”
We did what we do best: a deep dive — the first analysis of how the Federal Trade Commission could enforce existing law against Facebook for the company’s obvious and bewildering carelessness with user data. In May, we filed comments with the Federal Election Commission on how to address concerns about political ads — not by banning ads too small to accommodate legalistic disclosures but by using Internet technologies to better empower users.
FCC Regulation. Everyone said the sky would fall if the Republican FCC repealed the 2015 Open Internet Order. That repeal became effective in June — yet nothing changed. So it was only a matter of time before someone claimed that the “death of net neutrality” really had “changed the Internet forever.” In August, breathless headlines claimed Verizon had “throttled” California firefighters battling epic wildfires. We did another one of our deep dives, explaining that this was all smoke and no fire.
We’ve been engaged on this issue since TechFreedom launched in 2011. Again: it’s not really about net neutrality; it’s about the government’s power over the Internet. The Title II authority invoked by the FCC in 2015 would give Trump and his FCC startling emergency powers — including the power to prioritize Internet traffic, the very opposite of Net Neutrality. We sounded the alarm about this in February, and now even the Brennan Center, a bastion of the thoughtful left, is making the same argument in The Atlantic.
Invoking Title II opened the door to sweeping regulation, including price controls, of not just broadband but also the kind of IP-enabled services like VoIP offered by the entrepreneurs who joined us in suing to block the FCC’s power-grab. We got two powerful dissents making exactly our argument in 2017, including from then-Judge Kavanaugh. The Supreme Court declined to take our case, but unless Congress legislates, the ping-pong match will continue: the next Democratic FCC will revert to Title II, and our arguments will go back up to the Supreme Court.
Meanwhile, California and other states have passed their own, broader legislation. In October, we published an especially deep dive explaining why state regulation of Internet services is unconstitutional.
We’ve never wanted to fight about this. We’ve been calling for federal net neutrality legislation since 2014 and spent a good chunk of this year working on a compromise bill. We’ll keep doing that in 2019, but we fear that politicians and other populists on both sides would rather keep playing political games with this issue forever.
FTC & Privacy. Increasingly, the populist techlash has focused on the FTC — for all the same reasons we dubbed the Federal Technology Commission years ago: the FTC handles everything from privacy to antitrust to, now, net neutrality. If the last decade was spent fighting over the FCC’s powers, the next decade will be spent fighting over the FTC’s power.
The Commission’s been holding a series of workshops to do what we’ve been urging for years: a top-to-bottom reassessment of how the agency handles consumer protection and competition concerns online. We filed extensive comments in August, reiterating the calls for process and institutional reforms we made in Congressional testimony in late 2017 (and in 2016 before that). Those comments were co-authored by Jim Dunstan, a 35-year legal practitioner who joined us in April as our part-time General Counsel.
Privacy is increasingly the focus of today’s tech-populism. We’ve started sketching out how to address real privacy problems without strangling America’s tech sector, first in comments on the Commerce Department’s privacy inquiry and second on comments for the FTC’s planned workshop in February. Ironically, “getting tough” is likely to hurt small companies and startups most, and thus help the Big Tech companies both Left and Right love to hate. As with net neutrality, we recognize the need for federal legislation, but if populism triumphs over careful analysis, legislation could do grave damage to the Internet.
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