Jousting With Phantoms: Democracy Denied Takes On Internet Freedom

Blog ››› ››› SIMON MALOY

Phil Kerpen, vice president of Americans For Prosperity, doesn't care for the Federal Communications Commission's Open Internet Rule. In his new book, Democracy Denied, Kerpen devotes an entire chapter to denouncing the passage of the rule last December, which he called "the darkest day in 372 years" (betraying a propensity for histrionics and a shaky grasp of lunar science). He calls it a "regulatory coup d'etat" and a "sweeping new government regulatory power that would prohibit Internet service providers (ISPs) from innovating in their own networks." Again and again, Kerpen writes that the FCC is now "regulating the Internet."

But all the ire Kerpen deploys is aimed squarely against a phantom, a crushing and onerous regulatory structure that does not exist. For all the words spent attacking what (he says) the Open Internet Rule will do, he never describes what the rule actually does -- not a single word from the rule is quoted, not a single news report describing the intent of the rule is referenced.

The reality of the FCC's action does not comport with the years-long campaign of high-pitched invective telecom shills like Kerpen and AFP have waged against the push for open internet policies. Thus, we get an elaborate shadowboxing routine.

Take as an example Kerpen raising the alarm that the Open Internet Rule has inspired an international push for draconian internet regulation:

FCC Commissioner Robert McDowell has argued that regulating the Internet could also accidentally trigger United Nations jurisdiction. He wrote in the Wall Street Journal:

At two meetings of the U.N.'s World Summit on the Information Society in 2003 and 2005, the U.S. found itself in the lonely position of fending off efforts by other governments to exert U.N. or other multilateral control over the Internet. ITU member states have attempted to expand their control over Internet governance, Web address registries, and cybersecurity. These nations will likely be encouraged by talk of more U.S. Web regulation.

Early indications are that these fears were well founded. Within weeks of the new United States net neutrality rules and using them for cover, Venezuela passed a new law giving the executive authority to regulate all Internet service providers to block content that, among other things, "refuses to recognize the government's authority." [Democracy Denied, page 95]

With regard to basic chronology, this isn't accurate: Venezuela's legislature passed the restrictions on internet content on December 20, 2010, one day before the FCC approved the Open Internet Rule.

The rule passed by the FCC states that fixed broadband providers can neither block lawful content nor discriminate against certain types of content based on political or financial considerations. It acknowledges the need for ISPs to (reasonably and transparently) manage network traffic. It grants the FCC no Hugo Chavez-esque power to restrict internet content and actually puts into place the mechanism to prevent ISPs from themselves becoming content regulators. It's nothing like the oppressive Venezuelan law, and it doesn't touch on the subject areas referenced by McDowell in his op-ed. But omitting the particulars of the FCC's rule permits Kerpen to sloppily compare the two under the umbrella of "internet regulation."

This is as close as Kerpen comes to actually engaging with the regulation he claims is so detrimental to our economy and political system. The remainder of his critique is spent heaping scorn on the "radical" proponents of open internet policy, many of whom (like former White House senior advisor Susan Crawford) haven't been in government for years, or (like Free Press) are extremely dissatisfied with the FCC's ruling.

Slate's David Weigel wrote that Kerpen's book is a "polemic," a "pure distillation of what the people funding the New Right believe." And it has no shortage of fans on the right. Erick Erickson gave it a ringing endorsement, and Dick Morris wrote that "Democracy Denied catalogues the loss of freedom in a way that is both profound and important."

As challenges to the rule move their way through the courts, Kerpen's and AFP's broadsides will likely form the nucleus of right-wing attacks on the FCC and open internet supporters. But they do not reflect the current regulatory environment, and actually distort it quite badly.

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Phil Kerpen
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