Wednesday, October 21, 2009

FCC's net neutrality rules may be well intended, but is it dangerous for FCC to have the power to issue them?

Corynne McSherry has a valuable essay on the Electronic Frontier Foundation site, “Is Net Neutrality an FCC Trojan Horse?”, link here.

The EFF typically takes libertarian positions, even against overregulation that may sound well intended and protective of individual rights. Here is no exception: EFF is not criticizing the FCC network neutrality regs (from Chairman Genachowski) per se, but tie Federal Communication Commission’s “ancillary” authority to develop and implement them. EFF suggests that the FCC could get tempted to implement its own “Internet decency policy” (an administrative CDA or COPA, which would probably be unconstitutional). The FCC made the case for its authority in a case involving Comcast, with the court brief here with a Progress of Freedom Foundation rebuttal here with respect to Bit Torrent. EFF also envisions an imaginary “Internet Lawful Use Policy” that could mimic the DMCA. Possibly even (in my opinion) it could consider some form of mandatory liability insurance for bloggers, in order to reduce “systemic risk”, a new Obama administration buzzword these days.

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