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Craig Parshall, General Counsel


The Razor’s Edge of Regulation

November 30, 2011

With the end of the year approaching, I am putting myself out on a limb with a modest prediction: The year 2012 is likely to see an increasing move toward the government controlling the levers of the Internet and the dissemination of news and information to the public. The signs are too obvious to miss. This week the Federal Trade Commission (FTC) announced a major settlement of a complaint that it had brought against Facebook because of its lack of privacy protections for its users. Internet privacy invasion and unauthorized use of web users’ personal information has been an ongoing concern among web tech pundits and lawmakers, but at the same time it is a tempting entrée for huge government regulation. Then there are the recent bills purportedly designed to stop copyright violations that are being floated on Capitol Hill, commonly known as SOPA (H.R. 3261 – Stop Online Piracy Now) and PROTECT IP Act of 2011 (S. 968 – also called the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011). However, if passed, they may well transform copyright law (known up to now as a federal right that is enforced by private litigants) into a piece of federal machinery that makes the government the major player in these disputes, with the result that any suspicion of copyright violation could lead to overt suppression of Internet content. Meanwhile, a recent attempt by the Congress to halt the implementation of the FCC’s flawed “net neutrality” rules (governing the “network management” decisions of Internet service providers) failed. Those FCC rules have created a complex regulation that is long on web supervisory oversight but short on any meaningful protection for the free speech rights of the average Internet user.

Proving that this is a global trend, last week the Royal Courts of Justice in London entertained a formal inquiry into allegations of media abuse, ranging from journalist-hacking of cell phones to gain news tips, to the plague of inaccurate and misleading reporting by tabloids. The star witness was actor Hugh Grant who complained about those kinds of intrusions into his life as a celebrity and the immediacy with which both false and sometimes true (though embarrassing) stories can be spread over the Internet. There seemed to be a general consensus that the government “regulators” needed to step in and put an end to it all. Some of these issues of media integrity, journalistic ethics, and government control of media were touched on, though not disposed of, in a special proceeding launched by FCC Chairman Julius Genachowski and which concluded with the issuance of a report in June.

Here at NRB, we plan on taking an active role in these debates. This September we released the first report of the John Milton Project for Religious Free Speech (True Liberty in a New Media Age) documenting free speech violations and acts of viewpoint censorship occurring on the Internet. Next year we plan on expanding this investigation. We are working on ideas to help resolve the competing interests of the big tech, media and copyright-holding companies on the one hand, and America’s citizen communicators and information consumers on the other. But as the complexity of these issues suggests, the biggest threat to free expression may not be that single, fatal blow, but rather, the death of First Amendment liberties by a thousand regulatory and legislative cuts.