Platt Perspective on Business and Technology

Deciphering net neutrality and the concept of an open-range internet 4

Posted in business and convergent technologies, in the News by Timothy Platt on December 29, 2014

This is my fourth posting to a series on the contentious topic of net neutrality (see Ubiquitous Computing and Communications – everywhere all the time 2, postings 299 and loosely following for Parts 1-3.)

I finished Part 3 of this series with a start to a discussion of 2014 Federal Communications Commission (FCC) hearings on net neutrality, and more specifically on their then still to occur hearings on whether online service providers can offer preferred higher bandwidth connectivity to select favored customers and slower, lower-priority connectivity to others – leading to tiered bandwidth favoritism. And more specifically, I ended that posting with at least a preliminary discussion of the FCC’s public comments period where in this case more than one million statements, position papers and comments had been submitted, and by private individuals and by organizations of all sizes and types. And this led me to a core question, which I also raised:

• Which voices out of all of this are listened to and with what attentiveness and urgency, and which voices are for the most part ignored?

I have focused in that regard on businesses and organizations and on how they seek to influence regulatory decision making in their favor. And I turn here to consider how legislation in place and legal rulings based upon that have given large businesses – like the online service providers that seek permission to switch to tiered online connectivity systems, larger and more preferentially favored voices and in multiple arenas of public discourse and decision making. And a key to understanding this is in how businesses hold corporate and organizational identities but also and increasingly importantly, how they hold identities as persons too, and particularly under the aegis of recent, as of this writing, US Supreme Court rulings under the Roberts Court. But to put that in perspective, I go back to the beginning for the issues of corporations as persons, and the US Supreme court decision: Trustees of Dartmouth College v. Woodward of 1918.

Trustees of Dartmouth College v. Woodward 17 U.S. 518 (1918) began as and came to the court as a result of a conflict between a private college located in the state of New Hampshire and the legislature of that state. In brief and admittedly cartoonish summary, the state legislature sought to take over this private educational institution and make it a state-run entity, so it could impose a state controlled board of trustees on it and install legislator-approved administrative leadership there. The Supreme Court through majority decision saw this as an unwarranted intrusion by government and framed its protective remedy to this in a novel manner. It decided that a nonprofit organization – in this specific instance a nonprofit college or university had the same rights as a natural person to enter into and enforce contracts, in this case their school charter with its contractually binding terms. And this decision, creating the status of corporate person, first framed with a privately owned and operated college in mind, has served as a foundation-point precedent for much that has followed that is relevant here. And with that, I cut ahead to more recent Supreme Court decisions that have significantly and even dramatically expanded what corporate personhood means. And I begin there at a fundamental turning point in the history of United States jurisprudence and of how the US legal system impacts upon society: the Citizens United v. Federal Election Commission ruling of 2010 and its direct consequences.

The Citizens United decision as it is more generally called, holds that First Amendment rights held by nonprofit organizations as corporate persons, prohibits the government from restricting their political expenditures: how much they can legally donate politically, and to whom. And in the essentially immediate aftermath of this decision, further judicial rulings were also enacted that allowed for-profit corporations to donate without let or limitation to political campaigns through nonprofits: political action committees (PAC) and particularly through so called super PACS. And at least as of this writing, it is legal to set up and contribute to a number of specific types of legally defined super PACS completely anonymously and for both super PAC organizers and for their donors. And it is possible to make political donations through these entities at whatever donation levels and with no limitations on what these funds would be used for – and with no outside auditing or oversight.

The outcome of this set of court decisions has been summarized, and both cynically and accurately as “one dollar equals one vote.” And this affords large corporations an overwhelmingly large voice and influence in the political process, and certainly when compared to the vast majority of natural persons – citizens who do not belong to the highest income and wealth level 1%, or rather the top 1% of that 1% group. These corporations, operating through their politically compatible super PACS can and do hold disproportionate voice and influence in political elections.

Granted, it is easy and valid to argue that the regulatory process, as for example carried out by organizations like the FDA, the FAA, or in this case the FCC are run by appointed officials. In principle, this means that these agencies can operate and make decisions that are free of at least direct political pressure. But the leadership of these agencies are selected by politicians and have to meet political litmus test standards as well as skills and experience-based qualification standards in order to get selected for these positions, and before being approved for office by appropriate congressional oversight committees. The political nature of the selection and approvals process here, at the very least taints the credibility of these agencies as politically impartial bodies, and particularly when national politics are so rancorously partisan as they are now. And this brings me back to a question that I raised and noted earlier in this posting:

• Which voices out of all of this (that seek to influence and shape the outcome of these FCC hearings) are going to be listened to and with what attentiveness and urgency, and which voices are for the most part going to be ignored?

I leave that as a still open question, and one that’s answer will only become clear in aftermath to these hearings themselves.

And with that, I come to the issues of Facebook and a group of social media and internet companies that they have come to work with, in an effort to shape online connectivity for developing nations. I am going to delve into that complex of issues in my next series installment, noting here that the issues and challenges that I will be discussing, go a long way in explaining why I take the issues of net neutrality per se as being much more inclusive and wide-ranging than just the issues of whether service providers can offer tiered bandwidth services. And in anticipation of that discussion, I note here that it will revolve around connectivity and service standards that would be followed in this expansion of online access availability, and the issues of developing these new network capabilities using open or proprietary technology as standards-essential innovations. Meanwhile, you can find this posting and related at Ubiquitous Computing and Communications – everywhere all the time and at its Page 2 continuation. And I also include this in my In the News postings list.

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