31 January 2011

Net neutrality vs. the "Internet kill switch"

I have previously written at some length about net neutrality.  Without rehashing much of that, it should suffice to say that one of the main issues surrounding the issue of net neutrality is the authority of the FCC to regulate the Internet (the FCC classifies the Internet as a Title I information service and not a Title II common carrier).  Thus far, Congress has not acted; despite this, the FCC asserted authority to regulate the Internet and issued a net neutrality order (PDF) on December 21st.

Another issue which became newsworthy in the past year or so was the Protecting Cyberspace as a National Asset Act of 2010, introduced by Senator Lieberman (I-CT).  While this bill did not advance in the last Congress, it will undoubtedly be renewed.  By its own description, the bill
[c]reates the Office of Cyberspace Policy and National Center for Cybersecurity and Communications to set standards and coordinate cybersecurity efforts within the government. Gives the NCCC broad powers over "critical infrastructure" in the case of a "national cyber emergency" (as declared by the President).
The "broad powers" over "critical infrastructure" given to the President and the NCCC have been termed a supposed "Internet kill switch."

The bill and the kill switch rhetoric rose to new importance in the past week as events in Egypt have unfolded, amid news reports that the Egyptian government was blocking access to, or otherwise obstructing the Internet.  PC Magazine then raised the question: After Egypt, Will U.S. Get 'Internet Kill Switch'? which was cited by the Demand Progress campaign to fight the Internet kill switch.  This campaign is actively opposed to Senator Lieberman's bill.

Personally, I think it is interesting to see these two issues ripen at the same time.  On one hand, implementation of meaningful, enforceable net neutrality requires Congress to grant the FCC power to regulate the Internet.  On the other hand, in the case of Senator Lieberman's bill, handing the government "broad powers over 'critical infrastructure'" (the bill's words) is seen as "an affront to basic democratic principles, the First Amendment, and all that is great about America" (Demand Progress's words).

To be sure, I don't suggest that these two situations are equal, but there is a slippery slope there.  Handing regulatory control of the Internet to the FCC in one realm could encourage the government to grab hold in other realms.  And to be sure, Senator Lieberman's bill (as a separate grant of authority to the NCCC rather than the FCC) wouldn't even require any sort of net neutrality legislation to be in place; but it may certainly be emboldened by it.  It seems to me that even the FCC's current overreach, absent Congressional authorization, has to give other regulatory bodies the envious thoughts of control.

Organizations such as the EFF and ACLU support net neutrality, but oppose the kill switch legislation.  These organizations, and anyone who shares the same positions, are certainly entitled to them.  But I think it becomes important for them to distinguish why you support one, but oppose the other.  In discussing the issue with me on Twitter, @no_structure said "the kill switch is indiscriminately destructive but regulation is not, nor is regulation guaranteed to be destructive at all."  He argued that he was "concerned" about the potentially for a slippery slope, but not "deterred" by it.  I think this is a reasonable position, but these other organizations ought to distinguish the issues themselves, too.

My concern, even with this reasonable position, is the soft despotism that de Tocqueville wrote about:
It covers the surface of society with a net-work of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd. I have always thought that servitude of the regular, quiet, and gentle kind which I have just described, might be combined more easily than is commonly believed with some of the outward forms of freedom; and that it might even establish itself under the wing of the sovereignty of the people. Our contemporaries are constantly excited by two conflicting passions; they want to be led, and they wish to remain free: as they cannot destroy either one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite; they console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large that holds the end of his chain. By this system the people shake off their state of dependence just long enough to select their master, and then relapse into it again. A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people; and they think they have done enough for the protection of individual freedom when they have surrendered it to the power of the nation at large. This does not satisfy me: the nature of him I am to obey signifies less to me than the fact of extorted obedience.
de Tocqueville's slippery slope is so imperceptibly shallow that we may not notice the slope at all.  We may recognize the kill switch as far enough along that we can perceive the difference.  But regulation of the Internet via net neutrality seems clearly much closer to our current position.  It may be only slightly further down the slope, but down the slope it is.

Our important distinction will be where to draw the line such that we no longer push ourselves down the slope.  Let us hope that we can even recognize when we're there, and not simply be content to redraw the slope every time we take a step.
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