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Susan Crawford’s Captive Audience Filled with Misplaced Fear

From the diaries by Neil

Susan Crawford, a visiting professor at Harvard Law School, is in our nation’s capital today to promote her new book, Captive Audience. The book declares the United States is suffering from broadband inequality because no “privately provided wired Internet access product . . . can compete with cable.” Its proposed solution to this alleged monopoly is government ownership and control of Internet infrastructure as a public utility.

This proposal is not new. Organizations on the left have been advocating for government ownership of the Internet for years, but their efforts have been thwarted by the repeated failure of government owned broadband networks. Captive Audience attempts to give the idea new power by making an appeal to fear of a “looming cable monopoly.” The goal is to create a “technopanic” that pressures the federal government “to do something” despite the empirical evidence of government failure.

There are things the government could do to promote private investment in the market for Internet access, but destroying that market through government ownership and control isn’t one of them. A century of post-industrial experience with government market interventions has proven that a complex industrial economy is either market driven or a bureaucratic muddle.

We can ill afford bureaucratic meddling with the Internet given its importance to innovation and economic growth. But there is something even more dangerous than economic inefficiency at stake here: Government ownership and control of the Internet is a fundamental threat to freedom of expression.

Captive Audience asks us to “think of Comcast as an operator of a giant waterworks” and compares the data distributed by Comcast to water. This analogy appeals to our emotional connection with a necessity of life while sidestepping the critical distinction between water and data. Water is a commodity. If it is safe to drink, there is no qualitative difference among water or its potential sources. Data is not a commodity: Data is speech.

The best analogy for the potential societal impact of government ownership and control of the Internet is the printing press. Both are means of mass communication, and both have been disruptive to authoritarian governments.

The Printing Revolution is considered the most important event in the modern world. The invention of the printing press enabled the rapid, widespread, and accurate circulation of ideas and information for the first time in human history, including ideas that challenged orthodox views and government authority. Governments responded to this threat to their authority by establishing control over the printing press through state monopolies, press licensing, special taxation, and criminal libel. For example, in England, ownership of a printing press required a license, only one company was permitted to print and distribute books, and nothing could be published without prior approval of the Church or state authorities. The practice of search and seizure for criminal libel continued in England until 1765, only eleven years before the drafting of the American Declaration of Independence.

The drafters of our Constitution knew through their own, living experience that government can control ideas by controlling the means of their dissemination, which is why they “enshrined immunity from government control for the new communication technology of their day as a bedrock principle of the American system.” The First Amendment prohibits Congress from abridging either “the freedom of speech” (the Speech Clause) or the freedom “of the press” (the Press Clause).

As Chief Justice Burger once noted, “There is no fundamental distinction between expression and dissemination.” The press merited special mention because it was the primary subject of official restraints on speech, which “were the official response to the new, disquieting idea that this invention would provide a means for mass communication.” The Press Clause was intended to “make clear that this potentially dangerous technology [the printing press] was protected alongside direct in-person communications.”

Although the Press Clause was written in response to government restrictions on the mass communications technology of the day, its protection is not limited to the printing press. The Supreme Court has stated that new types of speakers or forms of communication are entitled to the same First Amendment protection as “those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted.” The Court has applied First Amendment protection to television broadcasters and cable operators, and I expect the Court will apply it to the Internet if it addresses the question.

There are strong parallels between the historical impact of the printing press and the Internet today. The printing press enabled the Reformation by taking book copying out of the hands of the Church. The press also allowed scientists to share the results of their work quickly and accurately with other scientists, which led to the Scientific Revolution and the principles of the Enlightenment on which this country was founded. The press was so disruptive to established dogma that many consider it the most important invention during the millennia between the inventions of writing itself and the computer.

The Internet is playing a similarly disruptive role in the world today. Though it is not the only modern mass communications technology, it is the only one that spread globally while remaining free of extensive government restrictions. The decentralized, unregulated nature of the Internet drove the Arab Spring and enabled criticism of the government in China. The Chinese and other authoritarian governments have responded to this empowerment by strengthening their control over the Internet just as governments once attempted to control the printing press. The Internet is history repeating itself.

That history shows there is something to fear in Captive Audience, but it is not the cable monopoly bogeyman. It is the captive audience we would become if the modern means of mass communications were owned and controlled by the government. We have given the government a monopoly on coercion. If we give it a monopoly on the dissemination of speech on the Internet as well, we will give up our liberty.

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