Loose Canons

Killing the Internet?

Two new threats to our First Amendment rights.

By 5.19.14

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Freedom of speech and freedom of the press are so fundamental to it that human freedom cannot exist in the absence of either. Naturally, when a dictator or despotic regime wants to oppress their people, these are among the first freedoms to disappear. No one — not even Al Gore — could have foreseen the enormous benefit to those freedoms that would be brought by the Internet. Now, the despots’ infringements on it are growing stronger.

Two actions last week by very different groups — the Federal Communications Commission in Washington and the European Court of Justice in Brussels — are having an enormous effect on Internet freedom. Naturally, one is being ignored by the American press and the other is being given a wrong-headed interpretation.

Last week’s decision by the European Court of Justice ruled that people have a “right” to be forgotten, which means that search engines provided by Google, Microsoft, and other global firms must remove the links to material to which people object. The ruling was a less-than-one-day story here. It’s generally ignored despite its impact on our First Amendment rights.

The ECJ decision resulted from a Spaniard’s complaint that the Internet allowed people to find embarrassing information on his house having been foreclosed in 1998. (There was an earlier decision this year by German courts ordering Google to block access to pictures taken at a sex party involving Formula One racing boss Max Moseley.) It applies the European Union’s Data Processing Directive — a vast regulation that reads as if it were a long chapter of the Internal Revenue Code — to determine that a right to privacy enables a person who objects to certain data’s availability to have links to it deleted. It doesn’t require expurgation of the data itself, but that’s the logical extension of it. The ECJ is on the road to that decision.

Forget for the moment the costs that this decision imposes on companies such as Google and Microsoft, though they may be enormous. But do not forget the many effects of it on freedom not just among the EUnuchs, but here and in other free (at least so far) countries.

In America, you can publish almost anything without fearing liability or punishment. Unless it’s libelous or it’s a government secret, there’s no legal prohibition against any publications. In recent years, though, some publications have been held to be invasions of privacy and those who write, photograph, and publish them were held liable for civil damages.

Most importantly, moreover, in America a plaintiff in a libel case has to prove that the writing was false, with the additional burden on public personalities that they have to prove the publication was malicious. (In the Alice in Wonderland British libel law, the defendant has the burden of proof that what was written is true.)

Remember, it’s not the falsehood of the Spanish foreclosure that the plaintiff was using to base his objection to the public information: it was the truth of the matter. The first obligation of a free press, as the founders saw it, was exposing the truth. (Though it wasn’t experienced by them. The press in Revolutionary times, as Eric Burns demonstrated in Infamous Scribblers, was as bad or worse than it is now.)

The ECJ’s creation of a “right to be forgotten” will burden freedom of the press in Europe, and probably here as well. The press is forced to forget the truth if the object of the story decides it’s too embarrassing. All will be forgiven because all will be forcibly forgotten.

The ECJ decision gives anyone and everyone with something to hide the means to hide it. If you’re not a public figure (though the decision could be interpreted to include them as well) it gives you the right — not a right found in our Constitution — to censor what is and can be known about you. So if you’re a college professor fired for sleeping with your students, a mortgage holder who has skipped out on debt or been foreclosed upon, or just a crooked politician who wants to get elected in a new jurisdiction, you can move the links to records of your misdeeds out of reach of the search engines.

We don’t yet know how Google and the others are going to implement this decision, but logically — because the European Data Directive limits how information is passed between countries — any links that are taken out of the search engines’ European lexicon will have to disappear here too. Whatever is made off limits there will be made off limits here unless the ECJ goes further and prevents Europeans from accessing American versions of the search engine websites.

In that manner, the ECJ decision limits our First Amendment rights just as much as it limits those of the Europeans. It is an effect that we cannot let stand, yet there is no public outcry. Forget the possibility of government action. The Obama regime almost certainly sides with the censors.

The reaction from our press isn’t just be muted, it’s almost nonexistent. It’s much less important to pay attention to pretty much anything that happens in Europe than it is to write about how the Iran nuclear negotiations are proceeding in Vienna, why Eric Shinseki should be fired from his job as Veterans Administration chieftain, and whether Hillary’s brain was damaged sufficiently to disqualify her for the presidency. Or is it?

No, it isn’t. We are at a point at which our First Amendment rights have suffered a dangerous form of damage. There’s every reason to believe that the ECJ’s decision will erode the freedoms of speech and of the press by reducing the information we are able to write and talk about.

While the ECJ was creating a new “right,” the FCC announced its intention to impair what the left calls “net neutrality.” The lefties’ idea is that the Internet should be free for everyone — they haven’t yet made up a constitutional right to a laptop and free Wi-Fi, but it’s coming — so that no company should burden the net with fees.

But all websites and all search engines aren’t created equal. Some websites take an eternity to load on your Internet provider’s service, and the FCC wants to allow Internet providers to charge them a fee for the burden of enduring the over-usage of broadband space while they are being loaded and used.

Moreover, the real burden doesn't come from the slow websites: it's due to some of the services — movie-watching websites and such — that hog the bandwidth necessary for everyone to use the Internet. It may cost you little or nothing to watch a movie, but the enormous amount of bandwidth you take up watching it is a big burden to the Internet service providers. It costs them money to let you and Netflix hog all that bandwidth.

It’s entirely wrong for the FCC to be regulating the Internet in any manner. Begun almost a century ago, the FCC was created to deal with radio station licenses to ensure against conflicting broadcasts on the same frequencies. It grew to regulate television (remember the “Fairness Doctrine”?) and its venture into the Internet is entirely wrongful. It has no business regulating the net any more than it has the business of sticking its nose into news content of newspapers, websites, and television news rooms. It is an unconstitutional interference in the First Amendment.

Nevertheless, as you’d expect in the Obama era, the FCC is charging ahead anyway. Some parts of its proposals, perhaps by accident, smack of free market capitalism and should be encouraged.

But the “net neutrality” aspect of this proposed regulation — which isn’t out yet, and will have to be scrutinized carefully before judgment is passed — seems to support basic capitalism and should be supported.

If the movie-watching websites absorb more bandwidth than a normal website, and they do every minute of the day, it costs the Internet provider more to carry its load. And if your Aunt Matilda's recipe blog uses ancient software, it may also hog bandwidth by taking an eternity to load. Free market capitalism requires those costs to be paid by the bandwidth hog’s website rather than having those costs apportioned among all the websites or just added to the costs of Internet providers doing business. It’s like a road toll. An 18-wheeler pays a higher road toll than a two-axle sedan and it should. The websites that are hogging the bandwidth or are slow should pay for their slowness. That’s capitalism. The notion that the Internet service providers should bear the burden of the slowcoaches is Internet socialism.

What’s to be done? How about federal legislation banning the FCC from any of its intrusions on the Internet, on newsroom activities and the like? Add to that a prohibition of American companies from abiding by the ECJ’s decision and you have something worth doing. 

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About the Author
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including Inside the Asylum and In the Words of Our Enemies. He is coauthor (with Herbert London) of the new book The BDS War Against Israel. You can follow him on Twitter@jedbabbin.