
 Libertarians make the case: net neutrality is unconstitutional - Cadsby
http://arstechnica.com/tech-policy/2012/07/libertarians-make-the-case-net-neutrality-is-unconstitutional/?comments=1#comments-bar
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msfd
It's alway sad when there is "libertarians" wanting to preserve nothing more
than corporate rights over people's rights using skewed interpretation of the
(US) constitution.

And yes, I'm using libertarians with quote because a real libertarian would
have thought a bit more than just "The constitution is the supreme rule!!!"
and more about every right involved and how to maximize everyone liberty.

~~~
sp332
It's obviously not right for the government to mandate that certain
corporations must deliver certain messages. The only justification for this is
that telecommunications companies are heavily regulated and are granted
franchises which are effectively monopolies. So the libertarians should solve
the monopoly problem, _then_ the free speech problem. Fixing them in the wrong
order is worse.

~~~
beernutz
I think the message is not that they have to deliver "certain" messages, just
that they are not allowed to discriminate in the messages they deliver. Like
the phone company is not allowed to listen to calls and decide to terminate a
call if people are talking dirty to each other.

It is -and should be- an all or nothing kind of proposition I think.

------
beernutz
This reminds me of the "libertarian" argument that business owners should be
allowed to choose not to serve black people.

Civil rights were something the government had to step in to protect. I think
that net neutrality might be the same kind of thing.

~~~
tptacek
The "libertarian" argument against the Civil Rights Act isn't that
discrimination is good. It's that the prevailing attitude towards
discrimination was inevitably going to trend away from discrimination, and
that forcing businesses to serve people harms their right to associate freely
with the people they chose; while this limitation on free association is
obviously benign, it sets us on a slippery slope towards other violations of
free association.

I am not a libertarian and find this argument very unconvincing. Also, my
emotional brain tends to impute racism towards those politicians who have
advanced it. But it's not an illogical argument.

So in that spirit I'd say: if you think the government should step in to
guarantee neutrality, you're not a pure libertarian. You don't need the scare
quotes.

~~~
rayiner
I think the race situation is actually the most damning example for
libertarianism. I'm not convinced that, without anti-libertrian intervention
by Congress and the Supreme Court, we wouldn't still be segregated today.

~~~
tptacek
Well, you disagree with many (most?) libertarians on this point. They think
we'd have reached the same freedom from formal racial discrimination that we
have today without starting us down the slippery slope of telling businesses
who they have to associate with. I'm not sure that's damning.

Obviously I agree with you on this, but after years of having to confront
smart people on HN who disagree with me _fundamentally_ on issues like this,
I'm trying to keep a more open mind.

~~~
gatlin
Without a hint of sarcasm, I genuinely admire your resolve to be open minded
no matter how patently stupid an idea is. I'm not as open minded as you; some
day I'd like to be.

The moment someone can supply an objective, verifiable, scientifically valid
_proof_ that formal discrimination would have ended on its own, then I'll
consider it. Otherwise, it sounds like after-the-fact rationalizing from
people who were part of the problem and ashamed of themselves (as they should
be). Ideology and academic hand-waving about the principles of some Invisible
Hand moving society forward simply did nothing. The hands that broke the
shackles were very visible, covered in dirt sweat and blood, and very
pragmatic.

In general, I steer clear of ideological decisions with hand-wave philosophies
which hold their conclusions to be self-evident. I see a lot of this in
economic discussions, too. My challenge is for these ridiculous vapid
ideologies to come with formal justification that doesn't involve circular
reasoning or false premises.

~~~
danielweber
_someone can supply an objective, verifiable, scientifically valid proof that_

How could you do this for _any_ counter-factual of a government policy? Is
criticism of the PATRIOT Act stupid if someone cannot provide an objective,
verifiable, scientifically valid proof that we wouldn't have been attacked
without it?

~~~
gatlin
I did a poor job of explaining myself despite my over-sized rhetoric. It's one
thing to point to specific provisions of a policy and say "In the following
case, Provision A had Effect B" and show the specifics. It's another to
espouse platitudes with to backing data about a hypothetical scenario and
claim ideological superiority.

So, no, criticisms of the Patriot Act backed by data are not stupid,
especially if the criticism is up front and says "we _believe_ this to be
true."

------
gojomo
We wouldn't accept any federal agency enforcing "Printing Press Neutrality",
requiring the owners of printing presses to submit to government rulemaking
about what pamphlets, periodicals, and books are printed on their presses. We
would understand, instinctively, that having government involved in such
matters is inviting the fox into the henhouse.

For some reason, with newer media, the simple principle of "no meddling in
private communications/publishing" gets lost. So we have the FCC, censoring
broadcast media, and used via licensing and ownership rules to extract
'favors' for the political classes. And we have people who are ostensibly in
favor of free speech inviting this censorious, political-establishment-
subservient agency into Internet regulation. No, thank you.

There's no need to tame the Internet to be safe and 'neutral'/neutered like
regulated broadcast TV. It's working just fine without the FCC's enlightened
approach, which historically has included set-asides for certain favored
classes of programming [1], moral crusades, and other benefits for the
politically-connected [2].

[1] <http://reason.com/blog/2008/06/17/the-fccs-obsolete-quotas>

[2] [http://reason.com/archives/2008/06/12/the-central-
committee-...](http://reason.com/archives/2008/06/12/the-central-committee-is-
in-se)

~~~
angersock

      For some reason, with newer media, the simple principle of
      "no meddling in private communications/publishing" gets 
      lost.
    

You _do_ realize that the same principle is hardly something that a free
market would automatically support at reasonable price to the user, right?

    
    
      It's working just fine without the FCC's enlightened 
      approach
    

You're not a Time Warner Cable customer, or Cox, or subject to throttling very
much, are you?

~~~
tptacek
What's a "reasonable price"?

A penny taken off the monthly cost of Internet access by fiat is a penny
subsidy granted to Internet service customers.

In a competitive market for Internet service, providers can't gouge customers
because they'd lose to competitors that didn't.

You are making a stronger argument against local service cable, copper loop
and RF monopolies than you are against the libertarian opposition to net
neutrality.

~~~
beernutz
That is exactly the point though. Since there AREN'T enough competitors, the
free market does not work. BEING a competitor means laying cable, getting
right-of-ways, getting other permissions from local government, etc. It is not
something where several competitors will spring up offering better service
and/or better price when one bad actor decides to disallow skype on their
network for instance.

When the market fails to provide a fix, the government should step in to keep
the public from being at the mercy of greedy monopolies.

~~~
tptacek
It's also very difficult to start a new car company. But we don't have "car
neutrality".

------
b0rsuk
My quick and dirty analogy:

Imagine a world where each street is owned by a company. Then they start
deciding who is allowed to drive which road. People who pay for the premium
package don't have to stop at red lights, and right of way. Freetards aren't
allowed between 08am and 12am. Only bicycles with UEFI are permitted.

~~~
tzs
I once asked on a libertarian forum what would happen in that kind of world,
where all streets and roads are privately owned, if someone were able to
acquire ownership of a closed set of roads that separated me from things I
need to live, and refused to give me permission to travel on his roads and
refused to give permission to anyone who was bringing me stuff.

I was told why this would not be a problem: under libertarian property theory,
ownership is initially established over a resource by using it. Thus, land
becomes owned by the first person to start making use of it. This ownership
only extends to that which is being used.

This means that most land is only owned at the surface, and as far enough down
as is necessary to provide support for the surface land. Thus, I am free to
TUNNEL UNDER THE ROADS, as long as I go deep enough and do it in a way that
does not cause damage to the roads. I can thus tunnel my way under the
enclosing roads out to someplace where I am welcome.

~~~
tptacek
Isn't this a little silly, though? It's not the universal libertarian position
that all functions of governments are best served by free markets. The real
position is: those functions of government that _can_ be served by markets
_should_ be.

A basic functional system of transportation sufficient to enable (but not
optimize) commerce seems like something that could reasonably require a
government to operate.

~~~
tzs
That some functions can't be well served by free markets and so there does
need to be some government seemed to be the most common form of libertarianism
years ago, but the impression I get nowadays based on online activity is that
the "everything can be handled by the free market" form has gotten the upper
hand. Or maybe they are just louder?

~~~
tptacek
I think that's called Message Board Libertarianism.

------
slavak
" Specifically, the groups say that compelling private companies to “speak,”
by requiring them to carry all traffic across their networks, instead of
allowing them to discriminate as they see fit, violates the principle of
freedom of speech. "

As someone pointed out in the comments below the article, this seems like a
path the ISPs _really_ don't want to go down. If you equate all packets
running through your network to your speech, then you're implicitly making
yourself responsible for their contents. This is hardly in their best
interests, considering the amount of pirated content, [everyone's favorite
boogeyman] kiddy-porn, and God-knows-what-else running down their pipes every
day.

------
joelrunyon
The actual article (not the comment section) - [http://arstechnica.com/tech-
policy/2012/07/libertarians-make...](http://arstechnica.com/tech-
policy/2012/07/libertarians-make-the-case-net-neutrality-is-unconstitutional)

------
geon
I read sometimes about how few choices you US people have when buying your
Internet connection. Something about only a single ISP allowed by the city
etc.

That would make your ISP the de facto government for your online activities. A
government that is potentially very invasive, inspecting your every data
package, limiting your access to certain sites and dictating what kind of
content you can download at full speed.

How is that libertarian?

~~~
tptacek
That's a non sequitur question. A circumstance in a particular market isn't
"libertarian" or "not libertarian".

A libertarian would say, people should be free to make and enforce promises
among themselves, and the government should constrain itself to those roles
that can't be performed by markets.

Libertarians by and large don't believe in "antitrust". The market is, a
libertarian would reason, inevitably more powerful than any temporarily
dominant firm. If a cartel of ISPs emerged from a free-market approach to
Internet governance, that cartel would either (a) be an optimal solution to
the requirements of Internet users or (b) eventually worked around and
eventually replaced by alternate offerings in the market.

~~~
beernutz
Doesn't that ignore the effect of government granted monopolies? Since some
ISPs are granted monopoly status by local governments, by definition the free
market can't work. So, as in cases of civil rights, maybe the answer IS to
attach neutrality conditions to such monopolies?

~~~
tptacek
A libertarian would throw up in their mouth at the idea of a government-
granted monopoly.

~~~
angersock
So, they have little-to-nothing useful to say on the current state of affairs
for modern ISPs and telcos, then? And are instead just wanking around a
mythical tabula-rasa marketplace?

~~~
tptacek
No. Obviously, a libertarian would say, "instead of changing the law to
further enhance state control over the Internet, we should enact _different_
laws to deregulate local last-mile telecom".

------
snowwrestler
I propose a simple compromise in which ISPs can elect into one of two
regulatory statuses:

 __Unregulated and unprotected __\- The ISP is free to "curate" the content
they deliver to customers as they see fit. However, customers may also hold
the ISP responsible for their content, for example by initiating civil
litigation if pornography is delivered.

 __Regulated and protected __\- ISPs cannot be held legally responsible for
the content they deliver, but they must deliver all content requested by
customers, in accordance with published tiers of service and rate cards.

------
Pewpewarrows
Just to play Devil's Advocate, this is what I'd imagine the average
Libertarian response to this would be:

In a free market the consumers hold the power. An ISP that didn't restrict
Internet usage or tier what it offered would become in-demand, and would
profit and succeed more than the others. In other words, the market would
correct itself towards those ISPs that espoused the principles of staying
neutral. If that didn't happen, then net neutrality isn't a big enough concern
to drive the average consumer's purchase.

It's a simplified generalization, but take from it what you will.

~~~
beernutz
That argument would hold sway if being an ISP did not have such a huge barrier
to entry. Having to run physical cables GREATLY reduces the pool of business
that can afford to enter that market. This of course, reduces the number of
competitors, and the market pressure to compete.

~~~
tptacek
So should we have "neutrality" in every market with large barriers to entry?
Drug neutrality? Railroad neutrality? Automotive manufacturing neutrality?

~~~
beernutz
Actually that seems like an interesting idea! If we did, maybe we could have
non-proprietary car parts for instance? Better drugs? Fewer patent monopolies
granted?

Am I missing something fundamental in your point?

~~~
tptacek
No. You just have a _much_ more expansive view of the role of governments in
the markets than I do.

------
roguecoder
Why shouldn't the government, as the representative of the people, place
constraints in its contract with the providers? There is nothing compelling
them to provide service, rather than a different provider. It is unfair to
call this a libertarian position: it is the position of some specific
capitalist-anarchist-libertarians. Not all libertarians see the social
contract as less valid than other sorts, nor do all libertarians believe
freedom of business trumps the freedom of consumers.

------
alrs
Useful Idiots: <http://en.wikipedia.org/wiki/Useful_idiot>

------
carsongross
If I say something in defense of libertarians, will I get down-voted and burn
through karma? Experience says that the answer is yes.

What are the implications for the level and type of discussion here at HN?

~~~
tptacek
There are lots of libertarians on HN. As a liberal, the impression I
personally get is that I'm outnumbered by them.

I think these impressions come in part from which threads you choose to join.
If you restricted yourself to threads about Airbnb and Uber, you'd be forgiven
for assuming that this was a Cato board.

------
ucee054
I agree with Ted Stevens... <http://www.youtube.com/watch?v=f99PcP0aFNE>

