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Showing 9 of 143 Publications by Ben Sperry
TOTM Despite the simplistic narrative tying President Trump’s vision of the world to conservatism, there is nothing conservative about his views on the First Amendment and how it applies to social media companies.
Yesterday was President Trump’s big “Social Media Summit” where he got together with a number of right-wing firebrands to decry the power of Big Tech to censor conservatives online. According to the Wall Street Journal…
Read the full piece here.
TOTM After spending a few years away from ICLE and directly engaging in the day to day grind of indigent criminal defense as a public defender, I now have a new appreciation for the ways economic tools can explain behavior that I had not before studied.
After spending a few years away from ICLE and directly engaging in the day to day grind of indigent criminal defense as a public defender, I now have a new appreciation for the ways economic tools can explain behavior that I had not before studied. For instance, I think the law and economics tradition, specifically the insights of Ludwig von Mises and Friedrich von Hayek on the importance of price signals, can explain one of the major problems for public defenders and their clients: without price signals, there is no rational way to determine the best way to spend one’s time.
ICLE White Paper This white paper counsels extreme caution in the use of past statistical studies of the purported effects of health insurance company mergers to infer that today’s proposed mergers — between Aetna/Humana and Anthem/Cigna — will likely have similar effects.
This white paper counsels extreme caution in the use of past statistical studies of the purported effects of health insurance company mergers to infer that today’s proposed mergers — between Aetna/Humana and Anthem/Cigna — will likely have similar effects. Focusing on one influential study — Paying a Premium on Your Premium (“Paying a Premium”) by Dafny, Duggan & Ramanarayanan (“Dafny, et al.”) — as a jumping off point, we highlight some of the many reasons that past is not prologue.
In short: extrapolated, long-term, cumulative, average effects drawn from 17-year old data may grab headlines, but they really don’t tell us much of anything about the likely effects of a particular merger today, or about the effects of increased concentration in any particular product or geographic market.
ICLE White Paper Late last year, Tim Wu of Columbia Law School (and now the White House Office of Management and Budget), Michael Luca of Harvard Business School (and a consultant for Yelp), and a group of Yelp data scientists released a study claiming that Google has been purposefully degrading search results from its more-specialized competitors in the area of local search.
Late last year, Tim Wu of Columbia Law School (and now the White House Office of Management and Budget), Michael Luca of Harvard Business School (and a consultant for Yelp), and a group of Yelp data scientists released a study claiming that Google has been purposefully degrading search results from its more-specialized competitors in the area of local search. The authors’ claim is that Google is leveraging its dominant position in general search to thwart competition from specialized search engines by favoring its own, less-popular, less-relevant results over those of its competitors:
To improve the popularity of its specialized search features, Google has used the power of its dominant general search engine. The primary means for doing so is what is called the “universal search” or the “OneBox.”
This is not a new claim, and researchers have been attempting (and failing ) to prove Google’s “bias” for some time. Likewise, these critics have drawn consistent policy conclusions from their claims, asserting that antitrust violations lie at the heart of the perceived bias.
But the studies are systematically marred by questionable methodology and bad economics. The primary difference now is the saliency of the “Father of Net Neutrality,” Tim Wu, along with a cadre of researchers employed by Yelp (one of Google’s competitors and one of its chief antitrust provocateurs ), saying the same thing in a new research paper, with slightly different but equally questionable methodology, bad economics, and a smattering of new, but weak, social science.
ICLE White Paper "It’s no surprise to anyone that illegal activity happens online. What may be surprising, however, is that one of the central figures in administering core Internet functions is deeply ambivalent (at best) about its role in preventing illicit online activity..."
“It’s no surprise to anyone that illegal activity happens online. What may be surprising, however, is that one of the central figures in administering core Internet functions is deeply ambivalent (at best) about its role in preventing illicit online activity.
Since 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) has been the organization tasked by the U.S. government with overseeing the Domain Name System (DNS). The DNS is the system that enables domain names to resolve — meaning that when you type “google.com” in a browser address window you will reliably receive Google’s search engine each time. That reliability is a boon for Internet users, most of the time. But much mischief can be conducted through web sites, as well, and a system that reliably serves up these sites imposes costs on its users.
Take one recent example. In July 2015, a Bloomberg News piece from “bloomberg.market” indicated that Twitter was in talks over a $31B USD buyout. Naturally, the value of Twitter stock shot up before returning to normal. The problem, however, was that it was a totally fabricated event, one that the currently lax accountability regime underlying the DNS only makes easier.
One would think that ICANN would have effective procedures in place for removing (or otherwise sanctioning) domain names created or used for illegal purposes. However, even though it possesses contractual control over its registries and registrars (the entities responsible for managing and registering top level domains and domain names), the practical reality is that illegal conduct is rarely ever deterred by ICANN.
The consequences of ICANN’s non-action are evident. ICANN has refused to effectively deter content piracy on the Internet, and pirated content currently constitutes something on the order of 25% of Internet traffic. It has also overseen an inexorable increase in websites dedicated to phishing scams. As of December 2014, phishing occurred in 19% of the new gTLDs — and nearly two-thirds of the phishing occurred in just one gTLD (.XYZ). To date ICANN has steadfastly refused to take action despite the significant cost that its refusal — ostensibly rooted in its desire not to regulate Internet content — imposes on community members.
ICANN has an accountability problem.”
Written Testimonies & Filings "The Digital Single Market Strategy (“DSMS”) initiative represents a unique opportunity to unify regulation across the EU’s member states around policies that promote transparency, stability, free trade, innovation and global economic growth..."
“The Digital Single Market Strategy (“DSMS”) initiative represents a unique opportunity to unify regulation across the EU’s member states around policies that promote transparency, stability, free trade, innovation and global economic growth. As the Commission undertakes to integrate the digital economy into the EU’s single market strategy, however, care should be taken to assure that the principles driving the explosive growth of the Internet are encouraged and not suppressed.
As companies contemplate new business models, new content distribution services, new uses for data and new opportunities for valuable data exchange, it is important that regulation not create a legal environment in which valuable products are inefficiently delayed, degraded or abandoned. Effective and efficient policies flow from basic, well-established economic and legal principles that maximize welfare by, among other things, minimizing error costs, promoting innovation, encouraging voluntary and self-help remedies, prioritizing self-regulation, minimizing institutional and bureaucratic costs, and capitalizing on the incentives and informational advantages of market participants…”
“Importantly, the decision with respect to a new regulatory regime for online platforms is not made in a vacuum; rather, it is a choice between existing rules and the proposed alternatives. Justifying new rules demands a comparison to existing rules, meaning rigorous evidence not only that there is a problem, but also that any problems will be better addressed by new rules than current rules. No regulatory regime is perfect. Even if there are some identifiable problems with the current rules, that alone does not mean that any particular proposed new rules are preferable. The Commission should carefully consider existing law (like competition and consumer protection laws at both the EU and member-state levels) and whether new rules will bring the overall regulatory scheme closer to the optimal level.”
Amicus Brief "The Order represents a substantial and unprecedented expansion of the FCC’s claimed authority. The Commission asserts authority to implement agency-defined policy by any means over the entire broadband communications infrastructure of the United States..."
“The Order represents a substantial and unprecedented expansion of the FCC’s claimed authority. The Commission asserts authority to implement agency-defined policy by any means over the entire broadband communications infrastructure of the United States—in the words of FCC Chairman Wheeler, “[t]he most powerful network ever known to Man”1—under the auspices of FCC regulation; and it assumes the ability to regulate even beyond this already incredibly broad scope on an “ancillary” or “secondary” basis so long as such regulation has at least a Rube-Goldberg-like connection to broadband deployment. In the Order, the Commission claims authority that it has consistently disclaimed; it ignores this court’s holding in Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (“Verizon”); and it bends to the point of breaking the statutory structure and purpose of the Communications and Telecommunications Acts. For all of these reasons, the Order should be rejected as exceeding the Commission’s statutory authority and as presenting and addressing major questions—questions of “deep economic and political significance,” see, e.g., King v. Burwell, No. 14-114, slip op. at 8 (2015)—that can only be addressed by Congress. See Randolph May, Chevron Decision’s Domain May Be Shrinking, THE HILL (Jul. 7, 2015), http://thehill.com/blogs/pundits-blog/the-judici- ary/247015-chevron-decisions-domain-may-be-shrinking.
The Commission’s authority is based in the 1934 Act, as modified by the 1996 Act. The general purpose of the 1934 Act was to establish and maintain a pervasively-regulated federal telephone monopoly built upon a relatively simple and static technology. This was the status quo for most of the 20th century, during which time the FCC had authority to regulate every aspect of the telecommunications industry—down to investment decisions, pricing, business plans, and even employment decisions. As technology progressed, however, competition found its way into various parts of the industry, upsetting the regulated monopoly structure. This ultimately led to passage of the 1996 Act, the general purpose of which was to deregulate the telecommunications industry—that is, to get the FCC out of the business of pervasive regulation and to rely, instead, on competition. This objective has proven effective: Over the past two decades, competition has driven hundreds of billions of dollars of private investment, the telecommunications capabilities available to all Americans have expanded dramatically, and competition—while still developing— has increased substantially. The range of technologies available to every American has exceeded expectations, at costs and in a timeframe previously unimagined, and at a pace that leads the world…”
Amicus Brief The Order represents a substantial and unprecedented expansion of the FCC’s claimed authority. The Commission asserts authority to implement agency-defined policy by any means over . . .
The Order represents a substantial and unprecedented expansion of the FCC’s claimed authority. The Commission asserts authority to implement agency-defined policy by any means over the entire broadband communications infrastructure of the United States—in the words of FCC Chairman Wheeler, “[t]he most powerful network ever known to Man”[1]—under the auspices of FCC regulation; and it assumes the ability to regulate even beyond this already incredibly broad scope on an “ancillary” or “secondary” basis so long as such regulation has at least a Rube-Goldberg-like connection to broadband deployment. In the Order, the Commission claims authority that it has consistently disclaimed; it ignores this court’s holding in Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (“Verizon”); and it bends to the point of breaking the statutory structure and purpose of the Communications and Telecommunications Acts. For all of these reasons, the Order should be rejected as exceeding the Commission’s statutory authority and as presenting and addressing major questions—questions of “deep economic and political significance,” see, e.g., King v. Burwell, No. 14-114, slip op. at 8 (2015)—that can only be addressed by Congress. See Randolph May, Chevron Decision’s Domain May Be Shrinking, THE HILL (Jul. 7, 2015).
The Commission’s authority is based in the 1934 Act, as modified by the 1996 Act. The general purpose of the 1934 Act was to establish and maintain a pervasively-regulated federal telephone monopoly built upon a relatively simple and static technology. This was the status quo for most of the 20th century, during which time the FCC had authority to regulate every aspect of the telecommunications industry—down to investment decisions, pricing, business plans, and even employment decisions. As technology progressed, however, competition found its way into various parts of the industry, upsetting the regulated monopoly structure. This ultimately led to passage of the 1996 Act, the general purpose of which was to deregulate the telecommunications industry—that is, to get the FCC out of the business of pervasive regulation and to rely, instead, on competition.[2] This objective has proven effective: Over the past two decades, competition has driven hundreds of billions of dollars of private investment, the telecommunications capabilities available to all Americans have expanded dramatically, and competition—while still developing—has increased substantially. The range of technologies available to every American has exceeded expectations, at costs and in a timeframe previously unimagined, and at a pace that leads the world.[3]
Today, many Americans are continuously engaged in online interactions. The Internet is the locus of significant political and educational activity; it is an indispensable source of basic and emergency news and information; it is a central hub for social interaction and organization; it is where people go to conduct business and find work; it is how many Americans engage with their communities and leaders; and it has generated hundreds of billions of dollars of annual economic activity.
Regulation of the Internet, in other words, presents questions of “vast ‘economic and political significance,’” Utility Air Regulatory Group v. Envtl. Prot. Agency, 134 S. Ct. 2427, 2444 (2014) (“UARG”), as substantial as any ever considered by a federal agency.
While the Commission disclaims authority to regulate significant swaths of the Internet ecosystem, the Order is nonetheless premised on interpretations of the 1934 Act that do give it authority over that ecosystem. This court should greet the Commission’s claimed authority with substantial skepticism. See UARG, 134 S. Ct. at 2444 (“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism.”) (emphasis added) (quoting Brown & Williamson v. Food & Drug Admin., 529 U.S. 120, 159 (2000) (“Brown & Williamson”). This is especially true given the statutory structure and purpose of the 1996 Act and the Commission’s historical, hands-off approach to the Internet. See King v. Burwell, slip op. at 15 (courts “must turn to the broader structure of the Act to determine the meaning” of language within a statute). Although this court addressed and rejected a challenge to the 2010 Order on these grounds, the Supreme Court has in the intervening months decided two cases—UARG and King v. Burwell—that revitalize the challenge, especially given the 2015 Order’s more aggressive posture.
The FCC claims that new rules were needed to prevent blocking, throttling, and discrimination on the Internet. But the poor fit between the Commission’s preferred regulatory regime and the statutory authority upon which it rests is manifest. This disconnect is made clear by the numerous effects of the regulations that the Commission must describe as “ancillary” or “secondary,” and the numerous statutory provisions that must be forborne from or otherwise ignored in order to make the Order feasible.
In short, the Order rests upon a confusing patchwork of individual clauses from scattered sections of the Act, sewn together without regard to the context, structure, purpose, or limitations of the Act, in order to “find” a statutory basis for the Commission’s preferred approach to regulating the Internet. As such, it fails to “bear[] in mind the ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’” UARG, 134 S. Ct. at 2441 (quoting Brown & Williamson, 529 U.S. at 133).
Accordingly, the court should vacate the Order
[1] See Remarks of FCC Chairman Tom Wheeler, Silicon Flatirons Center (Feb. 9, 2015) at 5, available at https://www.fcc.gov/document/chairman-wheeler-siliconflatirons-center-boulder-colorado.
[2] See, e.g., FCC Chairman William Kennard, A New Federal Communications Commission for the 21st Century, I-A (1999), available at http://transition.fcc.gov/Reports/fcc21.html. (“With the passage of the Telecommunications Act of 1996, Congress recognized that competition should be the organizing principle of our communications law and policy and should replace micromanagement and monopoly regulation.”).
[3] See id. (“[A]s competition develops across what had been distinct industries, we should level… regulation down to the least burdensome level necessary to protect the public interest. Our guiding principle should be to presume that new entrants and competitors should not be subjected to legacy regulation.”)
Scholarship Is net neutrality necessary to protect First Amendment values in the 21st Century? Or does the First Amendment actually prevent net neutrality regulation? How can both of these questions be considered simultaneously?
Is net neutrality necessary to protect First Amendment values in the 21st Century? Or does the First Amendment actually prevent net neutrality regulation? How can both of these questions be considered simultaneously?
At issue is a conflict of visions about the nature of the liberty protected by the First Amendment. Philosopher Isaiah Berlin famously described two clashing concepts of liberty — negative and positive. Simply, negative liberty is freedom from external interference. Positive liberty, on the other hand, is freedom to do something, including having the power and resources necessary to do it.
For example, negative liberty means that no one may rightfully take my property away from me without my consent. Positive liberty means that I have a right to health care that must be provided for me if I cannot afford it on my own.
Positive rights necessarily involve at least some subjugation of the rights of others. A right to health care, for instance, would violate the rights of those who must provide or subsidize health care services without their consent. Further, it would infringe upon others’ positive rights insofar as there are scarce resources available to pay for all such rights.
Conversely, negative rights are compossible with one another, which means all people could hold them simultaneously. These rights apply only against aggressors—e.g., rapists, murderers, and thieves—and not against those who are respecting the rights of others.
In this article, we examine the debate over the First Amendment merits of the Federal Communications Commission’s (“FCC”) “Open Internet” Order issued in March 2015.
