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U.S. Internet policy politics has shifted.

Congress has learned that any new legal accountability for, or regulation of, Internet platforms likely won’t survive court challenge, unless the new legislation also amends a 1996 law, Section 230, that selectively immunizes Internet platforms from most government legal accountability, and federal and state regulation.

Courts have interpreted Section 230 so broadly that Internet platforms like Facebook, Alphabet-Google, Amazon, Uber, and Airbnb, grew confident that they could operate their businesses largely above the rules and outside the law that applied to everyone else.

The proof of this "Jekyll and Hyde" legal double standard, is that this week Congress had to amend section 230 to narrowly override its sweeping Internet platform immunity powers to legally enable child victims of sex trafficking to seek redress for their harms in court.

Yesterday the Senate passed FOSTA, the “Allow States and Victims to Fight Online Sex Trafficking Act,” with 97% support (97-2). Three weeks ago, the House passed it with 94% support, (388-25). Both passed over the strong opposition of Alphabet-Google and some other members of the Internet Association. President Trump is expected to quickly sign it into law.

Note: this post summarizes a Precursor LLC presentation filing for the record of the U.S. DOJ Antitrust Division’s 3-14-18 Roundtable on Antitrust Exemptions & Immunities. See the presentation/filing here.

Presentation Title:

“A Market Divided: U.S. Internet Policy Creates Anticompetitive Asymmetric Accountability.”
Government exemptions and immunities overwhelmingly favor regulatory arbitrage over free market competition. Accountability arbitrage harms: consumer welfare; free market forces; the process of competition; and economic growth.

Executive Summary:

Americans believe in equal accountability, that no one should be above rules or outside the law.

Then why are America’s only unaccountable network monopolies, Alphabet-Google, Facebook, and Amazon, calling for maximal accountability of utility-grade, network-neutrality regulation for their ISP competitors, but no accountability for their own apparent utility-like, monopoly distribution networks?

Americans strongly believe no one should be above the rules or outside the law.

This quintessential founding American value was importantly affirmed this week when the U.S. House of Representatives passed FOSTA, the “Allow States and Victims to Fight Online Sex Trafficking Act,” with 94% support, (388-25) over the strong opposition of some members of the Internet Association. The Senate is expected to pass it in a few weeks, in a similarly overwhelming 90+% fashion. President Trump has indicated he would promptly sign it into law.

Simply, the new law would empower child victims of online sex trafficking to finally be able to sue in court to have websites that knowingly aided or abetted in their trafficking to be held civilly and criminally accountable for their crimes, if they are found guilty in a court of law under due process.

Think about it. What kind of law would require a new law to enable tens of thousands of child sex trafficking victims of unspeakable tortures to just have their rightful day in court to try and prove under due process that they have been illegally violated like any other American rightfully can in every other instance in court?

Something is profoundly wrong here.

A nation divided cannot stand.

America’s Internet policy is so badly divided that America’s national security struggles to stand firm.

The U.S. Government’s outdated, out of control, Internet policy dictates digital division and delivers digital disunion and disorder.

Abraham Lincoln’s most famous speech shared the timeless truth and wisdom that “a house divided against itself cannot stand” when he stood up for what was, and is, right – freedom and equality for all people, not just for the favored.  

Much more than most appreciate, U.S. Internet policy has de facto partitioned America legally into separate online and offline worlds. That may have made sense in the 1990’s when the Internet was nascent, but now when the Internet is pervasively everywhere we live, work, and play, it’s not only “disruptive,” but divisive and destructive too.

SUMMARY

What could possibly go wrong with a nationalized, dual-use, military-civilian, secure 5G wireless network to centralize all military and civilian U.S. transportation traffic control and management with Alphabet-Google as the only commercial wireless ISP “financing/anchor tenant?” Way too much.

Internet users are the forgotten consumers.  

They have been forgotten for over twenty years because America’s Internet policy has been tech-first-consumer-last. 

Hiding in plain sight, U.S. Internet policy prioritizes what’s best for technologies and Internet companies over what’s best for people, because at core it assumed in 1996 and 1998 that whatever is good for Internet technologies and companies is good for Internet consumers.

For many years that appeared to be largely true. However, the cascading revelations this past year -- big societal, economic, and political problems caused by Google, Facebook, Amazon, Twitter, etc. -- prove that core U.S. Internet policy assumption false.

Let’s contrast the Government’s protection of Internet companies with its protection of Internet consumers.

Only three online intermediary platforms command bottleneck distribution control of ~90% of online demand and ~90% of offline supply, with gatekeeper access-power over users and toll-keeper pricing-power over suppliers. They are: Google in information/data; Facebook in social sharing; and Amazon in commerce.

It is no coincidence that the all the monopolizations in the American marketplace today exclusively involve online intermediary platforms; and that they are happening in the only country in the world with a longstanding official, Internet-first industrial policy, that specifically advantages the intermedia companies with permanent blanket protection from competition, regulation, and liability.

How did Google, Facebook, and Amazon become de facto government-sanctioned monopolies?

In 16 minutes I overview for you why there is a woefully incomplete understanding of the U.S. Internet’s three “Standard Oil-like” monopolizations (Google, Amazon, and Facebook) and the four cartelization dynamics these three monopolies have collectively spawned. I also spotlight why there is virtually no understanding of the root cause of these artificial and anticompetitive outcomes. Please see this link to a video (2:30-19:05) courtesy of The Capitol Forum and CQ’s Fourth Annual Tech, Media, and Telecom Competition Conference on December 13, 2017.

My remarks at this conference summarize and expand on my White paper entitled: “America’s Antitrust Enforcement Credibility Crisis: America’s three enduring intermedia monopolies and four market cartelizations are a result of lax, asymmetric antitrust law enforcement & America’s anticompetitive Internet-first industrial policy.”

For a neutrality or non-discrimination principle to have legitimacy, it must be applied neutrally and non-discriminatorily itself, because everyone knows true neutrality means not taking sides.

Non-neutral application of a net neutrality policy takes sides and thus is discriminatory and unfair, the exact opposite of net neutrality’s purported purpose and the definition of its signature word.

Arguably, most all the controversies and conflicts over net neutrality for the last fifteen years have resulted from a supposed neutrality principle applied non-neutrally, to favor Internet intermediary distribution networks like Google, Amazon and Facebook, and cloud computing networks, like Amazon, Microsoft and Google, over legacy communications and content networks.

Today the FCC, in voting 3-2 for the Restoring Internet Freedom Order, is legitimately implementing net neutrality in a neutral fashion, i.e. treating similar information services similarly with the same light touch, under the same market transparency enforcement oversight at the FTC, and not taking sides by non-neutrally, picking winners and losers from the start.