The Beginning of the End of America’s Bad “No Rules” Internet Policy

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.

That profoundly wrong thing would be a bad U.S. Internet policy and law that grants Internet platforms extraordinary special freedoms with no responsibilities. That would be a deceptive law that originally was dubbed a “Good Samaritan” provision, that in practice has transmogrified into a Franken-standard of injustice that perversely prevents true “Good Samaritans” from aiding the tortured victims they come across. 

Why is this Section 230 legislative reckoning such a big deal?

Internet platforms, Google, Facebook, Amazon, and their Internet Association, have long considered the provision being amended, Section 230 of the 1996 Telecom Act, to be sacrosanct, completely off-limits for change, because they view it as the fount of their fast-growth, winner-take-all, business models and their unbeatable online competitive advantages over offline-originated businesses.  

Why is this the beginning of the end of America’s bad “no rules” Internet Policy? 

Rather than giving Internet platforms ever-increasing freedoms from responsibilities, this legislation will be the first time Congress: will insist on responsibility for their freedoms and accountability for their actions and inactions; and will make it clear that Internet platforms are not above rules and the law -- at least as it relates to fighting online sex trafficking at this time. 

This legislative process is an overwhelmingly bipartisan, moral moment and profile in courage, in coming together to stand up for what is right and just – that in America no one is above the rules and the law; and all have a right to their day in court and equal protection under the law.   

Today, post-election and post-techlash, U.S. Senators and Representatives are only beginning to understand the many pernicious economic, societal, and security ramifications of America’s bad Internet policy that de facto exempts Internet platforms from: all U.S. communications law and regulation; most non-communications Federal and State regulation; all civil liability for what happens on their platforms; and much U.S. sovereign governance.

Internet platforms Google, Facebook, and Amazon, are not only unregulated and unaccountable, they are largely ungoverned. Since the Internet was new to most in 1996 the U.S. Government did not deregulate or privatize it; in hindsight it de facto de-governized it -- a very big and unprecedented difference.

America’s outdated and out-of-control 1996 Internet-first industrial policy has the U.S. Government effectively sanctioning monopoly distributors for information (Alphabet-Google), sharing (Facebook), and ecommerce (Amazon), and surrendering sovereignty to Google, Facebook, and Amazon, to unaccountably intermediate and regulate the lion’s share of U.S. economic and societal interactions.

As a result, few Americans appreciate that their U.S. Government has granted “interactive computer service” platforms sweeping unaccountability to the Government rules and laws that other Americans and American companies must obey. 

More Americans will learn that their Government has de facto demoted them to second-class citizen status, who are unaccountably governed online by a small, specially-empowered, and privileged ruling class, America’s “aristechracy.” This evident “aristechcratic class” operates like privileged, unaccountable, winner-take-all, elites who claim to know what’s best for everyone, and who enjoy a government form of diplomatic immunity from the rules and laws everyone else must follow.

It should be no surprise why populism is so vibrant on both sides of the political spectrum. The game is rigged. Its not a free market, but as government-favored a market as the U.S. Government could design.

Over time, expect Americans and companies to increasingly ask their Senators and Representatives if U.S. Internet policy is supposedly so good for America and Americans, why does it only apply to, and benefit, the winner-take-all Internet platforms and not everyone and every company regardless of technology? Why are they favoring the aristechracy at the expense of most all Americans?

And if U.S. Internet policy is determined to be bad policy for America, expect Americans and companies to increasingly ask their Senators and Representatives why there is not a fair playing field where no one is above rules or outside the law, i.e. equal online-offline accountability under the law like the FOSTA law will do for child sex trafficking enforcement?

Forewarned is forearmed.


Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an internetization consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google.

Asymmetric Regulation Harms Series:

Part 1:   The Internet Association Proves Extreme U.S. Internet Market Concentration [6-15-17]

Part 2:   Why US Antitrust Non-Enforcement Produces Online Winner-Take-All Platforms [6-22-17]

Part 3:   Why Aren’t Google Amazon & Facebook’s Winner-Take-All Networks Neutral? [7-11-17]

Part 4:   How the Google-Facebook Ad Cartel Harms Advertisers, Publishers & Consumers [7-20-17]

Part 5:   Why Amazon and Google Are Two Peas from the Same Monopolist Pod [7-25-17]

Part 6:   Google-Facebook Ad Cartel’s Collusion Crushing Competition Comprehensively [8-1-17]

Part 7:   How the Internet Cartel Won the Internet and The Internet Competition Myth [8-9-17]

Part 8:   Debunking Edge Competition Myth Predicate in FCC Title II Broadband Order [8-21-17]

Part 9:   The Power of Facebook, Google & Amazon Is an Issue for Left & Right; BuzzFeed Op-Ed[9-7-17]

Part 10: Google Amazon & Facebook’s Section 230 Immunity Destructive Double Standard [9-18-17]

Part 11: Online-Offline Asymmetric Regulation Is Winner-Take-All Government Policy [9-22-17] 

Part 12: CDA Section 230’s Asymmetric Accountability Produces Predictable Problems [10-3-17]

Part 13: Asymmetric Absurdity in Communications Law & Regulation [10-12-17]  

Part 14: Google’s Government Influence Nixed Competition for Winner-Take All Results[10-25-17]

Part 15: Google Amazon & Facebook are Standard Monopoly Distribution Networks [11-10-17]

Part 16: Net Neutrality’s Masters of Misdirection[11-28-17]

Part 17: America’s Antitrust Enforcement Credibility Crisis – White Paper [12-12-17]

Part 18: The U.S. Internet Isn’t a Free Market or Competitive It’s Industrial Policy [1-4-18]

Part 19: Remedy for the Government-Sanctioned Monopolies: Google Facebook & Amazon [1-17-18]

Part 20: America Needs a Consumer-First Internet Policy, Not Tech-First[1-24-18]

Part 21: How U.S. Internet Policy Sabotages America’s National Security [2-9-18]

Part 22: Google’s Chrome Ad Blocker Shows Why the Ungoverned Shouldn’t Govern Others [2-21-18]