[governance] Net neutrality: Definitions

[Paul Lehto]

On 8/16/10, Karl Auerbach <karl at cavebear.com> wrote:
> Given that, at least in the USA, well over 90% of the net, and perhaps
> closer to 99%, is owned by private entities, a policy that defines net
> neutrality on a non-privately owned/operated "public internet" would be
> a policy of very limited scope.

Your focus on ownership to the exclusion of other factors is
misplaced.  IN the last few days, I attended a "county fair" held on
private land and yet all kinds of legal rights "followed' me there, I
stopped by a privately owned shopping mall and my rights followed me
(even free speech rights), and I went blueberry picking on private
land with the permission of the owner, who lets anyone pick there for
free that wishes to.

Even though the fair and the shopping mall are also privately owned
land, only in the last case of the blueberry "private" land is the
situation akin to what you mis-describe as the "private internet."  In
fact, it would be NEARER to the truth  to call them a "public fair"
even though it's "private" land,  and a "public shopping mall" even
though it's on private land.

The fact is, as soon as anyone is invited or tolerated to be on
"private' land or property (including a website) a whole new legal
regime of rules comes in, and they are "invitees" or "business
invitees" in the case of real (land) property and are owed definite
legal duties by the owners, regardless of whether they buy anything or
not.

So long as  I'm not breaking through a firewall or hacking in some
way, the internet as the typical person experiences it is virtually
the same (legally)  throughout the "privately" and publicly owned
parts.  This is sufficiently true that many websites will attempt to
alter those rules an obtain waivers of some rights via contractual
terms of service, EULAs and the like.  But the law is all still
"there" in the "private' internet, including the law related to what
people can legitimately agree to or not agree to via a contract term
or EULA.

To cut to the chase, the "public" vs. "private" distinction is only
relevant in one important sense.  if it is deemed "private", as a
matter of mere politics and persuasion the rhetorical deck is stacked
in favor of private parties making law via contract and EULA.  If the
internet  is considered "public" then of course only the public makes
the law.  But even in the "private" sector, government laws structure
and control all of contract law, anti-fraud protections, and so on.
The FCC may not have been delegated authority over this, but that
doesn't mean Congress and parliaments around the world don't have the
authority within their jurisdiction - because they do.  The FCC only
lacks power because the first element it must always prove is that it
has had power delegated to it by the Congress.

 In a nutshell, the real battle is between "legislation to preserve
pubilc goods on the internet" vs.  "let the market decide, via
laissez-faire capitalism, how much public good there ought to be on
the internet."  Whether or not that's Karl's way of thinking about it
(which I doubt) that's really what it boils down to.

-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-2334
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance

Translate this email: http://translate.google.com/translate_t