Berninger v. FCC: Vacate the Open Internet Order as Unconstitutional Violation of First Amendment
"It is a violation of the First Amendment to the United States Constitution for Government to pretend - as the Federal Communication Commission does in the Open Internet Order - the First Amendment does not exist." Daniel Berninger, founder, VCXC, firstname.lastname@example.org
The First Amendment prohibits government interference with the means citizens use to organize. This uniquely American constraint on government reflects the direct experience of the abuses of power motivating the founding. There exist no other country with an equivalent tradition or inclination to advocate for unfettered communication between citizens as an inherent right. The Obama Administration rules downgrade this inherent right to mere privilege the Federal Communication Commission presumes discretion to rescind. As daily life moves online, the failure to recognize and preserve the First Amendment dooms the American Experiment for the same reasons as in 1776. Granting government control over communication forecloses the possibility of a government accountable to the citizenry.
The Supreme Court represents the last line of defense for preserving First Amendment in cyberspace and the dream John Perry Barlow famously articulates in 1997 via The Declaration of Independence of Cyberspace. The Court of Appeals for the District of Columbia Circuit already endorsed the assertion by the Federal Communication Commission of an equivalence between telephone numbers and IP addresses serving as the means to bring the information technology sector under the jurisdiction of the FCC. The decision ends the massively successful and long-standing policy leaving information technology beyond the reach of regulators as per the terms of the AT&T Consent Decree in 1956 and dozens of decisions over the subsequent 60 years by all three branches of government. No one disputes the evidence of a flourishing information technology sector or the fact of a 1000-fold expansion of capacity and services since the privatization of the Internet in 1996. Champions of Internet regulation assert via the Open Internet Order and an embarrassing non-sequitur the urgency of Government regulation to preserve the benefits of non-regulation. The 80-year track record of the Federal Communications Commission includes no examples of success along the lines advocates imagine for rules signed by Franklin Delano Roosevelt in 1934.
The imperative of recognizing First Amendment rights online flows from the movement of speech, press, religion, assembly, and petition to the Internet. The hand-waving by the FCC Chairman disavowing plans to use the new authority does nothing answer the loss of these inherent rights. The newly claimed Internet regulatory powers convey an arbitrary and kingly prerogative without limit against artificial and politized distinctions between end users, edge providers, and ISP's. Adhoc agenda driven distinctions associated with transient and evolving technologies do not invalidate the First Amendment. There exist nothing in the Telecommunications Act of 1934 granting authority over the Internet. The regulations pre-date the transistor not to mention computing and networking. The various speculations advocates for Internet regulation offer do not overcome the long and unbroken track record of government as the enemy of communication between citizens.
The regulatory powers the Obama Administration claim over the Internet in the February 26, 2015, Open Internet Order include no limits at all. There exist no means to reconcile the Open Internet Order with Reno v. ACLU where all nine justices of the Supreme Court voted in favor of vacating the CDA and FCC regulation of the Internet as overly broad and prior restraint against First Amendment rights. If the new rules survive the Daniel Berninger v. FCC challenge at the Supreme Court, the prior Reno precedent disappears as the government of the United States joins the ranks of other governmental censors. The betrayal of James Madison and ending two centuries of tradition holds easily observable dire consequences as per the example the usually routine authority most governments impose on communication between citizens. Sustaining the unique respect for First Amendment protections in America requires charting path different than the attempts at top-down control of online activities in every other country in the world. The Internet represents a new frontier and new opportunity to demonstrate the merits of the American Experiment in the 21st century.
Berninger v. FCC Timeline
Daniel Berninger's 25-year journey in defense of the First Amendment online starting at AT&T Bell Laboratories in 1991 reaches the Supreme Court in 2018 as the culmination of hundreds of events. The timeline below lists the last few steps in this journey leading up to the challenge of the FCC's February 26, 2015, Open Internet Order at the Supreme Court. Additional pointers at the end of the timeline identify key precursor events around the work on Internet voice startups Free World Dialup, ITXC, Vonage, and Hello Digital as well as other initiatives preserving the non-regulatory status of the Internet.