Give Us Liberty

Friday, December 10, 2010

Occupant Obama poised to steal the Internet
With a straight face that would suggest they had the authority to do so, the Federal Communications Commission is poised to steal the Internet after new rules are introduced on Dec. 20, by simply declaring it has the right to regulate it. Their logic? The left will assure you their reasoning has nothing to do with the fact that more people today get their news from unvetted alternate news sources on the Net than they do from the liberal mainstream media. The problem? Internet journalists tend to reports the news without coloring it with the communist red brush of political correctness.
With Sen. Jay Rockefeller's cyberspace strangulation bill, the Cybersecurity Act of 2009, still hung up in Committee, and not likely to find its way out before Jan. 3, 2011, the far left sees little hope of it passing any time soon. Particularly since the Democrats no longer have a filibuster-proof Senate. Even badly outnumbered in the Senate, the GOP can once again exercise the right of the filibuster to block any piece of legislation they don't want to reach the floor. Implementing legislation that has neither cleared the obstacles in Committee nor a floor vote may be rare, but in their zeal to "protect the people," the social progressive zealots in the bureaucracy are not adverse to writing the rules and regulations of bills that were never enacted if they believe they are needed—even when they fall into a legislative black hole in committee.
One such "law" was the Health Claims Act, which was proposed as a rider to Nutrition Labeling and Education Act of 1990. A health claim is a statement in a printed advertisement, or an oral statement made at the point of sale, that a food or substance can be used to prevent, treat or mitigate a medical condition. In 1990, the FDA published the regulations and guidelines to implement the Health Claims Act that was stripped from the Nutrition Labeling legislation before it was signed into law,. Shortly thereafter FDA agents visited 57-year old Sissy Harrington-McGill's pet store—without a search warrant as required by the 4th Amendment—and ransacked it, looking for vendor brochures Harrington-McGill gave to several of her customers advising them that regularly giving their pets vitamins would keep them healthy. Finding the damning evidence, they arrested her. When her day in court arrived, Harrington-McGill discovered the federal judge intended to dispose of the case immediately. When Harrington-McGill demanded her 7th Amendment right to a jury trial, the federal magistrate denied her request although the 7th Amendment gives the accused the right to a jury trial where the value of the controversy exceeds $20. (The FDA seized the entire inventory of Harrington-McGill's business. On top of that, the fine she faced under the never-enacted Health Claims Act was $10,000.). She was sentenced to 179 days in jail and fined $10 thousand, adding the color of legitimacy to the FDA's seizure and disposal of her property. One hundred-fourteen days later, the judge was forced to free her from jail for violating a law that did not exist. Even though her constitutional rights were violated by the FDA and their accomplice, the federal magistrate that railroaded her for violating a nonexistent law, the FDA succeeded in doing what they set out to do—intimidate small business owners for extolling the virtues of health supplements. Now, it appears the FCC has picked up the gauntlet and will attempt to implement Rockefeller's failed Cybersecurity Act of 2009 by decree.
The Obama Administration blames the Tea Party Revolution on the American conservatives' unfettered access to the Internet. That appears to be the real reason the Administration authorized The Federal Communications Commission [FCC] to regulate the Internet. The excuse given by the FCC—one of the reasons in FCC Chairman Julius Genachowski's draft document of his proposed regulations for regulating the Internet, complete with over 550 footnotes—and an official FCC stamp that says "Nonpublic. For internal use only" to assure that no one outside the FCC sees it until the rules are approved on Dec. 21. This will be Barack Obama's "Christmas Surprise" for the American people.
The reason regulations are needed? Genachowski is prepared to answer this one with "a straight face," as well. It reminds me of Franklin D. Roosevelt when he proposed the Communications Act of 1933. FDR was concerned, he said, because newspapers lie about their circulation.
On Wed., Dec. 1, Genachowski announced to the media that he had circulated his draft rules memo. He said it will "...preserve the freedom and openness of the Internet," adding that the federal government will increase the freedom of online services because, he noted, heavy use in some areas of the Internet slow the "web experience" for everyone sharing the same information superhighway lines. The example he cited was people watching movies that consume too much bandwidth. (In point of fact, the only computers affected by the "web experience" of someone watching a Netflix movie are the other computers hooked up to the same Internet feed—in that home or business. What Genachowski and Obama are doing is "playing Roosevelt."
In 1933, Roosevelt used whatever excuse his Brain Trust could muster to seize control of the fourth estate. Once the newspaper industry was under his thumb, Roosevelt knew he could control them by forcing every newspaper in America to apply for, and be granted a license, to operate.
Licensing the fourth estate would give the White House the power of life and death over every newspaper in America. When any newspaper crossed the proverbial line and spoke out against his policies, he could pull their license and shut them down. Or, just the fear of having their license suspended, or not renewed, would force them to toe the line he had already drawn in the sand. In the end, Roosevelt's coup d' etat of the newspaper industry was defeated by Sen. Thomas Schall [R-MN] who argued (in a very public newspaper op ed war with FDR) that because newspapers are protected by the 1st Amendment, Roosevelt could not regulate them. In the end, when the gutted Communications Act of 1933 was signed into law, FDR was allowed to regulate radio and, a few years later, television—since they were not construed by Pennsylvania Avenue lawyers to be "the press." And while he won the battle, Schall lost war. A constant thorn in FDR's side, Schall, who was legally blind, was struck by a hit-and-run driver while walking across a busy street in Cottage City, Maryland on Dec. 19, 1935. He died three days later on Dec. 22.
The same legislation that differentiated between newspaper and radio by erasing 1st Amendment protection for the newly developed electronic media that did not exist in 1787 also created the FCC and put it "in charge" keeping the fourth estate in check.
Although the federal judiciary has extended 1st Amendment protection to the Internet (May 27.2006), Barack Hussein Obama believes he has the executive authority, without legislation enacted by Congress, to arbitrarily regulate who uses cyberspace and what access they may enjoy based entirely on the content of the material they wish to publish there.
In American Civil Liberties Union v Reno, a panel of federal judges ruled that that the Internet is a "...publishing medium [in which]...personal home pages are the equivalent of individualized newsletters about that person or organization." (929 F. Supp at 837). The judges concluded that the Internet deserves at least as much protection under the 1st Amendment as printed matter receives. The appellate court judges emphasized that any analysis of the 1st Amendment protections afforded to a particular medium of mass communications must focus on the underlying technology that brings the information to the user. Thus, they concluded, the Supreme Court's two primary theories for government regulation of any form of broadcast communications content—NBC v United States (319 US 190[1943]) and FCC v Pacific Foundation (438 US 726 [1978]) do not justify government regulation of the Internet.
Which, of course, is why Jay Rockefeller's Cybersecurity Act of 2009 is still suspended in limbo. And, that also explains why Obama will use the FCC plans to implement control of cyberspace by fiat. Obama insists he has that right, and that he can regulate the Internet through the FCC—which regulates the other electronic mediums: radio and television. What Obama really means is that as long as the American people have unfettered access to the Internet, he will be a one-term visitor at 1600 Pennsylvania Avenue.