I’m accustomed to finding myself on the same page as the American Civil Liberties Union–and in particular with the razor sharp Jay Stanley, who heads their Technology & Liberty program. But their recent report urging the necessity of net neutrality regulation only makes me more skeptical. I’ve always pretty much shared the position of my colleague Tim Lee: The open, end-to-end nature of the Internet is an important driver of both innovation and free expression–important enough that if it were systematically threatened, there would be a decent case for regulatory intervention. But that end-to-end architecture is also pretty resilient, even if some ISPs might wish otherwise. And while it’s easy to think of deviations from neutrality that would be pernicious, it’s also not hard to imagine specific non-neutral practices that might benefit consumers without undermining that broader end-to-end structure. The real policy question ought to be how to get enough competition in broadband markets that consumer choice selects for the latter against the former. Since broadband isn’t all that competitive in many regions, the question is whether we can afford to wait and deal with problems as they arise in a narrowly tailored way, or whether there’s some urgent need for a broad architectural mandate.

The ACLU says there is, and cites ten terrifying “abuses” that supposedly show the need to legislate now. But as I read over the list, I found I couldn’t help but think of those old Saturday Night Life “Coffee Talk” sketches, where a farklempt Mike Meyers would throw out such food for thought as: “Grape Nuts contain neither grapes nor nuts, discuss.” Because ACLU’s list of abuses mostly consists of examples that either aren’t actually net neutrality violations, or for which there are obvious remedies that don’t require neutrality regulation. Let’s discuss:

• AT&T’s “jamming” of a Pearl Jam concert, in which singer Eddie Vedder’s remarks attacking then-president George Bush were bleeped out of a webcast. Obviously, it would be pretty troubling if your ISP were filtering your datastream to remove political content of which it disapproved. But that’s not what happened here at all. AT&T, via a deal with the Lollapalooza music festival, was streaming the Pearl Jam concert on its own content hub. Now, obviously, whoever was editing the stream and decided to treat criticism of Bush as equivalent to profanity made a highly dubious judgment call, but the point is that AT&T was acting as a content provider here, not a carrier: The filtering happened before the content hit the network, and no proposed neutrality rules I’m aware of would have prohibited this.
• BellSouth’s “censorship” of Myspace. According to BellSouth’s own account, a glitch in their system temporarily left their outraged users unable to access the popular social networking site. “Some suspected” that the company was actually testing some kind of tiered access system, and decided to do so by blocking a popular site without notice, antagonizing their paying customers. Some also suspect the moon landing was faked, but I wouldn’t make it the basis of legislation.
• Verizon briefly denied the abortion-rights group NARAL access to a program whereby users who texted a dedicated “short code” could sign up for SMS updates; the company almost immediately reversed its decision. This is, obviously, not a case involving Internet neutrality, and while it’s certainly a case involving the ability of a network owner to discriminate between users of its network services, the issues involved are pretty different. These “short code” services often permit users to either sign up for fee-based updates or donate money to causes via charge added directly to their monthly phone bill. As indicated by their prompt reversal, the rationale for denying NARAL here–desire to avoid partnering with causes on either side of a “controversial” issue–was probably ill considered, but this is clearly a case where the company is partnering with the provider in a way that goes beyond carriage, because they’re also effectively acting as a payment processor. That means they’ll have an interest in vetting partners in a way you wouldn’t expect a mere carrier to vet every content provider on the network. Even if you think this particular type of discrimination ought to be prohibited, this is really a distinct case raising issues separate from those involved in the Internet Neutrality debate, and ought to be considered separately.
• Proposed filtering for copyright infringement. This is indeed a terrible and, in practice, unimplementable idea–for one because there’s no easy way to distinguish illegal from legal copying (as when I stream music I’ve purchased from my desktop or server to a mobile device). There’s also a pretty good case that this would already be illegal under federal wiretap laws…which may be why the “proposals,” referenced in an article from January 2008, haven’t actually gotten anywhere.

There are a handful of other cases that either may or definitely do count as potentially troubling neutrality violations–the most famous being Comcast’s throttling of BitTorrent traffic. At least two involve ISPs in Canada, which I wouldn’t have thought is the FCC’s problem. In some of these cases, I’d even agree that regulatory action is justified–but by the FTC, not the FCC. If you are advertising access to “the Internet,” then choking off access to whole classes of popular services or degrading throughput well below advertised speeds, well, that’s what we call a deceptive business practice. (In a more libertarian world, this might be handled by another mechanism; in the world we’ve got, it’s the FTC’s lookout.) Maybe there’s a case to be made for more specific transparency rules to establish when and how consumers have to be informed about non-neutral routing policies–certainly no ISP should be allowed to block access to a website and conceal the policy by making it look like a technical glitch–but I have no idea why you’d make the leap to a sweeping architectural mandate before trying something along those lines.

More generally, I’m a little puzzled about why the ACLU is weighing in on this at all. It’s true that ISP routing practices, like the practices of many private firms, could have implications for “free expression” broadly conceived. But not everything that might promote or hinder expression is part of the civil liberties portfolio, which has traditionally been limited to restraints on freedom imposed by government. To the extent federal policies inhibit broadband competition, one might say the government is in some sense complicit in whatever private policies restrict expression, but here again, the obvious remedy is to look for more pro-competitive policies. In any event, this is far enough outside their usual wheelhouse that you’d think it would make more sense for them to remain, well… neutral on this one.

People inside the Beltway seem to think that the only things worth being said and written are said and written in Washington. John David Dyche’s column today makes a good case for the quality of commentary outside the all-knowing capital.

While most everyone in DC is calling the stretch run of the horse race, Dyche steps back and wonders whether the Kentucky Senate race would have been better for citizens if the U.S. Constitution had not been changed to direct election of senators. He thinks it would be.

I am not so certain. As Dyche notes, James Madison thought the representative or indirect aspects of American constitutional democracy would improve public choice. As times has passed, I wonder more and more about the quality of people drawn to all legislatures, including state bodies. Madison thought indirect election wold “refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” Should we still rely on the wisdom of that medium? And yet, what is the alternative? (Todd Zywicki has an informative article on the origins and demise of indirect election of senators).

Dyche works as an attorney in Louisville, Kentucky, and has written a nice biography of Mitch McConnell. His column is worth a regular read, especially if Rand Paul comes to Washington as a U.S. Senator. Dyche would be a good guide to how Paul’s libertarian tendencies are playing out politically back home.

Carl Malamud is a breakthrough thinker and doer on transparency and open government. In the brief video below, he makes the very interesting case that various regulatory codes are wrongly withheld from the public domain while citizens are expected to comply with them. It’s important, mind-opening stuff.

It seems a plain violation of due process that a person might be presumed to know laws that are not publicly available. I’m not aware of any cases finding that inability to access the law for want of money is a constitutional problem, but the situation analogizes fairly well to Harper v. Virginia, in which a poll tax that would exclude the indigent from voting was found to violate equal protection.

Regulatory codes that must be purchased at a high price will tend to cartelize trades by raising a barrier to entry against those who can’t pay for copies of the law. Private ownership of public law seems plainly inconsistent with due process, equal protection, and the rule of law. You’ll sense in the video that Malamud is no libertarian, but an enemy of an enemy of ordered liberty is a friend of liberty.

One of the most regrettable outcomes of government schooling is constant, wrenching conflict as diverse people are forced to fight over the uniform school system they all have to support. Sadly — and in complete opposition to the foundational American value of individual liberty — one of the few ways these conflicts can be resolved is by crushing groups with insufficient political power, keeping them from getting the education they want for their children.

Unfortunately, making it easier to do exactly that seems to have motivated at least some people in Kansas to support their state’s adoption of federally backed “Common Core” standards. Under the guise of removing politics from public schooling — meaning, crippling the ability of those who disagree with them to fight back — some supporters are lauding the standards especially if they are extended to science. Then, the state wouldn’t have to deal with the highly divisive question of how to teach human origins. The assumption, it seems, is that by adopting national standards evolution skeptics in Kansas would be overruled not just by evolution supporters in Kansas, but, de facto, supporters nationwide:

The movement toward national standards — the Kansas State Board of Education joined the program earlier this month — comes with plenty of advantages, said Rick Doll, superintendent of the Lawrence school district.

Among them is snuffing the likelihood of political flare-ups, such as the off-and-on debate over whether Kansas should de-emphasize the teaching of evolution in public schools.

“What we teach in school should not be dependent on the political leanings of a governing body,” Doll said. “With this, there’s less chance of that happening.”

Whether you are the most zealous creationist or the ardent Darwinist, this thinking should frighten you.

For one thing, having national standards will only push the fighting to the national level, threatening to tear apart the entire country with conflicts that could have been contained within state or district boundaries. Moreover, the fighting is likely to be even more intense, because with national standards there’s nowhere to go but out of the country if you lose. And that raises what should be the most alarming point for national-standards advocates: What happens if and when you are not in power? Then everyone will get stuck with not only what you dislike, but what, if you are right, might even be educationally or socially dangerous. But you’ll only have yourself to blame. After all, you’ll have built the nuke suddenly pointing at you.

P. J. O’Rourke, Cato’s H. L. Mencken Research Fellow, is touring the country to talk about his new book, Don’t Vote: It Just Encourages the Bastards. Today he has a commentary on NPR. And the day after the election, he’ll be discussing the book and no doubt the election results at a Cato Book Forum.

You can find more book signings and media appearances at www​.pjourke​.com.

Looking to election day and California’s vote on a marijuana legalization initiative, I have some comments on “the right to control your body” at Britannica Blog:

People have rights that governments may not violate. Thomas Jefferson defined them as the rights of life, liberty, and the pursuit of happiness. When I’m asked what libertarianism is, I often say that it is the idea that adult individuals have the right and the responsibility to make the important decisions about their own lives. More categorically, I would say that people have the right to live their lives in any way they choose so long as they don’t violate the equal rights of others. What right could be more basic, more inherent in human nature, than the right to choose what substances to put in one’s own body? Whether we’re talking about alcohol, tobacco, herbal cures, saturated fat, or marijuana, this is a decision that should be made by the individual, not the government. If government can tell us what we can put into our own bodies, what can it not tell us? What limits on government action are there?

It’s part of a symposium on Proposition 19 and marijuana.

When Jerry Brown touts his record on education on his campaign website, he starts by citing the two charter schools he founded, calling them “among the top-performing schools in Oakland.” They aren’t — not when measured by academic achievement, at any rate.

The chart below shows the percentage of students in Brown’s two charter schools who score at or above the “proficient” level on the California Standards Tests (averaged across all available grades and subjects). The results are broken out a few different ways to show that they are not particularly sensitive to demographics.

Far from being “among the top,” Jerry Brown’s schools are marginally lower-scoring than the abysmal Oakland Public Schools, and fantastically far below the city’s real top performers: the American Indian Public Charter Schools network (3 schools) and the Oakland Charter Academies (2 schools).

Another of Mr. Brown’s campaign website claims is more credible: “I have gained first-hand experience in how difficult it is to enable all students to be ready for college and careers.” Perhaps if Mr. Brown had taken the time to learn from and emulate the two charter school networks that are already achieving that goal in his own backyard, Californians would have greater confidence in his education policy acumen.