The decades long debate over net neutrality - the principle that all internet data must be treated equally and fairly online and no internet company should be allowed to censor or discriminate what we do or see in cyberspace - has reached an inflection point.
Last fall, Federal Communications Commission Chairman Pai successfully reversed the Obama regulatory overreach that exploited the net neutrality issue by using it as a stalking horse to do much more: Classify internet providers as "common carriers" and put the feds in charge of everything. The Pai reform rolled back Obama-era regulation, which ensures that a free enterprise culture of creative disruption and permissionless innovation will continue.
But Democrats in Congress are working feverishly to restore the Obama rules by abusing a device called the Congressional Review Act. And while the effort will likely fail, their gambit shows how determined the minority party is to put the federal government back in charge of regulating the internet.
The intent of the Congressional Review Act is to overturn regulations, not re-impose them. It was to give Congress a chance to give a thumbs up or thumbs down on new agency regulations. So using a CRA to restore oppressive federal internet regulation is an abuse of the CRA process. But it's even worse than that.
The Obama federal regulatory takeover of the internet focused intense federal regulations on internet service providers, but oddly did not apply to the big "edge" companies and social media platforms. The assumption seemed to be that only ISPs could threaten the "free and open internet," and it probably didn't hurt that huge Silicon Valley political donations poured into the Obama campaign.
But recent experience suggests that it is non-ISPs like Twitter and Facebook that are the real threat to openness. These companies have far more opportunity to collect personal information and are much more prone to engaging in viewpoint discrimination by censoring content, canceling accounts and otherwise using their algorithims to reflect their own biases.
These companies have innovated their way to tremendous market power, and we shouldn't deny them their success. But neither should we give them a free pass. Given what we're learning about the kind of radical politics and social justice culture that exists in these companies, how likely are they to be neutral arbiters of blog entries, social media posts, user generated video and other kinds of content?
Right now, all companies in the internet ecosystem are under reasonably equal regulatory obligations at both the FCC and the Federal Trade Commission. But a net neutrality CRA would restore the Obama administration's free pass to the biggest tech companies most likely to abuse their positions.And by returning to a rear-view-mirror mindset that reaches back to a Depression-era land-line "common carrier" approach, the CRA would also undermine the internet's innovation culture and put thousands of job at risk by drying up new capital and network improvement and expansion.
Ultimately, the CRA won't likely pass a Republican lead Congress and be implemented by a presidential signature. It's more about grandstanding, building email lists and click bait blogs. Ultimately, it's about keeping activists ginned up about net neutrality so everyone can keep raising money.
If Democrats are serious about protecting consumers from possible abuses that would interfere with their internet experience, they should work on comprehensive legislation to do so - covering both internet providers and the larger, more profitable tech companies. Not the divisive, half-measure CRA.
After all, policy should be set by the elected representatives of the people, not by unelected bureaucrats.
Republicans also support a free and open internet. That's why Republicans have an opportunity to flip the script on Democrats and show voters once and for all who is serious about protecting the internet.
Republicans should drop a simple and elegant bill, one that bars all internet players from interfering with or censoring the online experience of all Americans. Then let Democrats explain why they don't support such a simple approach.
Or, even better, let Democrats join the GOP in finally solving the net neutrality debate with a simple, clear piece of legislation. After all, that's how it's supposed to be done, anyway.