Effective July 1st, Qwest and Comcast subscribers will have to pay an additional fee to stream Netflix movies and they will no longer be able to make calls with Skype. Actually, we’re making that up, but that’s what could happen at any moment under existing law. Until now, the Internet has been a largely open and democratic platform which enriches our culture and community but there’s no guarantee that it will remain so.

Today, the status quo of how we access the Internet is known as network neutrality but there is no law preventing Qwest and Comcast from requiring large publishers and service providers such as NetFlix and the New York Times to pay extra for current delivery speeds or to block services like Skype and YouTube altogether. In fact, Comcast has manipulated traffic before. Worse yet, readers of small sites, such as the local blog MyBallard, could find their access deliberately slowed. Essentially, Qwest and Comcast can act as the virtual mob of our Internet neighborhood. Large companies that can afford extra fees will continue to enjoy fast content delivery while small publishers who can’t pay will have performance degraded.

In January, Senators Cantwell and Franken introduced a Congressional bill to make net neutrality the law of the land, but it is highly unlikely to ever pass without being substantially watered down in favor of large telecommunications companies.

Making Net Neutrality Law

Envision Seattle is offering a model net neutrality ordinance for Seattle (and communities around the U.S.) that want tools to block corporate manipulation of a free and open Internet. The ordinance (pdf) can be used in any community to effectively require broadband providers to maintain status quo net neutrality. The Community Environmental Legal Defense Fund (CELDF) helped author the ordinance. CELDF has worked with hundreds of communities around the country drafting ordinances that block corporate harms through law, rather than relying on regulatory systems, compromised by design, that allow ongoing unmitigated environmental harm.

Recently, CELDF helped Pittsburgh’s City Council unanimously pass an ordinance banning fracking, a harmful form of natural gas drilling. Similarly, we plan to work with the Seattle City Council to pass our Net Neutrality ordinance.

Yesterday, Seattle-based technology columnist Glenn Fleishman commented on the ordinance on the culture blog BoingBoing: “No chance of working in the US. The FCC has ultimate authority over information services, and the courts have consistently ruled such when non-federal governments have attempted to take control…the only hope is federal legislation to set national policy.

Precedent is not the issue. The issue is how important free and open Internet acess is to our community and who gets to make the rules for broadband rights in Seattle. Should Comcast be able to lobby with unlimited dollars in D.C. to define how Seattleites access the Internet or should residents acting through our locally elected representatives set the ground rules for companies wishing to profit off the lucrative right of ways of the physical cables under our shared streets that connect our homes to the Internet?

Perhaps Fleishman would have told anti-segregationists not to bother with marches or lawsuits until a federal civil rights law could be passed. But, laws like the Civil Rights Act are often enacted in response to public action. Apologies in advance for picking on Fleishman (he’s a smart guy), but if we historically followed his point of view, we might still have slavery and women wouldn’t have the right to vote.

FCC decisions (and congressional ones, as the authority for the regulatory activities of the FCC) actually violate certain rights that we hold as people, and the right to govern our own communities as an element of the right to community and local self-government. If we have a “right to internet access” or a “right to communicate” via these pathways, there are certain actions that can be taken by government which infringe on those rights. In our view, it’s up to us to create these rights frameworks, and then enforce them at higher levels.

The Roberts Supreme Court is rapidly transfering power from individuals to corporations. The Citizens United decision is one major example but two more examples came this week; the Court made it harder for citizens to file class action suits and it ruled that corporate pharmaceutical rights outweigh patient privacy. The only kind of effective social movements fight to overturn unjust law and court precedents, legislating new rights in their place. Often, these actions begin with the kind of local action Fleishman dismisses.

Investing in Effective Activism

As Court decisions tend to lag cultural values by as much as fifty years, it’s unwise to rely on them to legitimize our values and protect our communities. It’s the Court’s responsibility to protect and enshrine rights of individuals and when it routinely takes the role of elevating the rights of corporations, it’s citizens who must take action and shine a spotlight on the Court’s malfeasance.

Our local net neutrality ordinance is one piece of a strategy pursued by CELDF-affiliated groups. It’s about giving up hope that Congress is going to do the right thing, or State legislatures are going to do the right thing; and beginning to craft a structure of “rights” at the municipal level that challenges the hegemony exercised by those other levels of government; and then using the combined force of that municipal strength to push upwards against those higher levels of government to get the change that we want and need.

This organizing is about turning away from traditional activism (which is mired in letter writing campaigns and lowest common denominator federal and state legislation) and dipping our hands into a new activism in which the grassroots forces themselves begin to craft and model rights-based laws which then stitch together to change state constitutions, and eventually, to change the framework of the federal constitution itself. It’s a realization that the only way substantive change is going to happen – especially that change that runs counter to the interests of a relatively small handful of corporations – is a revolt from the bottom, from the municipal level.

It’s promising and hopeful work involving people who have given up on higher levels of government doing what’s needed; who are refocusing themselves on change that matters at the local level.

How the Net Neutrality Ordinance Works

The teeth of our Net Neutrality ordinance is in section 4c and d which strip corporations (that violate net neutrality) of “rights” that have been awarded to them over the past 150 years through Supreme Court decisions; these include the rights of personhood and the protections of the commerce and contracts clauses.

Corporate rights aren’t written anywhere in the Constitution. In fact, the word corporation does not appear in the Constitution. But, corporations have successfully leveraged these “judge-made rights” to wield power against communities often with the support of state and federal attorneys. These are the same rights Comcast and Qwest would try to use to have our ordinance overturned in Court. Our ordinance contains municipal laws that frontally challenge each of these powers, which we view as illegitimate.

Rather than seed power to the FCC or Congress, whose legitimacy has been increasingly compromised by corporate lobbying and court precedents such as Citizens United, Seattle will legislate a free and open Internet through our democratically elected council members.

In a Democracy, Who Decides?

CELDF’s ordinances are effective because they appropriately frame issues around the question of who gets to decide law in a democracy. Should communities have the right to run democratically or should corporate rights backed by increasingly compromised state and federal governments be allowed to run roughshod over our wishes?

It all comes down to what your “theory of change” looks like – whether it’s mired in traditional activism (which from an environmental perspective, has been a disaster – things are worse now than forty years ago, for example), or whether change happens like the abolitionists and suffragists knew that it did – from grassroots activism that refuses to follow existing law, and which creates a new framework of law which eventually is driven up the state and federal ladders. It’s all about whether we can get what we want and need from the system as presently constituted.

Beyond Net Neutrality, what would it look like if Seattle adopted a local bill of rights which offered a series of provisions around the environment, education, transportation and public health? This is the question that Envision Seattle was organized to ask. Our work is all about activism that dismantles that fundamental structure which is in place which stops us from moving towards the world that we want and need.

Posted by Jeff Reifman

Jeff is a technology consultant based in the Pacific Northwest.

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