Right Reason

Net Neutrality Doesn't Hold Up to Scrutiny

 

The American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being and improves the performance of the economy without imposing unacceptable or unreasonable costs on society; regulatory policies that recognize that the private sector and private markets are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal governments; and regulations that are effective, consistent, sensible, and understandable. We do not have such a regulatory system today. 

-Executive Order 12866

 

 

On February 4^th, Tom Wheeler, the chairman of the Federal Communications Commission, published his online plan for introducing net neutrality to the nation. Whether the FCC is going to adopt net neutrality, the principle that packets of data be treated equally on the internet, is one of the decisions that will come to define the rules that governs the operation of the internet in America. 

Such major regulatory decisions must be made with a sound regulatory philosophy in mind so as to minimize the costs of regulations. Mr. Wheeler’s proposals do not suffice such a sound philosophy because his proposed rules fail to specify a substantial reason harming the public interest, be it a market-failure or another systemic disorder, that net neutrality can solve. Without such specification, the proposed rules cannot be considered good regulation because they fail to explain why they are even necessary.

 

Regulation can only be as effective as its underlying principles. As long as regulation isn’t guided by underlying principles, then there is no impartial mechanism in place to prevent an excessive expansion of the regulatory state harmful to the public interest. Proper regulation needs what Adam Smith called “the science of the legislator” in The Wealth of Nations where “deliberations ought to be governed by general principles which are always the same…” (WN: IV.ii.39) Today, enthusiasm for net neutrality needs to be tempered by an appreciation of that science. 

When proposing a regulation, the presumption should always be with liberty. Regulators shouldn’t have an open license to regulate the markets towards whatever end they find desirable; rather, they should always have to make the case for why people left to their own devices cannot solve the systemic disorders they’ve identified. Executive Order 12866 provides a standard for a science of the regulatory for modern regulators:  

Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling public need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well-being of the American people. 

By requiring regulators to specify the market-failure that they are supposed to address, Executive Order 12866 constitutes a presumption of liberty and provides a manifestation of the science of the legislator today. 

 

In his proposal, Mr. Wheeler fails to provide a robust explanation for why the free markets have already have to provide an internet as a medium for “innovation and free expression.” The FCC’s proposed rules therefore fail the very basic test of a good regulation in that it fails specify a market-failure contributing to the failure of broadband providers to provide such a medium. Mr. Wheeler argues that net neutrality “fosters innovation and competition by ensuring that new products and services developed by entrepreneurs aren’t blocked or throttled by Internet service providers putting their own profits above the public interest.” The argument doesn’t hold up to scrutiny. 

In a properly working market, each person’s self-interest will be transformed into public benefit. To make their case, regulators need to specific the mechanisms that are preventing that from happening. It isn’t enough to point out that people are gnats. Instead, Mr. Wheeler has to point out the exact mechanisms that contribute to the market-failure his proposed rules are supposed to be addressing. 

The Chairman employs a cliché, not a substantial argument, to justify the need for net neutrality. With that cliché, the FCC could advance the regulation of almost any service it wanted. Executive Order 12866’s regulatory philosophy stands against such an excessive invasion of citizens’ lives that would only serve to harm the public interest. 

Regulators should always expect producers to rank their own profits above the public interest. That people are mean and self-centered isn’t carte blanch for regulation.There is a tangible cost to any regulation that needs to be weighed against its prospective benefits. The FCC’s regulation of broadband internet, in particular, will have an impact on entrepreneur’s willingness to enter the market and to bring innovations to the market. 

 

The self-interest of Comcast, Time Warner Cable, and other broadband providers has already led to a blossoming to the internet across the United States. The free markets will never be able to silence their critics. Regulators will always be claiming that those they regulate don’t value the public interest. Yet the amount of Americans paying each year for access to those services are a concrete illustration to the fact that they improve people’s lives. If that isn’t contributing to the public interest, then, really, what is?  

 Any disincentive to entrepreneurship and innovation is a threat to the markets that need to be taken seriously. The free markets are a persistently creative ecosystem. Each year, an uncountable number of entrepreneurs bring new ideas to the markets that improve the well-being of people the world over. That creativity is threatened whenever regulators apply their craft. 

Any regulation on the books will increase the red tape an entrepreneur needs to navigate before an innovation can reach the markets, which thereby create disincentives for entrepreneurs to innovation. The presumption of liberty is, therefore, the best approach regulators can take to ensure their nation’s prosperity. That way, the markets can be protected from the unnecessary expansion of the regulatory state while needed regulation can be implemented once regulators successfully satisfy the presumption of liberty’s robust standards. 

 

All regulations should be judged according to the standards of a good regulatory philosophy. A basic principle of such a philosophy is that regulators should specific the problem that they are trying to solve. The best manifestation of the principle that we have in the contemporary regulatory régime Executive Order 12866. Chairman Wheeler’s argument for net neutrality, that broadband providers are motivated more by greed than by public spirit, doesn’t survive proper scrutiny and so his arguments fail to surmount the presumption of liberty. 

Behind the Chairman’s talk of a free and open internet, there is no economic problem to be solved, no market failure identified that requires regulation. At the end of the day, net neutrality is an unnecessary extension of the regulatory state into yet another area of the American people’s lives. 

 

Liberty, Responsibility, and Heroin

 

 

Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites, — in proportion as their love to justice is above their rapacity, — in proportion as their soundness and sobriety of understanding is above their vanity and presumption, — in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.

-Edmund Burke, Letter to a Member of the National Assembly

  

Following Philip Seymour Hoffman’s death, Vice published an article with a title that well described its purpose. In “Legalize Heroin!”, Lucy Steigerwald gave an argument for why the prohibition of even a drug like heroin, surely on the baddest of the bad list of recreational pharmaceuticals, should be ended:

 

In the aftermath of Hoffman’s death, Jeff Deeney, a former drug addict who now works as a social worker, wrote a piece in the Atlantic that calls for treating heroin like a health issue, not a criminal act. All the nasty effects of this drug—and all the reasons not to do it—are magnified by the threat of prison, the stigma that leads to shame and secrecy, and the increased risk of HIV and infection that comes with sharing needles. According to Deeney, if Hoffman had access to a space where it was legal to shoot heroin and where doctors could supervise users, he might still be alive. Why doesn’t the US have any such sites, though Vancouver, Canada, does? Why the hell isn’t Naloxone, the much-touted miracle drug that stops opioid overdoses, not available over the counter? Why isn’t it passed out in urban health clinics like candy? Out of the 1.5 million people arrested for drug crimes in 2012, 82 percent were for possession, and 16.5 percent of those were for cocaine, heroin, or associated drugs. Did those arrests do anyone any good?

One reason legalizing pot is more popular than legalizing heroin is that far more people smoke than shoot. At least 100 million people in the US have done marijuana, while the number of frequent heroin users has stayed under half a million for decades. But use (which isn’t necessarily addiction) has nearly doubled since 2007—one survey calculated that 669,000 Americans had done heroin in 2012, compared with 373,000 in 2007. (This may be because some former pill addicts move on to heroin, as Hoffman did).

That’s what prohibition (which includes policies that levy draconian punishments for pill possession) does—it causes rippling effects in human behavior. It does not stop drug use, though it may change a user’s drug of choice. Regardless, it’s time to give up trying to scare addicts into getting healthy and do what Portugal did in 2001 and decriminalize all drugs. Laws can’t stop people from using drugs, they can only make drug use a more harrowing experience for addicts who have to deal with jail time and police harassment and products that, thanks to a lack of oversight, may contain dangerous chemicals. 

This country needs to grow up and realize that the legal system is a hammer, and drug users and addicts are not nails. End the drug war. End it all. 

Yes, legalize heroin! Liberty, though, must be coupled with responsibility, and that means those who use must accept the consequences of their use. 

 

In reaction to Hoffman’s death, The Economist’s M.S. has argued against such a laissez-faire, laissez-passer approach to drug policy. Instead, he argued that the damage done by addiction to drugs is a cause which should come to the attention of each nation, and that public policy should do more to prevent deaths from drug abuse in “I Guess I Just Don’t know”: 

We don't know how to stop great artists from destroying themselves in one way or another. But we do have a good idea of how to stop more people from destroying themselves specifically with heroin injection, which has a higher fatality rate than most controlled substances. As with most drug problems, the solutions involve decriminalisation and universal access to treatment programmes, including alternative blocking drugs like methadone and buprenorphine. In the case of heroin, there is also another proven way to reduce harm: setting up safe injection rooms monitored by health-care staff, and—for registered addicts who cannot or will not comply with treatment regimes—providing heroin itself for free.

Switzerland and the Netherlands pioneered this "Heroin Assisted Treatment" (HAT) approach in the 1990s, and both countries adopted it as national policy in the 2000s. Heroin use has steadily declined since; by the 2000s the Dutch incidence of new heroin users had fallen to essentially zero, and the aging population of addicts from the 1970s and '80s continues to shrink. The average age of Dutch heroin users rose from 34 in 1997 to 45 in 2009.

Decriminalisation of marijuana use has also played a role in shrinking Dutch heroin use, since it separates the use of cannabis from the use of harder, more restricted drugs. HAT trials have since been run in Spain, Britain, Germany and Canada. The evidence consistently shows that HAT drastically reduces heroin-related crime, since addicts don't need to steal to get money for their fix, and it slashes heroin-related deaths and HIV infection, since addicts are shooting up under medical supervision.

…

More interestingly, HAT is also correlated with lower overall heroin use. This is in part because free government heroin tends to drive out private-sector providers. Most addicts will end up shooting up in safe rooms monitored by public-health staff, where they will be encouraged to enroll in a treatment programme or, if they fail or refuse treatment, simply receive free heroin. This gradually erodes the market for dealing heroin for profit; as they say in the tech world, you can't compete with free. The result is what you see in the Netherlands: the slow disappearance of heroin use. 

 

The problem with Heroin Assisted Treatment is that by participating in such programs, the government becomes more than an impartial referee to society - there to ensure that the formal rules of the game are obeyed - becoming an active participant which influences the society towards certain ends. There are certain ends towards which the government must become a participant in society to achieve, but there should always be a strong presumption - the presumption of liberty - that the government should just be an impartial referee. In many cases, concern for the people’s welfare may be a good reason surpassing the presumption of liberty, but in the case of the heroin, the vast majority of those who have suffered on account of it are those whose voluntary decisions have lead to that situation. Since they have lead themselves to their own doom, they must be left free to enjoy the fruits of their imprudence. 

So, while governments should certainly legalize heroin, they should not offer specific care from those who have abused it. If people are to be free to do drugs, then they must be trusted as free-willed adults who can moderate their appetites. As Theodore Dalrymple has incessantly argued, addiction is not a disease. Neither it is infectious, nor have willed attempts to free oneself from actual diseases ever worked, yet such attempts work all the time for addiction.  so the costs of becoming addicted to heroin are well internalized to the user. 

We would certainly find it absurd to provide anything close to the Dutch and Swiss level of welfare services to alcoholics, and rightly so. Public services simply should not indulge such forms of human weaknesses, which are not diseases, but poor decisions which inflict the vast majority of their harm upon those who made the decisions, and those who associate with them. 

 

Robust liberty must be benefits with costs. Incentives matter. The system of natural liberty is so successful because people will tend to pursue that which is conducive to their prosperity, so when the government interferes with the costs associated with any activity they skew the incentives associated with that activity. In addition, by saving people from the costs of their actions, the government is treating them as people who do not deserve the full consequences of their actions, and so is creating a situation for the government to act as superiors to people, knowing their own good better than they do, within society 

Just as someone is free to use heroin, so he must be free to become a slave to it just as people are free to watch pornography and to ruin their marriages because of it. Liberty can only last in an environment of responsibility. Exceptions can be made to ensure a basic standard of living, but those exceptions should be made about general standards of living rather than the specific bundle of consumption goods someone decides to enjoy. The provision of care to addicts of specific drugs is not a program about the general standard of living people enjoy, but a direct effort to solve a specific problem. A specific problem, it should be added, which is more than predictable for people thinking about starting to use heroin.

So, while the government should not attempt to block people from obtaining heroin, anyone who would use it should do so with the knowledge that they stand at risk of traveling down a path of self-destruction.

Liberty, and Prudence in Policy: The Case of Marijuana

 

 

In a post responding to the severe criticism David Brooks has received on his own unfortunate column arguing against the legalization of marijuana, T.N., a blogger at The Economist’s “Democracy in America” blog, comes to his defense in “Marijuana Legalisation: Sort of In Defense of David Brooks.” There he argues that while Brooks’ point certainly could have been better argued, that Brooks certainly had a point which is often neglected in the tide of increasing support for legalization.  

The most noteworthy part about the blog post, though, does not have to do with the topic of cannabis, or David Brooks. It is that T.N.’s post is paradigmatic of a certain mentality about policy. That mentality is the belief that policy is about a matter of utilitarian calculus. A good piece of legislation is therefore one that encourages the general welfare while a bad piece of legislation, vice versa, is one that diminishes the general welfare. T.N. advocates for such an understanding when in writing:

The point is that however the cost/benefit formula is constructed, there are factors on both sides of the equation. Lives have been ruined by marijuana as well as by its prohibition. It may be facile to lament the legalisation of the drug while ignoring the damage wrought by prohibition, but it is equally silly to assume that there will be no losers from the unprecedented experiments in Colorado and Washington.

 

According to this view, a politician’s craft is a matter of prudence - defined by Aristotle as being “about human concerns, about things open to deliberation” (Nicomachean Ethics 1141b). When legalizing marijuana, then, politicians have to weigh the benefits of its legalization compared to those of its prohibition, and if those benefits outweigh the costs, then the legislation should be passed.

Completely lacking from T.N.’s  account of legislation, though, is any voice for the presumption of liberty. The idea that the prudential decision ought to, by principle, be left to the person who shall serve to reap the decision’s fruit is not be to found there. Nowhere in T.N.’s appraisal of legalization does the columnist seem to consider the idea that people ought to be free to destroy themselves. Instead, politicians stand above their citizens, to ensure their happiness. When the columnist addresses the choices of individuals, it is only with respect to either minimizing or maximizing their utility: “Moreover, lots of people smoke marijuana because they like it; the drug therefore has a ‘utility function’ that ought to be factored in to any cost/benefit analysis.”  

That is a dim view of human free will. A cost/benefit analysis from on high simply looking at people as utility maximizers fails to capture the full tapestry of human motivations across society, and it fails to consider the multiplicity of motivations for why people would make their own prudential choices. The presumption of liberty, though, acknowledges that, and in acknowledging it, respects human beings as free to their own prudence lest a grave concern overwhelm that presumption.

 

The presumption of liberty alone, not the politician’s prudence, should be the reason for the legalization of cannabis. It is not that marijuana does no more harm than alcohol, or that marijuana might even have positive effects across societies, but that people should be given the respect that they deserve, and that no one should claim to make the prudential decision to partake in drugs for them. There is simply no scope for a superior in politics to interfere with that decision, and so there is no reason why politicians need to deliberate about it. It simply should not be their decision to make.  

Humanity is, at heart, a species with a deep impulse towards self-destruction, and if someone desires it, he will be able to achieve it through one means or another. Talk about the political prudence of legalizing marijuana does nothing to address that.  Prudence is a matter of proper deliberation, but there is no strong reason for why the choice of whether to smoke marijuana should not be made by politicians, especially when it comes to the well being of individuals.  

 

The fact shall always remain that if people are to be free to choose virtue, they must be free to choose vice. Whether it is the case of the problem of evil or the legalization of drugs, people are free agents whom need to be respected as free agents. Ensuring the integrity of  what Adam Smith called “the obvious and simple system of natural liberty” which liberals should be the primary concern of politicians, matters of prudential legislation only following after that. As far as the legalization of marijuana, it would be one small way forward towards ensuring the existence of that system of liberty. It isn’t for no reason that The Economist named Uruguay its country of 2013 for enacting such an “obviously sensible” change.