What do you do when the FCC doesn’t care about you?

During last week’s day of action for net neutrality, I called, petitioned, and emailed my representatives. Then I switched my profile picture to a ninja cat on a unicorn with lasers for eyes.

The picture above is terribly cliched. But that could be a good thing, in context. It could even be meaningful.

No corporate interests drove the cultural triumph of pixelated rainbows or feline ronin. But these memes are rooted in our psyches to an almost oppressive degree nonetheless. That we can look at the above image and think “well, duh, that’s the internet for you, gee whillikers” and yawn to ourselves or roll our eyes says something powerful.

That something is the glorious and surprising online hegemony of participatory culture.

Participatory culture is Professor Henry Jenkins’ term of art for grassroots communities that grow, share, and create via technology. Jenkins views participatory culture as primarily something that young people do; for the purposes of this blog, it is age-unrestricted.

The web may be the ur-example of modern participatory culture. The internet is strange because strange people banded together and worked hard to make it strange. Not all of these weirdos have corporate money to throw around. Not all of them have access to avenues for organizing or communicating offline. But they know how to use the internet. And they are worth protecting.

Internet-mediated participatory culture impacts a tremendous and growing swath of modernity. In recent years, the power of the internet to unify and concentrate cultural movements has borne sometimes delightful, sometimes alarming fruit in the form of participatory politics. Participatory politics is also Henry Jenkins’ coinage, and it’s just what it sounds like: using technology on a grassroots level to connect with likeminded individuals and effect political change.

You encountered participatory politics during the 2016 presidential election. You have been living with the fallout ever since.

Participatory politics is like any other tool or process: how it is used depends on the intent of those who use it. Participatory politics has fueled, among other things, Black Lives Matter, Occupy Wall Street, the MP expense account scandal, Gamergate and the alt-right, Bernie bros, ISIS, and the Arab Spring.

Last week, Battle for the Net contributors including the EFF used participatory politics to defend the FCC’s current policy on net neutrality. We did a pretty good job, if you judge such things by engagement numbers and records broken. We sent more than five million emails to Congress and left more than nine million comments to the FCC. On July 12, we actually broke the record for most comments left for the FCC in a single day. The previous record was held by–wait for it–Battle for the Net as well!

So clearly we did a good job, right? I mean, apparently we did an awesome job…so the FCC is going to respond to our concerns any day now, right?

Unfortunately, the current chairman of the FCC appears to be just as committed to open dialogue, bipartisan politics, and responsivity to the needs of the populace as the man who appointed him. Under Ajit Pai’s leadership, the FCC is ignoring not just the record-breaking millions of comments, but also poll results showing strong bipartisan support for current net neutrality regulations among U.S. citizens.

Sounds pretty crazy, right? But it gets crazier.

Because the FCC is ignoring the whole zombie commenter problem. Because zombie commenters are, sigh, a thing now.

A few months ago, a third party (probably working for an ISP) used names from old voter registration sheets to leave fraudulent comments with the FCC. How many fake comments? About 500,000.

Check to see if your name was used here

It gets crazier. Some of these fake comments were signed by dead people. This seems like cause for consternation, right? Especially on the part of the regulatory agency. So the FCC developed a comment screening process and pledged to overhaul problems in its comment collection system. Just kidding!

The FCC publicly declared that the agency would make no attempt to discern between real and fake comments unless the signatories were obviously fake names such as King Kong or Napoleon Bonaparte, a position that categorically excluded the real names of real dead people who didn’t sign up for any of this, because they’re dead. Really.

Now, given the last six months and just, uh, everything, let’s make something clear. Ajit Pai is not suffering from dementia. Mr. Pai is not just an old decrepit husk of a man tottering about the Court of Appeals in a bathrobe with Fox and Friends on blast. His agency’s statements are not the strenuous but doomed attempts of staffers to make sense of Ajit Pai’s word salad. No one at the FCC is sundowning, okay? Pai and pals are more than mentally competent to perform in their appointed positions. They know what they’re doing here. That means they’re doing it on purpose.

So what do we do when our leaders won’t respond to us? Do we just give up? Is there even a point to protest under these conditions?

I think there is. In fact, I think there are several.

Through continuing to advocate for our beliefs and our needs, we let other politicians know the constituent demand for net neutrality. This lays a solid groundwork for policy change under future administrations. We also find our own voices in articulating our thoughts to ourselves and others, which is key for sparking genuine innovations and solutions. And we find our kin, the people with whom we can form deep philosophical communion. We are primates, after all. We need community.

Keep fighting. Keep talking. Keep making noise. When our leaders abandon us, all we have are each other.

You can start here .

1 thought on “What do you do when the FCC doesn’t care about you?”

  1. A right to nonsurveillance?
    Public outrage over broad surveillance of all of us by the NSA and other government agencies raises the constitutional issue of just what rights are involved.

    The Fourth Amendment states:
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
    For this discussion the key word is “their”. In other words, personal property bounding a zone within which one has a reasonable expectation of privacy. That is not necessarily synonymous with a property boundary. We don’t have an expectation of privacy on that part of real property that can be easily seen from outside it. We have it for sealed postal mail but not for postcards, although strictly speaking, once posted postal mail belongs to the recipient, not to the sender, except that the sender may retain a copyright to the creative contents of it. That is why a warrant is supposed to be required to open sealed postal mail, although it is less clear that one is required to peer through the envelope with something like a scanner or sniffer, and these are now used regularly to detect dangerous or illegal contents.

    New technology

    Technology has created new situations that challenge what is included within “their”. The first main one was telephone conversations, and the desire of government agents to “tap” them. The course of jurisprudence has been to treat them as private, requiring a warrant to tap, unlike a conversation conducted by air in an open public space. The telephone circuit was deemed to create a kind of “wrapper” like a postal envelope, creating a zone in which privacy is expected.

    This has led to further extension of zones of privacy in the form of state anti-eavesdropping or anti-recording statutes forbidding audio and/or video recording of phone or open conversations, either without the consent of all parties, or at least of the party making the recording being disclosed to the others. Such statutes have been invoked to prosecute citizens recording police operations, but courts have held that police and other public officials do not have an expectation of privacy while they are doing their public jobs.

    We also get the issue of the privacy of information provided someone for one purpose being used for other purposes to which the person providing the information did not consent. This is especially salient with medical information.

    So we get to the question, does anyone have a reasonable expectation of privacy to the kind of information the NSA and other government agencies and contractors have been collecting and storing? Maybe not.

    The question comes down to whether one has a property right in the information, which includes not only records of who phoned, texted, or emailed whom and when, but also the contents of the communications. The government is making the argument that the contents are only being read by machines and flagged for suspicious content, and that they get warrants for a human being to read or listen to the records, but does that satisfy the Fourth Amendment? Civil libertarians argue it does not, that gathering and keeping the records is itself a search, and violates the terms of service of the carrier of the communications with the users, and thus is without consent. A machine reading the communications is also a search. The Fourth Amendment makes no requirement that the search has to be done only by a human being.

    It should be noted that congress passed a statute making it a federal felony for a private party to violate the terms of service of a computer or electronic communications service without controlled access. The statute is unconstitutional with respect to private persons, but could arguably be applied to remove government employees or contractors from their positions. However, it conveniently exempts the government from penalties, thus allowing it to do what would be a statutory crime if done by a private party. But it does create an arguable property right in the information requiring consent to uses to which the provider of the information did not consent.

    On the other hand, if consent is not sought or given, has the user put his information into the public domain, or granted it to someone else? Or is it the equivalent of postcards? We may need to establish that people need to encrypt their communications from end to end to have an expectation of privacy for their contents, and retain a property right in their passwords or passcodes.

    Broader surveillance

    In George Orwell’s 1984 the Party required 2-way video surveillance telescreens in every room of every house of the educated class. It was claimed they were not in every room of the lower classes, the plebs, and that one could escape surveillance outdoors, especially in woods. Today we have cellphones we carry with us that can be used as listening devices and to track our movements, but we also have surveillance cameras, drones, and satellites covering the outdoors. Big Brother is now watching and listening to us, almost all of us, everywhere, almost all the time, all without a warrant, with no effective limit on what information can be gathered, stored, or analyzed, or how it can be used or misused. With technology that can falsify not only audio recordings, but video recordings, in real time, to potentially incriminate anyone for anything, it is no wonder that even senior government officials are alarmed, because they are not exempt from the coverage.

    The only thing missing is us being able to watch Big Brother. We have some of that within the private sector and state and local government, but the federal government is asserting state secrets and national security, and threatening to prosecute anyone who reveals things that have been common knowledge for decades.

    What expectation of privacy do we have for all the activity the government has been surveilling? We don’t have particular property rights in most of it, so it would seem to be beyond the protection of the Fourth Amendment. What we need is a new, broader right.

    A right to nonsurveillance

    One won’t find this one spelled out in the Bill of Rights, unless it is in the Ninth Amendment. It is doubtful that the Framers would have recognized it. It is argued, not implausibly, to be a necessary and proper power to gather, store, and analyze information needed to carry out one’s official duties. But it can also be argued, plausibly, that the kind of sweeping surveillance being conducted by the federal government, and other governments, goes far beyond what is necessary and proper to carry their other powers into execution.

    Asking the courts to draw the line will probably be necessary along the way, but it is probably expecting too much of the courts to engage in line-drawing that is more properly the subject for legislation.

    I have proposed the following amendment:
    The people shall be secure against general and pervasive surveillance in private and public places, whether done by government or private actors, that has a chilling effect on their private and civic activities, without specific public court orders pursuant to acts of Congress for national security.

    The saga has only just begun.

    See Also:
    Is NSA surveillance unconstitutional? Jon Roland at the Austin Constitution Meetup June 18, 2013, discusses the constitutional issues with recently re-revealed activity of the NSA and other government agencies.
    “Bush Lets U.S. Spy on Callers Without Courts”, by James Risen and Eric Lichtblau, New York Times, December 16, 2005.
    The Constitution in the National Surveillance State, by Jack M. Balkin, Minnesota Law Review, Jan, 2010, 93:1.
    Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks, Hearing Before The House Of Representatives, Committee On The Judiciary, December 16, 2010.
    The Digital Surveillance State: Vast, Secret, and Dangerous, by Glenn Greenwald, Cato Unbound.

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