August 2017

[Commentary] The "era of objectivity", grounded in the once-sacred ideal of Journalistic Objectivity, may be over. But before we decry the end of an era, we should actually celebrate this moment—and the accompanying crucible of the industry’s restructuring—as an opportunity for democracy. Journalism, and those who love it, can now turn the page to a new ideal: legitimacy.

If you remove the self-delusion of Objectivity, you still have a legitimate product, appealing to a discernible audience. Anything from a blog to an international news network has to earn its legitimacy by practice, not through inheritance or the money to buy a local TV station. Legitimacy is an ideal separate from the simple crucible of market demand. Market success won’t be a shield to help carry you through unpopular reporting, or even a mistake, but legitimacy will. Legitimacy also fosters credibility, considered the coin of the realm by journalists. While credibility can be episodic (a single report of something previously unknown) or personal (a doctor reporting on medical news; a well-connected political reporter), legitimacy is more institutional and also typically assigned to the management or ownership of a news organization.

[Commentary] Democratic governments concerned about new digital threats need to find better algorithms to defend democratic values in the global digital ecosystem. Democracy has always been hard. It requires an exquisite balance between freedom, security and democratic accountability. This is the profound challenge that confronts the world’s liberal democracies as they grapple with foreign disinformation operations, as well as home-grown hate speech, extremism, and fake news. Fear and conceptual confusion do not justify walking away from liberal values, which are a source of security and stability in democratic society. Private sector and government actors must design algorithms for democracy that simultaneously optimize for freedom, security, and democratic accountability in our digital world.

[Eileen Donahoe is Executive Director of the Global Digital Policy Incubator at Stanford University, and former U.S. ambassador to the UN Human Rights Council]

[Commentary] Amid the avalanche of Title II comments were comments filed by eleven Democratic members of Congress—several of whom sit on the House Commerce Committee—who claim their background working on telecommunication issues over the years gives them the “unique ability to provide input on the actual meaning and intent” of both the Communications Act and the Telecommunications Act of 1996. A simple review of the plain text of these statutes and the substantial case law interpreting them, however, appear to raise doubts about that claim.

Let’s start with the Congressmen’s central argument that the FCC “fundamentally and profoundly misstates the law” because the FCC’s notice of proposed rulemmaking (NPRM) “takes an impermissibly narrow view” of the Communications Act’s “public interest” standard. “Any action the FCC takes based on the analysis contained in the proposal,” they claim, “will be legally flawed and contrary to the law.” The problem with this argument is that regardless of how one views the “public interest” standard, application of this standard is irrelevant to the fundamental legal question raised in the NPRM. The Congressmen next argue that by reversing reclassification, the FCC “would remove the statutory privacy rules that can protect broadband users before they are harmed.” Again, this argument is legally inaccurate. The Democrat lawmakers’ third major legal argument is that the FCC is improperly focusing on whether the 2015 Open Internet Order depressed investment in broadband infrastructure. Every serious attempt to analyze the data indicates that the prospect of Title II regulation has reduced investment in broadband infrastructure, and by a significant amount.

At some point, we all hope that Congress will step up and pass some sort of Open Internet legislation to put this debate to bed. If that effort is to be successful, then it is incumbent on Members of Congress to bring greater focus, insight and analytical rigor than they demonstrated in this particular filing.

[Lawrence Spiwak is the President of the Phoenix Center for Advanced Legal & Economic Public Policy Studies]