Instead of waiting for Congress to pass a bill to enforce Net Neutrality, net activists should take a cue from Pittsburgh, whose city council recently passed groundbreaking legislation banning fracking (an environmentally polluting form of natural gas drilling). While fracking and Net Neutrality have little in common, Pittsburgh's ordinance uses powerful legal concepts that may be useful for preserving Internet freedoms.
Firstly, the Pittsburgh ordinance (pdf) enforces the right of communities to democratic self-governance. For example, Section 4.3 states:
All residents of Pittsburgh possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people’s authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.
Second, the ordinance strips corporations of their Constitutional rights if they seek to engage in fracking. Section 5.2 states:
Corporations in violation of the prohibition against natural gas extraction, or seeking to engage in natural gas extraction shall not have the rights of “persons” afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution.
An Open Letter to Communities Working to Stop Fracking explains how and why these concepts provide authority to the fracking bans (it's a must read for any self-respecting activist in this age of increasingly unrestrained corporate power):
The ordinance seeks to undo over a hundred years’ worth of law in the United States which gives corporations greater rights than the communities in which they do business. Those rights come in two primary forms – first are corporate constitutional rights and powers (including court-bestowed constitutional rights of persons, or “personhood” rights), and second, are corporate rights that have been codified by statewide laws (like Pennsylvania’s Oil and Gas Act), which liberate the corporation from local control in individual issue areas.
When a community makes a decision which runs afoul of either of those corporate rights frameworks, corporate decisionmakers use the courts to throw out the community’s decision. If a municipality bans a State-permitted activity, it gets sued for “taking” the corporation’s property as a constitutional violation. If it attempts to legislate in an area in which the State has created a regulatory program which permits the activity, the community then gets sued by the corporation for violating preemptive state law.
And why wouldn’t they? After all, corporate lawyers created the very rights-frameworks that they use the courts to enforce, concocting many of those doctrines precisely to restrict community lawmaking as far back as the late 19th century.
In fact, those frameworks have been so effective that we rarely even dream about what our communities would look like if we actually called the shots. We even question ourselves as to whether we should have that power or not.
How Does this Apply to Net Neutrality?
Any community like Pittsburgh can enact an ordinance that enforces Net Neutrality at the local level, as the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011 aspires to do at the federal level. And, they can do so now ... without waiting for Congress.
For example, the Seattle City Council could assert its citizens' democratic rights to pass an ordinance that requires broadband providers such as Xfinity/Comcast and Qwest to adhere to the generally agreed principles of Net Neutrality. If providers violate these principles, the ordinance could break the contracts that allow these corporations to operate within the city, strip them of their rights and challenge state and federal laws that usurp the sovereignty of city residents.
In Spokane, Washington, community organizers are making a second attempt to place a Bill of Rights for city residents on the ballot this November. While broadband rights are not included in the current draft of the initiative, any city could use the initiative process to legislate Net Neutrality. Full disclosure: PeopleFirst is beginning a similar right's based initiative here in Seattle.
If desired, a broadband rights ordinance or initiative could also address issues of fair pricing, equal access, unsubstantiated bandwidth caps and public control.
However, without the understanding of the aggregation of corporate power over time and the inclusion of the proper language for challenging these questionable, often Judge-made, corporate rights, these ordinances will lack the teeth needed to be fully effective.
The organization that helped Pittsburgh draft its anti-fracking ordinance, the Community Environmental Legal Defense Fund (CELDF), has helped more than 110 communities around the Northeast draft and pass ordinance that protect their communities from corporate harm. CELDF publishes the text of these ordinances to their website to allow communities to leverage each other's efforts.
If you're interested in learning more, check out CELDF's Democracy School training. PeopleFirst is hosting a Seattle Democracy School June 17th - 18th.
Firstly, the Pittsburgh ordinance (pdf) enforces the right of communities to democratic self-governance. For example, Section 4.3 states:
All residents of Pittsburgh possess the fundamental and inalienable right to a form of governance where they live which recognizes that all power is inherent in the people, that all free governments are founded on the people’s authority and consent, and that corporate entities and their directors and managers shall not enjoy special privileges or powers under the law which make community majorities subordinate to them.
Second, the ordinance strips corporations of their Constitutional rights if they seek to engage in fracking. Section 5.2 states:
Corporations in violation of the prohibition against natural gas extraction, or seeking to engage in natural gas extraction shall not have the rights of “persons” afforded by the United States and Pennsylvania Constitutions, nor shall those corporations be afforded the protections of the commerce or contracts clauses within the United States Constitution or corresponding sections of the Pennsylvania Constitution.
An Open Letter to Communities Working to Stop Fracking explains how and why these concepts provide authority to the fracking bans (it's a must read for any self-respecting activist in this age of increasingly unrestrained corporate power):
The ordinance seeks to undo over a hundred years’ worth of law in the United States which gives corporations greater rights than the communities in which they do business. Those rights come in two primary forms – first are corporate constitutional rights and powers (including court-bestowed constitutional rights of persons, or “personhood” rights), and second, are corporate rights that have been codified by statewide laws (like Pennsylvania’s Oil and Gas Act), which liberate the corporation from local control in individual issue areas.
When a community makes a decision which runs afoul of either of those corporate rights frameworks, corporate decisionmakers use the courts to throw out the community’s decision. If a municipality bans a State-permitted activity, it gets sued for “taking” the corporation’s property as a constitutional violation. If it attempts to legislate in an area in which the State has created a regulatory program which permits the activity, the community then gets sued by the corporation for violating preemptive state law.
And why wouldn’t they? After all, corporate lawyers created the very rights-frameworks that they use the courts to enforce, concocting many of those doctrines precisely to restrict community lawmaking as far back as the late 19th century.
In fact, those frameworks have been so effective that we rarely even dream about what our communities would look like if we actually called the shots. We even question ourselves as to whether we should have that power or not.
How Does this Apply to Net Neutrality?
Any community like Pittsburgh can enact an ordinance that enforces Net Neutrality at the local level, as the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011 aspires to do at the federal level. And, they can do so now ... without waiting for Congress.
For example, the Seattle City Council could assert its citizens' democratic rights to pass an ordinance that requires broadband providers such as Xfinity/Comcast and Qwest to adhere to the generally agreed principles of Net Neutrality. If providers violate these principles, the ordinance could break the contracts that allow these corporations to operate within the city, strip them of their rights and challenge state and federal laws that usurp the sovereignty of city residents.
In Spokane, Washington, community organizers are making a second attempt to place a Bill of Rights for city residents on the ballot this November. While broadband rights are not included in the current draft of the initiative, any city could use the initiative process to legislate Net Neutrality. Full disclosure: PeopleFirst is beginning a similar right's based initiative here in Seattle.
If desired, a broadband rights ordinance or initiative could also address issues of fair pricing, equal access, unsubstantiated bandwidth caps and public control.
However, without the understanding of the aggregation of corporate power over time and the inclusion of the proper language for challenging these questionable, often Judge-made, corporate rights, these ordinances will lack the teeth needed to be fully effective.
The organization that helped Pittsburgh draft its anti-fracking ordinance, the Community Environmental Legal Defense Fund (CELDF), has helped more than 110 communities around the Northeast draft and pass ordinance that protect their communities from corporate harm. CELDF publishes the text of these ordinances to their website to allow communities to leverage each other's efforts.
If you're interested in learning more, check out CELDF's Democracy School training. PeopleFirst is hosting a Seattle Democracy School June 17th - 18th.
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