Chapter 3
Jeremy Carp, Isabella Kulkarni, and Patrick Schmidt
“In the United States, transparency is becoming an ideal worthy of Mom and apple pie.”1 The debate over “net neutrality” regulations in the United States, one of the most significant regulatory battles on the rapidly changing technological landscape, has not occurred in a vacuum. The clash between access providers, on the one hand, and consumers and public interest advocates on the other, over the scope of content limits and consumers’ awareness of those limits, has been framed by the conceptual vocabulary and apparatus made available to the interested parties. Importantly, one of the key principles enshrined in the FCC’s Open Internet regulations adopted in September 2011 was the language of transparency: that broadband providers “must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services.”2 In providing for this, the parties to the struggle were drawing on what is a comfortable foundation of both the ideological landscape of American regulation and the wider contemporary Zeitgeist.
Transparency serves as both an imperative and an aspiration. As apparent in the United States and elsewhere, it has immediate appeal and a developing record as an instrument of public policy. The roots of transparency are not new either, even within the early discussions of network management and competition. Yet, the motivations for its emergence in regulatory schemes and its effects in practice can remain obscure. The FCC’s net neutrality regulations provide a valuable opportunity to observe the rapid rise of the “transparency” agenda for regulation. In this chapter, we trace the development of that frame, an account that highlights the significance of civil society advocacy and a critical window for policy reform in making the rule take shape. In trying to understand the emergence of the transparency frame within debates on network neutrality, we argue that transparency has significant appeal because of the way in which it evades the most difficult political questions about the extent of government regulation on network providers, and suggest that it takes root because of both general and specific factors. However, as we further note, it is difficult for the transparency frame to live up to its appeal; indeed, our second ambition here is to highlight the many vulnerabilities of transparency in the effort to ensure an open Internet.
In order to consider the compromises and limits of the transparency frame, this chapter first examines the individuals and organizations that played a role in an evolving agenda of disclosure for Internet access providers, focusing on both the Comcast enforcement action of 2008 and the 2010 Open Internet Regulations. The second part turns to the uncertain prospects of the latest regulations, using frameworks and evidence from across regulatory sectors to suggest some possibilities for the path ahead. Ultimately, we provide a critical account, one that is more skeptical about the role of transparency in policy design than the wider discourse often allows. However, we argue that the FCC’s multi-faceted approach to regulation appears designed to answer some of these objections, at least in part.
The Rise of Transparency in
Net Neutrality Regulation
The expectation that public policies will promote transparency has deepened over the last forty years, as trust in political institutions has dropped precipitously in the post–Watergate era. Accountable public administration and the regulation of private entities have come to share the same interest in ensuring a broad measure of openness, allowing those outside either type of organization to understand the purposes and processes by which action is taken.3 Although transparency has not always been a central principle or even a readily identifiable element of the regulation of communication networks and media, reflections of the idea have consistently and naturally manifested themselves in the rhetoric of public interest groups, government bodies, and even businesses. In time, those ideas took on a sharper form.
Toward Consumer Disclosure
By the early 2000s, both practitioners and academic observers were concerned about the basic principles of competition and the need for fair practices in the marketplace for Internet services.4 These paralleled much older concerns about discrimination on common carriers, whether the network in question was a telegraph or a railroad. Perhaps echoing this conceptual ancestry, the earliest discussions of network neutrality made no direct mention of transparency, instead deploying the ideas of informed consumption or industry disclosure as crude placeholders. In these initial discussions, ideals tied to transparency were used sparingly and narrowly, lacking a strong and clear rationale beyond informed consumer choice.5 This subordinate manifestation of transparency contrasts sharply to later formulations and the eventual elevation of transparency to the status of a central principal for network neutrality. Although a consensus quickly emerged around the benefits of informing consumers about basic broadband industry practices through increased transparency, early engagement with the concept did not mark it as a coherent, guiding principle.
The first group to publicly advocate for the importance of informed consumers was, in fact, the broadband industry itself. Shortly after law professor Tim Wu advanced the term “network neutrality” in early 2003 (building on nineteenth century concepts), an industry advocacy group known as the High Tech Broadband Coalition (HTBC) published a brief document titled “Broadband Principles for Consumer Connectivity,” outlining the broadband industry’s preliminary position and recommendations vis-à-vis the degradation of internet connections.6 In this document, the HTBC proposed to the Federal Communications Commission (FCC) four broadband connectivity principles designed to ensure that consumer interests remained protected, while simultaneously warning against the harms of overregulation.
First among these principles was the idea that “consumers should receive meaningful information regarding their broadband service plans.”7 The ability to access such information, the HTBC tacitly suggested, would make obsolete the need for harmful regulations on the still nascent broadband industry. However, far from being an overarching and ringing endorsement of transparency, this principle represented a limited, vague, and non-binding commitment to truth in advertising. Nevertheless, the industry’s preliminary approach to network neutrality would function to position basic information disclosure as an intuitive dimension of the emerging network neutrality debate.
Less than a year later, then FCC Chairman Michael Powell offered his own perspective on transparency and network neutrality practices. During a February 2004 speech titled “Preserving Internet Freedom: Guiding Principles for the Industry,” Chairman Powell outlined an unofficial preliminary guide to the Commission’s evolving broadband management philosophy.8 Echoing the broadband industry’s statement, Powell articulated a central goal of consumer empowerment through the freedom to obtain meaningful information regarding broadband service plans. “Simply put,” stated Powell, “such information is necessary to ensure that the market is working, as it allows broadband consumers to make rational choices among different pricing and service plans.”9 The policy goal articulated here does not reflect a normative good but a utilitarian need. The logic underpinning this principle closely echoed that used by the broadband industry, suggesting that although the FCC recognized some form of transparency as a necessary step, its scope could be limited to basic service information and be enforced by the market rather than by mandatory regulations. In this way, Chairman Powell positioned transparency as a supporting rather than central principle, conducive to limited regulation and aimed primarily at strengthening consumer protection.
Although less pronounced than in later rounds of the network neutrality debate, the classic tension between government mandates and voluntary regulation was apparent. This tension sets the deeper ambitions and expectations for how the interested parties believed transparency would function in a scheme of network neutrality. In the earliest documents discussed above, the FCC and broadband industry were in almost full agreement over transparency’s appropriate role: non-mandated and limited. Indeed, the absence of the “transparency” label suggests that the fullest conception of openness wasn’t yet at play. However, within these same comments, both groups hinted at how they might approach transparency differently in the future. For instance, Chairman Powell noted that, “although most in the industry recognize that providing basic information is in their own self-interest, [the FCC] must nevertheless keep a sharp eye on market practices that will continue to evolve rapidly.”10 Similarly, the HTBC was careful to qualify its suggested management principles, indicating in passing that they need only be codified under extreme circumstances.
This emerging tension between mandated and non-mandated transparency manifested itself prominently in the FCC’s 2005 Internet Policy Statement.11 In this document, the Commission outlined its official, proposed approach to maintaining an open and interconnected Internet, offering four general policy principles. Whatever the advancement represented by the statement, in terms of transparency the FCC didn’t expand upon the idea of informed consumer choice as discussed by Chairman Powell in 2004. Omitted was any reference to the need for basic service information or specifications from broadband service providers.
While one of the principles did make an exceedingly subtle allusion to the context for disclosure when it stated that “consumers are entitled to competition among network providers, application and service providers, and content providers,”12 it removed any direct mention of basic service information as a component of a viable scheme for industry competition. This virtual erasure of transparency from the document was a direct nod to the broadband industry’s interest in a voluntary ethos of disclosure rather than an imposed system of rules. In the following years, however, this deference to industry interests regarding transparency would disappear as the debate surrounding network neutrality gained momentum. Instead, transparency would come to inhabit a prominent and uncompromising position within the discourses of network neutrality. It is to this shift that we now turn.
The Disclosure Agenda
In the wake of the FCC’s 2005 Policy Statement, and among extensive discussion of the course of broadband regulation, the issue of transparency began to attract increasing attention from public interest advocates and academics.13 Still lacking a solid foothold in the lengthy debate over net neutrality, a campaign to promote open Internet practices through increased government regulation gave new momentum to transparency in this industry sector. In 2006, the public interest group Free Press teamed up with the Consumers Union and the Consumer Federation of America to publish a harsh rebuttal of the FCC’s Policy Statement and its lack of attention to disclosure.14
Although the coalition’s comments dealt largely with the implementation of the Commission’s policy principles, the absence of transparency guidelines elicited sharp criticism as well. “[These policy principles] sound good,” the document stated, “but say nothing about how and whether a network owner must disclose to its subscribers that discriminatory terms of service have been established on the network.”15 The coalition was not alone in noting the need for greater consumer protection, though the evidence of discriminatory practices at this time was still uneven.16 The criticisms marked the beginning of an extended exchange with the broadband industry over transparency’s optimal role in preventing content discrimination. As mentioned in the previous section, this tension would deeply impact all parties’ (i.e., industry, public interest, government) understandings and expectations of transparency. Although the broadband industry was initially successful in advancing its own laissez-faire approach to the provision of consumer information, this dynamic gradually changed as (1) Free Press and other public interest groups focused their efforts on the importance of mandated transparency, and (2) it became increasingly clear that the broadband industry could not or would not sufficiently regulate its own disclosure practices.
In the meantime, it did not take long for the FCC to internalize the public pushback against its policy principles and direct its gaze back toward questions of transparency. In its 2007 Notice of Inquiry on Broadband Industry Practices, the Commission sought feedback on a wide range of issues related to network management practices, including disclosure.17 “With regard to all practices commenters describe [in regards to content discrimination],” wrote the Commission, “we ask whether providers disclose their practices to their customers, to other providers, to application developers, and others.”18 This is a rhetorically small change, advancing a simple question about industry disclosure practices, but it represents a renewal of the agenda and a broadening of the scope of inquiry, one that divorces disclosure from consumer protection alone to a wider need for industry transparency. Moreover, the document itself was premised on the very essence of transparency, with the Commission gathering detailed information about broadband industry practices in order to assess an appropriate course of action regarding network management rules. In this way, the Notice of Inquiry elevated openness to a new position of prominence.
As the discussion on network neutrality intensified, so too did the salience of transparency. In the short period between April 2007—when the FCC published its Notice of Inquiry—and August 2008, public interest groups and broadband providers ratcheted up their transparency-driven rhetoric and worked to more fully outline their positions regarding the concept. By the later date, marking the publication of the FCC’s opinion in an investigation of Comcast (discussed below), it was clear that transparency was no longer ancillary, but in some respects had become the leading edge of regulatory efforts.
In February 2008, AT&T and Verizon submitted comments to the FCC that devoted entire sections to the appropriate role of disclosure in promoting responsible broadband practices.19 To this point, the word “disclosure” appears to have been used only sparingly outside of academic circles, and discussions of the term had been limited to three lines of text or less. However, with its latest comments, AT&T argued forcefully that the government should avoid mandated disclosure rules, especially as regards network management practices: “The Commission should encourage broadband networks to make voluntary disclosure of customer-usage limitations as consumers will experience them. The Commission should not expect, let alone require, broadband networks to disclose actual network-management practices."20 AT&T reasoned that the technical methods used by service providers were highly proprietary and might leave networks open to gross breaches of security and performance. Mandated disclosure, moreover, would be superfluous, since “private initiative is more than sufficient to protect consumer interests in the well-functioning Internet marketplace.”21 From this perspective, openness had its limits, and the needs of the marketplace produced its own supply of information. Verizon, in its comments, made a similar nod toward the ideal way of protecting consumers. The expansion of the discussions given over to disclosure didn’t move the battle lines on the issue, but it did mark the increasing emphasis given to transparency. For AT&T, Verizon, and other industry advocates, reports of voluntary disclosure were becoming the counter-burn to stop the forest fire: one tool in opposition to regulatory mandates.
Naturally, Free Press and other public interest advocates advanced a much different position.22 The group called for disclosure but had begun to think more carefully about what consumers needed in order to make such regulation useful. “The FCC,” they wrote, “should issue a rule that requires full disclosure to consumers of what services and applications are being affected when and in what ways.”23 Laissez–faire was not good enough. “Even in a competitive market, disclosure must be meaningful and understandable. . . Customers should be provided with enough undisguised information to have the ability to know when to expect that network management practices are taking place.”24 Beyond consumers, industry needed to explain “network management activities with sufficient detail for a programmer reasonably skilled in the field to write applications meeting and taking advantage of these management activities.”25 And it couldn’t be voluntary: the penalties for violating disclosure rules had to be large enough to deter possible attempts to hide information.
More importantly, however, Free Press made clear in separate comments that mandated transparency alone, although highly desirable, was not itself sufficient to maintain a free and open Internet.26 “Disclosure is necessary,” the group wrote, “but disclosure is not enough.”27 New evidence was emerging from the field, casting into doubt whether the market, at least at its present levels of concentration, could support market outcomes desired by consumers. Disclosure would not prevent discrimination if “all network providers had the same incentive to discriminate against applications.”28
In the midst of this debate, the FCC recognized the importance of the transparency issue. In its 2008 public hearings at Harvard, Stanford, and Carnegie-Mellon, members of the Commission made their first direct references to the term transparency and noted that the Commission had “teed up before us questions about the role of transparency and disclosure between providers and consumers, an area that warrants further exploration.”29 For instance, Commissioner Adelstein, drawing directly from language previously used by Free Press, stated that he strongly believed broadband providers should provide “clear and accurate information—in plain English—about their policies and how they affect consumers’ use.”30 Seeking a balance between the poles of the debate, Commissioner Tate emphasized that the Commission needed to “ensure that consumers are informed and protected,” while avoiding “intrusive governmental action.”31 The Commission’s other conservative member, Robert McDowell, further channeled the broadband industry’s skepticism in his comments, writing that “disclosure might be beneficial to the public interest, but isn’t the private sector the best forum to initially try to resolve these conflicts?”32
Providing the backdrop to these administrative proceedings, and a factor helping participants to recognize “transparency” as an issue, was the FCC’s enforcement action against Comcast. In August 2008, the FCC issued an Opinion and Ruling in an investigation of the industry giant.33 The run-up to that ruling had done more than anything else to elevate transparency to a guiding principle. The case emerged when in 2007, Robb Topolski discovered active measures by Comcast to block BitTorrent-based file trading. Comcast had denied the claim but later admitted its practices and settled a class action lawsuit. After pursuing their own investigation, the FCC, in addition to concluding that Comcast had participated in unreasonable network management practices, strongly emphasized that the company’s failure to disclose its discriminatory practices had seriously exacerbated the situation. “Although we have not adopted today general disclosure requirements,” they wrote, “the anti-competitive harm perpetuated by discriminatory network management practices is clearly compounded by failing to disclose such practices to consumers.”34 In its discussion, the Commission reasoned that legible and comprehensive disclosure was paramount for four reasons.
First, disclosure was necessary to prevent customers from improperly blaming applications rather than Internet connections for service limitations. This was especially important if an application could be used to provide services that competed with the broadband operator’s own service. Second, disclosure was necessary to ensure proper consumer choice and a “vibrant and competitive free market.”35 Third, disclosure was necessary for the FCC itself to accurately understand industry practices and to ensure compliance with regulations. Finally, and most importantly, the Commission made clear that “reasonable” network management practices were defined by a provider’s willingness to be transparent about them. “A hallmark of whether something is reasonable,” they wrote, “is whether an operator is willing to disclose fully and exactly what they are doing.”36 In short, by advancing new mechanisms for regulating the market, transparency was now becoming central to the FCC’s understanding of fair network management practices.
Transparency as a Rule
The D.C. Circuit Court of Appeals ultimately overturned the FCC’s Comcast order, declaring that the FCC lacked sufficient statutory authority,37 but the incident seems to have solidified the regulator’s conviction about the problems in the broadband marketplace. The Comcast Order aggressively propelled the FCC closer to the vision of transparency articulated by public interest advocates, but the Commission stopped short of taking direct and binding action. However, as Free Press and its allies continued to demand mandated disclosure regulations and overall increased transparency,38 the FCC further lost faith in the industry’s capacity to regulate itself, inching closer to reifying transparency as a prominent rule and principle of network management. In a September 2009 speech at the Brookings Institute, Chairman Julius Genachowski proposed a “sixth principle” of network management centered on transparency. It was clear, he argued, that “we cannot afford to rely on happenstance for consumers, businesses, and policymakers to learn about changes to the basic functioning of the Internet.”39 In particular, Genachowski reasoned that greater transparency would give consumers the confidence of “knowing that they’re getting the service they’ve paid for,” “enable innovators to make their offerings work effectively over the Internet,” allow policymakers to ensure that broadband providers are “preserving the Internet as a level playing field,” and help “facilitate discussion among all the participants of the Internet ecosystem,” thereby reducing the need for government involvement in network management disagreements.40 Although the Chairman made clear that certain proprietary and security information could be withheld, there was nevertheless a definitive widening of the gap between the Commission’s approach to network management and that of the broadband industry.
The FCC’s Notice of Proposed Rulemaking in December of 2009 brought its conceptualization of transparency into line with wider societal framings, using the classic Louis Brandeis formulation to argue that “sunlight is the best disinfectant and that transparency can discourage inefficient and socially harmful market behavior.”41 To serve this end, the FCC drafted a transparency rule, broadly outlining the obligations of broadband Internet providers: “ Subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.”42
This somewhat vague principle amounted to a coming out party for transparency, providing it with a tentative yet central place in the FCC’s governing philosophy. Consumers would benefit by acquiring the ability to overcome information asymmetries, thus allowing users to make informed purchasing and usage decisions. But the Commission also believed service providers and policymakers would benefit. By reducing uncertainty, mandated disclosure would “benefit content, application, and service providers and investors” by providing incentives to invest in research and development.43
Service providers like Verizon,44 Comcast,45 and AT&T46 uniformly attacked the FCC’s evolving position on transparency. In addition to forcefully reiterating their argument that transparency should be promoted within a voluntary and self-regulating framework, broadband providers further challenged the Commission’s proposed rules on three levels. First, they argued that any disclosure guidelines needed to place an exclusive emphasis on informing and educating broadband consumers. Disclosing additional technical details and network management practices to the public, content providers, and application providers, they reasoned, would be both needless and harmful. Indeed, such compelled disclosure would serve “only one conceivable purpose: to facilitate network manipulation by third parties.”47 Second, service providers attempted to paint the proposed rule as arbitrary, reasoning that it would be unfair to create a new legal burden for service providers without doing so for application and content providers alike. “If there is an issue in the Internet eco-system about transparency and disclosures,” Comcast explained in its January 2010 comments, “it makes no sense to impose a new duty on broadband providers alone.”48 Finally, broadband providers argued that, should the FCC choose to enact new network regulations, the scope of its proposed transparency rule would need to be narrowed significantly.
Conceding some ground, Comcast offered its own revised transparency rule: “Subject to reasonable network management, broadband ISPs and Internet application and service providers must disclose such information about its service as is reasonably required for consumers to enjoy the protections specified in this part.”49 Although superficially similar to that of the FCC, Comcast’s proposed rule greatly narrowed the requirement and made consumers (not potential competitors) the sole audience of service information.
Rulemaking involves posturing and position-taking within a legal frame.50 While proposing approaches to the FCC, parties to a rulemaking are also building a record on which they could mount a challenge in court, where they would be questioning the logic or adequacy of the government’s conclusions. Free Press and other public interest groups submitted their own comments in January and April 2010, demanding that the FCC go even further in its commitment to mandated transparency.51 They asked for a transparency policy that was comprehensive, requiring both “high-level information concerning network management practices, geared towards a general audience,” and “detailed information on purposes, methods, and triggers of network management, sufficient to enable third party providers and savvy users to make effective choice and optimal use of the service.”52 Doing battle with the industry, Free Press attacked vague formulations and pushed for a rule that would support effective enforcement.53
After approving new rules in December 2010, the FCC delayed publication of the regulations until September 2011. When it did so, the Commission’s movement away from self-regulated transparency was complete. The FCC’s rationale for the rule had blossomed and matured, containing a defense of mandated transparency for its ability to “promote competition throughout the Internet ecosystem,” to reduce providers’ “incentive and ability” to use discriminatory practices, to “increase consumer confidence,” to facilitate “innovation, investment, and competition,” and ultimately, to “increase the likelihood of providers’ compliance with other “open Internet principles” and encourage collective, expedient solutions to any “problematic conduct.”54 As such, a revised version of the transparency principle previously suggested in the Notice of Proposed Rule Making was codified as a rule, and reads as follows:
A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.55
Although superficially similar to the original proposed rule, the adopted version incorporated public interest critiques and added more specific language throughout. In addition to noting that providers must “publicly” and “accurately” disclose not just their network management practices but also performance and commercial terms, the rule specified that disclosures must be sufficient for a broad array of parties to productively use this information. The Commission stopped short of mandating a specific disclosure format and left some flexibility in terms of what information needed to be disclosed and how to disclose it. Transparency wasn’t enough. If the industry had hoped that transparency regulations could be used as a rationale for fending off other regulations, it wasn’t to be. In a direct nod to Free Press, the Commission wrote that “although transparency is essential for preserving Internet openness, we disagree with commenters that suggest it is alone sufficient to prevent open Internet violations[;] the record alone does not convince us that a transparency requirement by itself will adequately constrain problematic conduct.”56
Though for our purposes here the rule represented a significant step in the progression toward a transparency framework, in a wider light the FCC’s rule was a compromise that many consumer groups viewed as insufficient. Andrew Jay Schwartzman, senior vice president and policy director for the Media Access Project, tersely summarized the mood by saying that, “there is a reason that so many giant phone and cable companies are happy, and we are not.”57 In the immediate reaction, some tried to see the rule as “a vital first step,”58 or “a floor, not a ceiling,”59 but others were much harsher in their criticism, predicting that the rules would be “subject to manipulation” by industry firms unless the FCC enforced them vigorously.60 Free Press, for its part, filed a challenge to the FCC’s rules, joining U.S. mobile phone company Verizon in doing so. With litigation continuing, net neutrality regulation remains a work in progress.
Making Transparency Effective
Transparency was not the sole approach employed by the FCC in its most recent efforts to ensure network neutrality, but so much had changed since the FCC’s 2005 statement of principles that one observer could now claim that transparency is “the most important component of a net neutrality definition.”61 Given the other legs the FCC planted in its regulatory stool, transparency might become the most relied upon feature. Courts have long struggled to define “reasonable” in any context, and the FCC’s regulations do no better in explaining what “reasonable discrimination” providers may impose upon the regulation of lawful network traffic.62 If, in practice, some discrimination is inevitable in network management, transparency then at least becomes the very important backstop by which those discriminations could be known to consumers. The primacy of disclosure in this case matches the emergence of transparency as the perhaps the most significant trend to emerge in the regulation of government and by government. Yet, transparency is similarly prone to vagueness, and skepticism is needed to question how effective it will be as a scheme of regulation. In this section, we first locate the manifestation of transparency regulation within the wider net neutrality movement; we then situate net neutrality’s place in the wider understanding of transparency to suggest the driving forces and possible outcomes in this context for regulation.
Of Ideology and Aspiration
Why did transparency rise so swiftly as a key concept from what at first appeared a simple desire for greater consumer choice? It is all too easy to link the march of transparency to a drumbeat of inevitability. To be sure, a progressive narrative can be told, starting in the American case with the maxims of James Madison (“a popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both”) and Louis Brandeis (“Sunlight is said to be the best disinfectant”).63 The latter’s invocation extended the concept from beyond governmental openness to sunlight as a tool for the regulation of the private economy. Brandeis’ opposition to corporate trust fraud later gained wider salience following the stock market crash of 1929, and his advocacy of disclosure and publicity influenced the role of disclosure by financial market participants as the core of the Securities and Exchange Acts of 1933 and 1934.64
A more self-sustaining politics of transparency was birthed in Cold War distrust and raised on a steady diet of scandal, from Watergate to Guantanamo. As a tool of accountability, transparency became “the antidote to the wrong of excessive governmental secrecy,” the so-called golden ticket out of a repressive regime into one of greater democracy.65 At the governmental level, the U.S. Freedom of Information Act became a model for such laws around the world, so much so that in recent years more voices have called for the recognition of the right of access to information as a human right.66 The normalization of the “right to know” increasingly extended beyond governmental accountability, now enshrined as part of the 2007 Open Government Act and subsequent Obama administration initiatives, to virtually all policy sectors. The effect has to been to naturalize the language of transparency, that whether you are a citizen or a consumer, if you are affected by an organization it automatically follows that you should receive access to information about its activities.
Specific currents in recent decades may provide a clearer understanding of the ideological forces at work. From one perspective, the spread of transparency values may simply be reactive, a turn against the inefficient markets of the status quo, which had allowed resources to be “inaccessible, invisible and/or concealed.”67 The push toward market values, particularly since the Reagan administration’s deregulatory efforts of the 1980s, arguably has elevated the need for information. But transparency’s current “quasi-religious authority as a contemporary doctrine of governance”68 can also be linked to the rise of accountability, particularly in a globalizing world that has raised up new, complicated technologies of social organization.69 In this light, “for institutions to be held accountable, their actions must be visible.”70 This “values dimension” might then be seen as an outgrowth of the classic constitutional aim of checking otherwise un-checked power and giving over the ultimate direction of the state to popular authority. In an age suspicious of regulatory power—to its critics, both unaccountable and inefficient—the FCC’s support for transparency could disperse information and thus power, in ways that enhance democracy.71
A more critical view would see transparency less as “better” regulation and more as simply “weaker” regulation. For regulated firms, the appeal of transparency in net neutrality regulation may be that the noninterventionist, market-supporting aims of transparency provide businesses with the type of flexible accommodation that would not greatly threaten the status quo. For the regulator, transparency is politically possible, even if less than ideal. As it was, the FCC’s regulations spurred efforts in Congress to overturn the rules; a more vigorous set of regulations would have been more difficult to defend. With critics on all sides and recent threats of both legislative and judicial oversight, the FCC has faced particular pressure to compromise.
Across sectors of the economy, disclosure regulations are something that can be passed, sometimes with bipartisan agreement, because they have intuitive appeal for advocates of regulation but do not fundamentally upset the established market dynamics. Disclosure regulations impose administrative costs, but those costs can be less tangible than direct regulations that curtail a current business practice. That isn’t to say that disclosure regulations are merely symbolic, but that they can be criticized in some cases for leaving a significant gap between the aspiration or assumed impact and the reality.72 Numerous broadband industry groups reacted to the rules by praising the spirit of compromise embodied in the FCC’s net neutrality rule, acknowledging that the FCC could have gone much further with a direct regulatory approach.73 Whether transparency is a hollow gesture in the area of net neutrality will depend on the experience with it in the years ahead.
Critical Possibilities
Despite the fact that net neutrality regulation is too new to begin an evaluative analysis in earnest, the conceptual model underlying transparency regulations— such as the FCC’s Open Internet rule—can still direct our scrutiny to those points in the process where the hopes of regulators and consumer advocates might be most easily dashed.
An elegant model for transparency, helpfully elaborated by Fung, Graham and Weil, describes an “action cycle” consisting of two primary actors: the disclosers and the users.74 The public policy aim of disclosure is not disclosure for its own sake, but as a trigger to a series of effects, direct and anticipated. Once an initial requirement to disclose information has been established, the users— here, the consumers and content providers—will begin to receive the information from disclosing organization. The information sought by the regulation should not be trivial but calculated to shape the market decisions of the consumers and relatively more sophisticated recipients of the information. A broadband provider disclosing information about its network management practices may find users prepared to change service providers, depending on what the disclosures reveal.
But it is not necessary for consumers to actually get that far for transparency to do its work; the anticipation by companies of possible negative publicity, coupled with the knowledge that certain types of activities will now be disclosed, could discourage those behaviors to begin with. Thus, disclosure regulations can promote a virtuous cycle of responsiveness by firms to consumer or market wishes, real or anticipated. In that way, the net would remain neutral because no firm wants to see what could happen if they were used as an example in the way that Comcast was.
Many steps of the action cycle invite scrutiny. First, what is the information that the regulation requires and how vital is it to the decisions being made by consumers? Here the FCC has provided for a degree of circularity, by defining the type of information to be disclosed through reference to that which is “sufficient” for good decision-making by interested parties. What is it that will be sufficient? The answer may depend on the kind of response the FCC wants from consumers—and knowledge of what will move consumers to play a role as “enforcer” in the marketplace. The range of interpretations that these allow makes for rules that can easily be swayed by the changing politics of the highly divided five-member Commission and the rapidly changing technological setting for further net neutrality orders and enforcement actions.75 “What the FCC wants” will require a continuing action by a divided Commission. There can be incentives to default to maximum disclosure, including of information that is tangential to the kinds of decisions consumers and competitors actually need to make.76 The formal enforcement powers available to the FCC may provide a credible threat, but their sufficiency cannot be guaranteed.
However, the FCC continues to have the advantage of being merely the formal enforcer. As seen in the Comcast case, technically proficient consumers possess some ability to identify practices that are affecting performance, and they may help to ensure that providers stay forthright with all of the technical practices that shape service use. Securing compliance with regulations remains a significant challenge in both theory and practice. Disclosure can be very difficult to regulate, because firms can be tempted into thinking—sometimes justifiably—that a secret can be kept, or that the risk of it being revealed is worth it in light of the immediate economic interests.77 Even though transparency regulations philosophically aim to bring market incentives to bear on companies by simply providing a more informed marketplace, the mandate for disclosure requires enforcement, which opens up all the classic challenges of winning compliance with the law.78
The next juncture for scrutiny occurs once information has been released to the public, and there are numerous ways that the model can break down. For one, scholars and policy makers have learned in recent years that the passive release of information, especially in fields with large volumes of information, may not make waves in the marketplace. A regulator cannot take for granted that information will be “visible” to its intended audience simply because it has been released to the public.79 As a case in point, the large volume of data available about donations to political campaigns has not enlightened voters, despite efforts of public interest organizations to pull it all together in easily digestible web-sites. Civil society organizations including interest groups and the media can be essential in receiving the information and processing it in a way that wider consumers can understand more readily. Over time, regulations can evolve to require that organizations package their disclosures in formats that ease the digestion of information further.80 As net neutrality regulations evolve, greater emphasis will need to be placed on the audience for the communication: who needs what information, and how can transparency be better targeted to the different types of consumers?81 “Plain English” initiatives, common to both the FCC and other regulatory bodies such as the Securities and Exchange Commission, take their cue from the recognition that the highly legalized form of disclosures can work against clarity of meaning and understanding. The contract language written in a small font and sent to consumers is unlikely to be read or integrated into a consumer’s behavior.
It is not enough for consumers to be presented with the data. Further challenges plague how potential users employ data. First, will recipients make good decisions because of this data? Even if information is understood, consumers may not give much weight to that information. Under the 1990 Food and Nutrition Labeling Act for example, health advocates have observed that the clear and simple statistics about calories and fat grams on the side of a Ben & Jerry’s container simply hasn’t guided many consumers in making good dietary choices. In the more complicated technical world of broadband regulation, information may fail to become “embedded” in consumer decision-making when users fail to see the relevance of disclosed information to the decisions they’re making.
Second, for consumer choice to serve as a check on corporate decision-making, individuals must have practice options if they are going to act on it in the marketplace. Driving a skeptical view about the prospects for transparency in the Open Internet regulation, it isn’t clear that consumers will always have alternatives, or if they do, that those appear sensible for reasons such as cost and convenience. And, vitally, if transparency were ever the only mechanism, then market collusion or similar behavior could nullify the potential of greater information in the marketplace: if all providers offer the same type of services and conditions, consumers would have no alternatives, no matter how much they know and how much they wish to change service providers. Boycotts against individual firms, which could emerge as a result of disclosure, are also no solution. Comcast faced calls for boycotts following the revelation of their bandwidth management practices, but those attempts fizzled. In other sectors, it has been very difficult to find evidence that well-organized and salient boycotts facilitated by disclosures could have much impact on large corporations.82 The ISP market may be particularly difficult for many consumers, due to the contract barriers or simple inconvenience with switching service providers. Industry consolidation may further shrink consumer choice. Some of the most significant challenges to net neutrality may ultimately have to be met by antitrust investigation rather than the FCC. Using transparency as a tool for regulating mobile services could prove even more problematic in light of the limits of consumer choices.
All told, there are serious concerns one can hypothesize about the future of transparency regulation as a way of jump-starting the action cycle toward net neutrality. But long-term concerns also intervene in a system that is well enforced and initially effective. Over time, well written regulations can fall victim to efforts to undermine the rules, or those whom a rule regulates begin to play a greater part in the regulatory process.83 The “life cycle” of regulations often sees the advocates of regulation disappear after a victory, allowing opponents of the regulation to mount a successful fight-back. As an independent regulatory commission, the FCC is still linked to political winds through Presidential appointment. As administrations change, the closely balanced structure of the FCC similarly tilts. Even minor differences of emphasis within a scheme of transparency could meaningfully change what consumers know and what firms are able to do.
Even this account of the action cycle doesn’t complete a survey of the possible challenges to effective regulation through transparency. Some of the most vexing challenges are the unanticipated adaptive responses to transparency regulation that have been observed in other sectors of the economy. Political adaptation—from a posture of opposition to one of support for transparency—may be particularly likely in the telecommunications sector, as suggested by many of the responses of industry groups to the FCC rules. Support for transparency can often be used as a rhetorical wedge against stronger regulations when the acceptance of transparency as a necessary element is rhetorically turned into the sufficiency of transparency. Organizational adaptation is another common outcome unanticipated by regulators and advocates of transparency regulations. All firms naturally seek to minimize the disruption of regulations, and unless well designed, transparency regulations offer particularly broad avenues for creative compliance. Information is a particularly malleable and manipulable commodity. As regulators establish categories and requirements, firms—particularly with the contributions of legal counsel—work to frame disclosures in such a way as to avoid drawing the interest or ire of consumers and regulators.84 Techniques that allow “nondisclosing disclosure” have emerged in areas such as tax and securities regulation, and network neutrality regulations may be equally vulnerable.
At times, nondisclosing disclosures can be the product of an explicit effort by firms to remain “perfectly legal” with disclosures, while manipulating the text (such as contract terms or notices) in whatever way necessary to obscure the meaning of the disclosure. At the heart of research and commentary on transparency over the past decade lies a vital difference of meaning between transparency and disclosure. In the FCC’s rule, the terms are used interchangeably: disclosure is a tool to produce transparency, transparency simply requires disclosure. That pairing is simplistic and inadequate. The disclosure of information does not ensure that the provision of broadband services is transparent. In the work ahead for the FCC, the agenda may need to include discussion of ways to monitor company disclosures and the informational marketplace available to users, including close scrutiny of ISPs’ terms of service that are inordinately complex, detailed, or vague. The FCC may also need to support the work of civil society organizations who attempt to collect and disseminate such information, or it may need to take on some of that work itself, such as through a central repository of information or public information campaigns. There remain alternatives to disclosure, of course: one answer to the failures of transparency regulation is to fall back on direct regulation, such as specifically barring certain practices.85
The FCC’s Open Internet rule allowed for “flexibility in implementation of the transparency rule” but Commissioners were clearly concerned about making disclosures “effective” and suggested that they be “timely and prominently disclosed in plain language.”86 The first years of the rule are essential in setting the meaning of these practices. Individual companies will model their disclosure activities around the practices that become the norm, because there is safety within that norm. The “look and feel” of disclosures can become routinized, an environment in which disclosures are formally made but become something that consumers ignore because they know what to expect, and decide that the information does not help them. The energy and attention surrounding new disclosure requirements fades over time, and if the design and care of the transparency system do not support it, the ability to shape the behavior of marketplace participants will be lost.
Conclusion
It is easier to explain the past than to predict the future. From a virtual absence to its status as the dominant strain in the FCC’s Open Internet rulemaking, the rise of transparency in network neutrality discussion fits easily within the wider narrative of American regulation. The FCC’s path to transparency in the Open Internet regulation reflects a common desire across sectors of the economy to subject organizations to a scheme of disclosures, so that the marketplace itself can provide the regulation and accountability, as an alternative to direct regulation. The ideological acceptability of transparency regulation also makes the availability of information about network management and practices an appealing point of compromise when compared to even more contentious tools of regulation. Transparency resonates well with the ideals of information technologies—the capacity for generativity in a world of open competition.87
As the net neutrality debate moved to a transparency frame, it employed a model that has become increasingly well understood. Whatever its “mom and apple pie” quality, as a regulatory tool, disclosure is fickle and can fall short of expectations for many different reasons. The FCC’s definition and enforcement, firm adaptation, and how others actually consume the information that is generated will all be essential for transparency to sustain an open Internet. We sound a note of caution and warning for the road ahead: disclosure mechanisms cannot be instituted and then left to run on auto-pilot. They require care and initiative in order to be effective. The FCC recognized as much when it encouraged third-party experts and Internet “end users and edge providers” to play a role in monitoring the field.88 Even more importantly, the FCC rejected the idea that transparency is “alone sufficient to prevent open Internet violations.” No rhetoric or appeals to an ideal conception should be allowed to obscure the ways in which the semblance of transparency regulation could legitimate distortions in the marketplace and constrain the promise of an open Internet.
Notes
1. Sandy Lutz, “Transparency–‘Deal or No Deal’?” Frontiers of Health Services Management 23, no. 3 (2007): 13–23.
2. Federal Communications Commission, “Preserving the Open Internet”, Docket No. 09–191. Available at: http://www.fcc.gov/rulemaking/09-191.
3. Christopher Hood, “Transparency in Historical Perspective,” Transparency: The Key to Better Governance? Proceedings of the British Academy. (135). Eds. Hood and David A. Heald (Oxford: Oxford University Press, 2006), 4–5.
4. See Analysis to Aid Public Comment on America Online, Inc. and Time Warner Inc. Proposed Consent Agreement, 65 Fed. Reg. 79861 (December 20, 2000); Sarah G. Lopez, “Evaluation of the AOL Time Warner Consent Decree’s Ability to Prevent Antitrust Harm in the Cable Broadband ISP Market,” St. John’s Journal of Legal Commentary 17, no. 1 (Winter 2003): 127–175.
5. E.g., Christopher S. Yoo, “Would Mandating Broadband Network Neutrality Help or Hurt Competition? A Comment on the End-to-End Debate,” Journal of Telecommunications and High Technology Law. (2004): 23–68.
6. High Tech Broadband Coalition, Broadband Principles for Consumer Connectivity, September 25, 2003. Available at: http://www.netcompetition.org/docs/others/htbc_principles.pdf. Reflecting the state of the dialogue at the time, neither “transparency” or “disclosure” merited a mention in Wu’s influential, “Network Neutrality, Broadband Discrimination,” Journal of Telecommunications and High Technology Law. (2003): 141–179.
7. High Tech Broadband Coalition, 1.
8. Michael Powell, “Preserving Internet Freedom: Guiding Principles for the Industry,” (remarks given at the Silicon Flatirons Symposium on ‘The Digital Broadband Migration: Toward a Regulatory Regime for the Internet Age’, University of Colorado School of Law, Boulder, Colorado, February 8, 2004). Available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf.
9. Ibid., 6.
10. Ibid., 3.
11. Federal Communications Commission, Policy Statement, Docket No. 05–151, August 5, 2005. http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC–05–151A1.pdf.
12. Ibid., 3.
13. For helpful reviews, see Davina Sashkin, “Failure of Imagination: Why Inaction on Net Neutrality Regulation Will Result in a de Facto Regime Promoting Discrimination and Consumer Harm,” CommLaw Conspectus 15, no. 1 (Fall 2006): 261–309; and Douglas A. Hass, “The Never-Was-Neutral Net and Why Informed End Users Can End the Net Neutrality Debates,” Berkeley Technology Law Journal 22 no. 4 (Fall 2007): 1565–1635.
14. Ben Scott, Mark Cooper, and Jeannine Kenney, for Free Press et al., Why Consumers Demand Internet Freedom, May 2006. Available at: http://www.freepress.net/files/nn_fact_v_fiction_final.pdf (accessed August 8, 2012).
15. Ibid., 20.
16. Jerry Brito and Jerry Ellig, “A Tale of Two Commissions: Net Neutrality and Regulatory Analysis,” CommLaw Conspectus 16, no.1 (2007): 1–51.
17. Federal Communications Commission, Notice of Inquiry, In the Matter of Broadband Industry Practices, Docket No. 07–52, March 22, 2007. Available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC–07–31A1.pdf.
18. Ibid., 5.
19. AT&T, Inc., Comments of AT&T on Petitions of Free Press and Vuze, FCC Docket No. 07–52. February 13, 2008. http://apps.fcc.gov/ecfs/document/view?id=6519841106 (accessed August 8, 2012); and Verizon and Verizon Wireless, Comments of Verizon and Verizon Wireless, FCC Docket No. 07–52, February 13, 2008. http://apps.fcc.gov/ecfs/document/view?id=6519841190 (accessed August 8, 2012).
20. AT&T Comment of AT&T on Petitions of Free Press and Vuze, 4. Emphasis in original.
21. Ibid., 34.
22. Free Press, Reply Comments of Free Press et al., FCC Docket No. 05–72, February 28, 2008. Available at: http://apps.fcc.gov/ecfs/document/view?id=6519856406.
23. Ibid., 5.
24. Ibid., 6. Emphasis added.
25. Ibid., 5.
26. Comments of Free Press et al., FCC Docket No. 05–72, February 13, 2008. Available at: http://apps.fcc.gov/ecfs/document/view?id=6519841216.
27. Ibid., 59.
28. Ibid., 64.
29. Statement of Commissioner Jonathan S. Adelstein at En Banc hearing on Broadband Management Practices, Harvard Law School, Cambridge, Massachusetts, February 25, 2008, 3. Available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC–280441A1.pdf.
30. Statement of Commissioner Jonathan S. Adelstein at En Banc Hearing on Broadband Network Management Practices, Stanford Law School, Palo Alto, CA (April 17, 2008), 3. Available at: http://www.law.stanford.edu/publications/projects/lrps/pdf/wilsons–rp21.pdf.
31. Statement of Commissioner Deborah Taylor Tate at En Banc hearing on Broadband Management Practices, Stanford Law School, Palo Alto, CA, April 17, 2008, 2. Available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC–281629A1.pdf.
32. Opening Statement of Commissioner Robert M. McDowell (at Second Public En Banc hearing on Broadband Management Practices, Stanford Law School, Palo Alto, California, April 17, 2008), 8. Available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC–281646A1.pdf.
33. Federal Communications Commission, Memorandum Opinion and Order, Docket No. 07–52, August 1, 2008. Available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC–08–183A1.pdf.
34. Ibid., 31.
35. Ibid., 32.
36. Ibid., 34.
37. Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010).
38. See Free Press, Notice of Ex Parte Filing. Docket No. 07–52, October 24, 2008. Available at: http://apps.fcc.gov/ecfs/document/view?id=6520179100; and Comments of Free Press, FCC Docket No. 09–51, June 8, 2009. Available at: http://www.freepress.net/files/FP_National_broadband_plan.pdf.
39. Prepared Remarks of Chairman Julius Genachowski, “Preserving a Free and Open Internet: A Platform for Innovation, Opportunity, and Prosperity” (at The Brookings Institution, Washington, D.C., September 21, 2009), 6. http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC–293568A1.pdf (accessed August 8, 2012).
40. Ibid., 6.
41. Federal Communications Commission, Notice of Proposed Rulemaking, Docket No. 07–52, October 22, 2009, 45. Available at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC–09–93A1.pdf.
42. Ibid., 45.
43. Ibid., 45, 47.
44. Comments of Verizon and Verizon Wireless, FCC Docket No. 07–52, January 14, 2010. Available at: http://apps.fcc.gov/ecfs/document/view?id=7020378541.
45. Comments of Comcast Corporation, FCC Docket No. 07–52, January 14, 2010. Available at: http://apps.fcc.gov/ecfs/document/view?id=7020376090.
46. Comments of AT&T Inc., FCC Docket No. 07–52, January 14, 2010: http://apps.fcc.gov/ecfs/document/view?id=7020377279 (accessed August 8, 2012),
47. Comments of AT&T, Inc. (2010) 193.
48. Comments of Comcast.2010), 47.
49. Ibid. 50.
50. Patrick Schmidt, Lawyers and Regulation: The Politics of the Administrative Process (New York: Cambridge University Press, 2005); Cornelius M. Kerwin and Scott R. Furlong, Rulemaking: How Government Agencies Write Law and Make Policy, 4th ed. (Washington, D.C.: CQ Press, 2011).
51. Free Press, Comments of Free Press, FCC Docket No. 07–52, January 14, 2010. Available at: http://apps.fcc.gov/ecfs/document/view?id=7020378792; Free Press, Reply Comments of Free Press et al., Docket No. 07–52, April 26, 2010. Available at: http://apps.fcc.gov/ecfs/document/view?id=7020437471.
52. Ibid., 112–113.
53. Ibid., 120.
54. FCC, “Final Rule: Preserving the Open Internet,” Federal Register 76, no. 185 (September 23, 2011): 59192–59235; 59202–3. http://www.gpo.gov/fdsys/pkg/FR–2011–09–23/pdf/2011–24259.pdf (accessed August 13, 2012).
55. Ibid., 59203.
56. Ibid., 59204.
57. Chloe Albanesius, “Net Neutrality: The Heavy Hitters React,” PC Magazine, December 21, 2010.
58. Leslie Harris, President, Center for Democracy and Technology, quoted in Albanesius (2010).
59. Rep. Henry A. Waxman (D–CA), quoted in Albanesius (2010).
60. Gigi B. Sohn, President and co-founder, Public Knowledge, quoted in Albanesius (2010).
61. Alexander Reicher, “Redefining Net Neutrality after Comcast v. FCC," Berkeley Technology Law Journal 26, no. 1 (2011): 736.
62. Ibid., 740.
63. See also Hood, “Transparency in Historical Perspective,” 5–10.
64. Marc Allen Eisner, Regulatory Politics in Transition, 2nd edition (Baltimore, M.D.: Johns Hopkins University Press, 2000), 107.
65. Mark Fenster, “Seeing the State: Transparency as Metaphor,” Administrative Law Review 62, no. 3 (2010): 619.
66. Patrick Birkinshaw, “Transparency as a Human Right,” in Hood and Heald (2006); Archon Fung, Mary Graham, and David Weil, Full Disclosure: The Perils and Promise of Transparency (New York: Cambridge University Press, 2007), 24.
67. Elizabeth Fisher, “Transparency and Administrative Law: A Critical Evaluation,” Current Legal Problems 63 no.1 (2010): 275.
68. Christopher Hood, “Beyond Exchanging First Principles? Some Closing Comments,” in Transparency: The Key to Better Governance?, ed. Christopher Hood and David Heald (Oxford: Oxford University Press), 19.
69. Hood, “Beyond Exchanging First Principles,” 216.
70. Fenster, 619. See also Cass R. Sunstein, “Open Government Is Analytic Government and Vice-Versa,” Speech on the Occasion of the 30th Anniversary of the Regulatory Flexibility Act (September 21, 2010), http://www.whitehouse.gov/sites/default/files/omb/inforeg/speeches/Sunstein_Speech_2010–0921.pdf (accessed August 8, 2012).
71. Sunstein, 5.
72. Fisher, 278.
73. See Albanesius.
74. Fung, Graham, and Weil, 54.
75. Elizabeth Austin Bonner, “Network Neutrality Disclosures: More and Less Information,” I/S: A Journal of Law and Policy for the Information Society 8, no. 1 (2012): 197.
76. Omri Ben-Shahar and Carl E. Schneider, “The Failure of Mandated Disclosure,” University of Pennsylvania Law Review 159, no. 3 (February 2011): 647–749; Bonner, 197.
77. Adrian Henriques, Corporate Truth: The Limits to Transparency (Sterling, VA: Earthscan, 2008), 3.
78. For a general overview, see Keith Hawkins, Law as Last Resort: Prosecution Decision-Making in a Regulatory Agency (Oxford: Oxford University Press, 2002) and Cary Coglianese and Robert A. Kagan, ed., Regulation and Regulatory Processes (Burlington, VT: Ashgate, 2007).
79. Fung, Graham, and Weil, 66–67; Henriques, 91; Carolyn Ball, “What Is Transparency?” Public Integrity 11 no. 4 (October 2009): 293–307 .
80. Richard Briffault, “Campaign Finance Disclosure 2.0,” Election Law Journal 9 no. 4 (December 2010): 302.
81. See also Bonner, 207.
82. Taren Kingser and Patrick Schmidt, “Business in the Bulls-Eye? Target Corp. and the Limits of Campaign Finance Disclosure,” Election Law Journal 11 no. 1 (March 2012): 21–35.
83. Fung, Graham, and Weil, 110–111.
84. Doreen McBarnet, “Whiter Than White Collar Crime: Tax, Fraud Insurance and the Management of Stigma,” British Journal of Sociology 42 no. 3 (September 1991): 323–344; Patrick Schmidt, “Securities Lawyers and the Ethical Quagmires of Disclosure,” in Lawyers in Practice: Ethical Decision Making in Context, ed. Leslie Levin and Lynn Mather (Chicago: University of Chicago Press, 2012).
85. Ben-Shahar and Schneider, 749.
86. FCC, Final Rule, 59203.
87. Jonathan Zittrain, The Future of the Internet and How to Stop It (New Haven, C.T.: Yale University Press, 2008), 178–181.
88. FCC, Final Rule, 59203.