Community owned and operated wireless broadband is one of the fronts in a widespread battle over the future what Benkler (2006) considers the ‘institutional ecology’ of the Internet, or all of the social, political, and economic constitutive choices faced by society as it grapples with the implications of the network. In essence, the series of choices and decisions will determine the extent of agency and constraint, as described by Croteau, Hoynes, and Milan (2012), provided or imposed over various public and private stakeholders in institutional ecology of the network. The future of municipal wireless broadband represents one such choice faced by society with important implications for the future of network access.
According to the FCC (2011), “broadband is a foundation for economic growth, job creation, global competitiveness and a better way of life” (p. xi). Yet, the FCC (2011) also notes that more than 100 million Americans lack broadband access at home, roughly a third of the country. Benkler (2006) describes the problem as a last mile problem, meaning the last mile to the home is often the most expensive mile for infrastructure providers, particularly in rural areas, or urban areas that lack an economically attractive demographic for private industry. Moreover, Benkler (2006) advocates the buildout of municipal wireless broadband because of the positive externalities that municipalities have to gain, such as increased economic growth, improved healthcare, or lower unemployment. Indeed, Ferree (2011), investigated the impact of broadband adoption on employment rates and unemployment, finding that “broadband adoption has a positive impact on a county’s employment growth rate and a negative impact on a county’s unemployment rate” (p. 34). In addition, Kolko (2006) found significant evidence of a persistent digital divide, particularly in low-income urban areas. Moreover, Kolko’s (2006) study suggested strong evidence that increased urban broadband use translated to users seeking healthcare information online. Thus, municipal wireless broadband can be a particularly attractive solution for both urban and rural areas suffering from the digital divide, and can create positive externalities for municipalities seeking to improve their communities. What stands in the way?
In The National Broadband Plan, the FCC (2011) acknowledges the challenge in municipal broadband wireless deployments as a policy issue, resolving to “clarify the congressional mandate allowing state and local entities to provide broadband in their communities and do so in ways that use public resources more effectively” (p. xii). The congressional mandate referenced is none other than the Telecommunications Act of 1996, which states that “no State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (United States. Congress., 1996, Section 253). Despite the clarity of the law, municipalities seeking to implement municipal broadband networks, have faced intense political and legal challenges from telecommunications industry actors. The city of Abilene, Texas sought to implement a broadband network, however was prevented from doing so, given Southwestern Bell “persuaded the Texas legislature to pass a law that prohibited local governments from providing high-speed Internet access” (Benkler, 2006, p. 407). After appeal, the Federal Appeals Court in Washington D.C. ruled that ‘any’ did not mean municipalities and the city was prevented from moving forward (Benkler, 2006). This is but one example of the constraints faced by municipalities in seeking the derive the positive externalities of broadband by implementing their own network in the face of tension from corporate interests.
Of course, telecommunications corporations do not want to see the rise of municipal broadband because of the challenge to their oligopoly. Therefore, there are intense efforts at lobbying underway. Comcast Corporation, one of the largest broadband providers in the nation, is also one of the nations largest lobbying spenders, spending nearly $20M in 2011 alone (OpenSecrets.org, 2012). Moreover, Comcast sits on the Communications and Technology Board of the American Legislative Exchange Council, a conservative, free market bill mill that produces draft bills for federal and state legislators (sourcewatch.org, 2012). ALEC’s position on municipal broadband favors the telecommunication’s industry arguing that municipal broadband networks could negatively affect free markets and “erode consumer choice by making markets less attractive to competition because of the government’s expanded role as a service provider (ALEC, 2012, p. 1). However, Sadowski and De Pender (2009) found that the presence of municipal broadband actually increased competition. It appears to this author that the arguments against municipal broadband by telecommunications providers are more oriented towards preserving their interests rather than serving the public interest, which is exactly what a publicly-owned corporation should do. In fact, the reason the digital divide exists, is because telecommunications providers have serviced the segment of the population that can afford broadband, a behavior that is expected. However, their desire to constrain the agency of municipalities that are not being served is both self-serving and an obstruction of social and economic progress.
ALEC. (2012). Communications and Technology Retrieved August 12,, 2012, from http://www.alec.org/task-forces/telecommunications-and-information-technology/
Benkler, Y. (2006). The wealth of networks : how social production transforms markets and freedom. New Haven Conn.: Yale University Press.
Croteau, D., Hoynes, W., & Milan, S. (2012). Media/society : industries, images, and audiences (4th ed.). Thousand Oaks, Calif.: SAGE.
FCC. (2011). Connecting American: The National Broadband Plan. Washington DC: FCC Retrieved from http://download.broadband.gov/plan/national-broadband-plan.pdf.
Ferree, P. E. (2011). The effect of broadband Internet adoption on local labor markets. Master Public Policy in Public Policy, Georgetown University, Georgetown. Retrieved from https://repository.library.georgetown.edu/bitstream/handle/10822/553724/ferreePaul.pdf?sequence=1
Kolko, J. (2006). Why should cities provide wireless broadband access? Paper presented at the Telecommunications Policy Research Conference. Available at SSRN: http://ssrn.com/abstract=2104394
OpenSecrets.org. (2012). Lobbying Spending Database: Top Spenders Retrieved August 12,, 2012, from http://www.opensecrets.org/lobby/top.php?showYear=2011&indexType=s
Sadowski, B. M., & De Pender, M. (2009). Do municipal broadband networks foster network competition?: Case study evidence from the Netherlands. Paper presented at the Telecommunications Policy Research Conference. Available at SSRN: http://ssrn.com/abstract=1999842
sourcewatch.org. (2012). Comcast Corporation – SourceWatch Retrieved August 12,, 2012, from http://www.sourcewatch.org/index.php?title=Comcast
United States. Congress. (1996). Telecommunications Act of 1996. (0160534887). Washington DC: U.S. G.P.O. : For sale by the U.S. G.P.O., Supt. of Docs., Congressional Sales Office Retrieved from http://transition.fcc.gov/Reports/tcom1996.pdf.
In the last two decades, the world has arguably been in the midst of the greatest communications revolution since the development of the telegraph. Dubbed the ‘Internet revolution’, the new communications medium has fundamentally altered how people produce and consume information, knowledge, and culture. Like the telegraph before it, the Internet was made possible not only because of the technology, but also because of government intervention and regulatory choices that created and spurred investment in the new network. Major constitutive choices by the government included the original research and development at DARPA, the National Academy of Sciences investment in building the backbone, the insistence on open standards, and the Clinton administrations decision to privatize (Benkler, 2006). However, the phenomenal growth of the Internet has increased its salience to the national economy, national security, and trade relations. Increasingly, in an effort to gain more control over the network, national and international regulatory regimes are seeking to constrain the network, raise the costs of network participation, and control the medium, potentially limiting how information, knowledge, and culture are exchanged in a free society in the process (Benkler, 2006). Examples include the passage of DCMA, the failed SOPA/PIPA legislation, and the upcoming International Telecommunications Union conference seeking to introduce an international regulatory regime. This author is concerned that regulatory efforts seeking to introduce government gatekeepers into a decentralized medium may stifle innovation and have negative implications for freedom of expression and participation in the networked public sphere. The aim of this policy paper is to examine the range of policy approaches to regulation of the Internet. Section I of the paper will define the issues surrounding Internet regulation by analyzing three different policy perspectives. Section II will analyze various policy positions as a coherent whole, while section III will recommend a policy position that deals with the legitimate social and economic concerns of Internet regulation, while being supportive of a digital ecology that encourages innovation and freedom of expression in the networked public sphere.
I. Defining the Issue
Government regulation is critical to the protection of the public interest (Shafritz, Russell, & Borick, 2011). In the case of the Internet, the public interest can broadly be conceived in social, political, and economic terms to include users of the Internet, commercial entities whose businesses are either enabled or threatened by the Internet, and the government itself, that must consider Internet regulation in national security, foreign policy, and international trade terms. The basic contours that shape the Internet regulation debate can be defined broadly as freedom versus constraint in several important dimensions, including b) freedom of expression versus copyright protection, b) innovation versus oligopoly, and c) borderless Internet versus territorial sovereignty. Each dimension has particular arguments in the freedom versus constraint debate, and specific legislative and regulatory choices that will shape the future of communication.
Freedom of Expression Versus Copyright Protection
The Internet and computing technologies have dramatically expanded the ability of traditional consumers of mass media content to become content producers, by dramatically lowering the costs of creation and distribution to nearly zero (Shirky, 2009). As such, a variety of new forms of information, knowledge, and culture have arisen including blogs, mashups, viral videos, animutations, and more serious work such as open-source software development and Internet documentaries, most which rely on individual creative expression in non-market models and often build on or use other works to create something entirely new. While the Internet has enabled consumers to become producers, government regulation is beginning to place constraints on would be consumer/producers. In October of 1998, President Clinton signed the Digital Millennium Copyright Act into law, a constitutive choice “to tilt the institutional ecology in favor of industrial production and distribution of cultural packaged goods, at the expense of commons-based relations of sharing information, knowledge, and culture” (Benkler, 2006, p. 418). Critical elements of the law include the retroactive extension of copyright protection to material already in the public domain for the sake of international copyright harmonization, and anti-circumvention provisions that outlaw technologies that circumvent copyright protection measures put into place by copyright owners (U.S. Copyright Office, 1998). These measures were put into place based in the idea that strengthening copyright protection in the digital realm would spur the release of content onto the Internet based on the protections afforded by the law to the media and entertainment industry, however the law also attempts to influence the non-commercial conduct of users (Sparks, 2001).
In an analysis of an early DCMA case, Universal City Studios vs. 2600.com, Sparks (2001) questions the implications of the new copyright law on freedom of expression, finding that while the DCMA will limit digital copyright infringement, it also has the ability to interfere with the exchange of content over the Internet and the free expression of computer scientists seeking to advance the state of the art. The case in question revolves around the release and distribution of DeCSS software on the hacking website 2600.com. At issue, is whether the reverse engineering, development, and distribution of software to make encrypted DVDs playable on open source Linux software was in violation of the anti-circumvention provisions of DCMA (Sparks, 2001). The court ruled the DeCSS was “not subject to constitutional protection sufficient to exempt it from regulation under the DCMA” (Sparks, 2001, p. 8), nor was the DCMA consider too broad, rather it was narrow in terms of the harm it sought to prevent.
However, Sparks (2001) argues that the court’s interpretation of DCMA is overly broad, given “that it prohibits programming with substantial non-infringing uses and purely academic exchanges on encryption/decryption that do not actually infringe on protected copyrights”, (p. 18) in absence of damages, and merely on the speculation of potential harm. In this sense, the law is seeking to prevent the development of technology that would allow infringement, rather than enforcing infringement when it occurs. Moreover, Sparks (2001) warns that DCMA “may have the unintended effect of limiting the availability of the means of protected free expression” (p. 19).
The implications of Spark’s (2001) analysis suggest serious potential harm to free expression on the Internet. First, any technology development that deals with encryption or decryption technology on the Internet, by non-market or market actors could be subject to DCMA enforcement depending on interpretation, irrespective of whether actual infringement or harm occurs. Second, the government is attempting to regulate barriers to technical progress in Luddite fashion, in an industry notable for a rapid rate of change. Finally, the law favors market actors over non-market actors, the media and entertainment industry over the software industry, and media oligopolies with aging business models over innovation in the media and entertainment business.
Innovation Versus Oligopoly
Despite the intention of DCMA to constrain innovation in order to protect copyright works, the genie was already out of the bottle. Where DCMA sought to prevent the reverse engineering of DRM encryption to protect the DVD market, the development and rapid growth of peer-to-peer file sharing technology threatened the business model of oligopolistic media firms in an entirely new way. The basic contention of the media industry is that P2P file sharing is akin to piracy, and is therefore illegal and immoral, despite the legitimate use for file sharing in other contexts (Benkler, 2006). As such, the industry has mounted fierce legal attacks on early file sharing technologies wherever a central point existed, such as with Napster’s architecture, resulting in Napster’s eventual demise. However, P2P technologies evolved into architectures that lack any point of centrality, in a completely distributed architecture, resulting in phenomenal growth of consumer/producer usage, estimated as much as 450 million downloads every week (Currah, 2006).
In an effort to understand the forces at work in the brewing battle over P2P technology, Currah (2006) interviewed hundreds of studio executives across the six major oligopolistic Hollywood studios, finding the firms are seeking to protect their business model from decentralized P2P technology, rather than adopting the technology over fears of loss of control. Instead, Hollywood firms are investing in centralized server-client distribution with greater control and higher cost models in order to preserve control over distribution and protect the linear, time-based distribution model of studios to assure that digital content delivery does not interfere with the profitable DVD market (Currah, 2006). The prevailing attitude among studio executives is captured by the response of one of the studio presidents interviewed by Currah (2006):
As executives working for large public companies, we have a fiduciary responsibility to our shareholders to do two things. First, protect our assets from piracy and offer legal alternatives to piracy. But this is offset by a second and vital factor – we must maximize the value of our products in existing markets and minimize our exposure to risk, like investing in an unproven market such as the Internet, which could easily cannibalize our growth if mismanaged. (p. 459)
Currah (2006) attributes the counterintuitive behavior to the nature of market incumbents versus niche competitors, arguing that niche competitors are attracted to emerging markets given the opportunities for growth in unseating competitors, while incumbents are incented to protect and grow large markets in a risk averse manner. Tushman and Anderson (2004) describe these behaviors in terms of the processes of exploration and exploitation, where incumbents have little incentive to explore new markets, rather when emerging markets mature, incumbents can simply consolidate the market given their broad industry power and control of assets.
The implications of Currah’s (2006) study is threefold. First, oligopolistic firms are incented to exploit existing markets and suppress innovation. Second, P2P technology used in legal form has the potential to reduce the high costs of media distribution to practically zero, potentially forming the basis for a new business model with lower costs and greater reach. However, while most studios acknowledge the potential, none appear willing to bear the risk of innovation (Currah, 2006). Third, the battle between media companies and P2P technologies is merely the first foray into a broader need to insert points of control into the decentralized network medium. One aspect of control is the DCMA regulation that extended copyright protection and attempts to protect DRM technology, providing ‘unprecedented power’ to oligopolistic firms. More concerning is that battle lines are drawn firmly with the media oligopoly and the state on one side and consumers/producers on the other, centering “on how we create, fund, use, own and share creative works in a digital and networked economy” (Currah, 2006, p. 463). Put in simpler terms, it appears that media companies and the state might prefer active consumer/producer participants revert back to passive consumers.
Borderless Internet Versus Territorial Sovereignty
In the early days of the Internet, many considered the Internet a virtual world, wholly separate from the physical world, and as such predicted international regulation might be difficult if not impossible (Benkler, 2006). The reasoning was twofold. First, the Internet is essentially borderless, insofar as information can appear simultaneously in multiple jurisdictions (Bauml, 2011). Second, the Internet is decentralized, lacking jurisdictional choke points, rendering the question of jurisdiction difficult to address (Benkler, 2006). However, early predictions about national government’s ability to regulate the Internet have proven to be overblown (Goldsmith, 2000). Instead, national governments are legitimately able to introduce regulation of the Internet in their jurisdictions, however not without challenges.
Goldsmith’s (2000) analysis attempts to put the problem into perspective by analyzing the conflict-of-law problems inherent with unilateral regulation, arguing that unilateral regulation, while not desirable, is equally an effective vehicle for enforcing the norms of sovereign territories. Goldsmith (2000) argues that regulation is legitimate insofar as “international law permits a nation to regulate the harmful local effects of foreign conduct” (p. 138). Moreover, Goldsmith (2000) acknowledges that while regulation of the Internet is imperfect, it remains an effective form of control, particularly through efforts to regulate the demand side of Internet participation.
Furthermore, in making the case that the impact of unilateral regulation is overstated, Goldsmith (2000) suggests that because most Internet content providers will necessarily lie outside the enforcement jurisdiction of most national regulation, the ability of many regulatory bodies will be hampered in the enforcement of local laws. Therefore, “the entities potentially subject to multiple Internet regulations are users, systems operators (especially Internet access providers) and transaction facilitators (such as banks and credit card companies) with a presence in more than one regulating jurisdiction” (Goldsmith, 2000, p. 140). It follows that national governments have an ability to regulate the activities of most multijurisdictional commercial firms, while perhaps having a minimal effect on content providers without a presence in the local jurisdiction.
However, while Goldsmith (2000) addresses the legality of unilateral regulation, the author fails to address the potential social and political implications. This author agrees that the basic arguments on legitimacy and efficacy are sound. However, the author concedes the primary way that a government regulates an activity is “by raising the activity’s costs in a manner that achieves desired ends” (Goldsmith, 2000, p. 138). Moreover, Goldsmith (2000) argues further, that content providers are responsible for assuring their content does not cause harm in other nations, and should insert geographic coding, another way of raising costs. Of course, costs are the heart of the matter. The Internet has dramatically lowered the costs of producing information, knowledge, and culture, lowering barriers to participate in the medium (Benkler, 2006). Raising the costs of participation is one way that governments and commercial entities can attempt to shape the Internet into a controlled mass medium where only well-funded entities can participate.
Indeed, higher costs, in the form of taxes is at issue in the upcoming International Telecommunication Union meeting in Dubai, where a draft proposal of new international telecommunications rules include a clause that allow national authorities the right to tax all incoming and outgoing Internet traffic (International Telecommunications Union, 2012). The U.S. government is unanimously opposed to the draft proposal, arguing “the Internet does not need new international regulations… such regulations could be devastating to Internet freedom and economic development” (Essers, 2012, p. 1). Of course, the U.S. government may not be exclusively concerned with Internet freedom as much as the economic impact of such regulation. The effect of national government taxation would be to exact revenues from Internet content providers like Google or Facebook for traffic associated with their page requests (Pfanner, 2012). The Internet’s growth in economic, political, and social importance coupled with the global nature of the Internet will likely make international regulation a fact of life in one form or another. Furthermore, the costs of such regulation may impact users beyond the borders of the national regulatory regime implementing the regulations, and have a broad impact on the participatory nature of the Internet.
II. Analyzing the Issue
U.S. and international society face unprecedented constitutive choices regarding the future of arguably, the most important medium in human history, “a new information environment, one in which individuals are free to take a more active role than was possible in the industrial information economy of the twentieth century” (Benkler, 2006, p. 2). Furthermore, Benkler (2006) describes this moment in history as one of both opportunity and challenge in a period of choices regarding the ‘institutional ecology’ of the digital environment, an ecology made of up the laws and regulations that will define the degree to which individuals are able to participate. The opportunity, as Benkler (2006) defines it, is to shape the ecology in such a way as to safeguard the individual freedom, use the Internet as a platform for improved democratic participation, and “achieve improvements in human development everywhere” (p. 2). In the broadest sense, the Internet is a powerful force for the advancement of liberal ideals. Not liberal in the sense of alignment with a political party, rather liberal as befitting a free person.
Therefore, the constitutive choices faced in Internet regulation policy remain the degree to which constraint is chosen over freedom across the myriad issues at play. At question is how much constraint is required to deal with legitimate political, economic, and social concerns, while protecting the freedom needed to encourage continued innovation and freedom of expression in the networked public sphere. Therefore, the lens through which to evaluate policy options is the balance between freedom and constraint. Of course, a key question is how to evaluate the balance between freedom and constraint? Given the networked information economy has threatened the control of dominant incumbents of the mass media era (Benkler, 2006), evaluating the degree to which a policy or regulation seeks to introduce controls that support powerful incumbents over rights that protect new market entrants or individuals can illuminate whether the policy options favors freedom or constraint.
Freedom Versus Constraint in Regulatory Examples
As discussed previously, the DCMA extended copyright protection for works already in the public domain in the interest of international harmonization (Sparks, 2001), a protection that extended the rights of media firms and limited the rights of individuals seeking to use those works in the public sphere. Moreover, DCMA limited the exchange of information deemed as potentially harmful to media companies by making copyright infringement possible, despite potentially legal uses of the information, and the fact that there was no evidence of actual infringement (Sparks, 2001). Both described elements of DCMA enhanced the protections afforded market incumbents at the expense of individuals. Some might argue that the public good was achieved through DCMA, by protecting the media industry DVD distribution model and the rights to monetize copyright works; a compelling argument. However copyright and patent law exists to encourage contributions to the public good by allowing a creator to monetize their investment for a limited period of time to encourage economic growth and innovation. In this situation, the law was used to allow incumbents to cling to an aging business model, limiting the rights of innovators, like P2P developers, in the networked information economy.
Another example worthy of examination was the recent attempt to pass the controversial Stop Online Piracy Act and its companion bill in the U.S. Senate, the Protect IP Act. Both sought to prevent infringing activity perceived to harm U.S. economic interests by enabling broad enforcement measures (Band, 2012). The legislation was intended to stop “three kinds of infringing activity: copyright infringement, counterfeiting, and circumvention of technological protection measures” (Band, 2012, p. 3). The main controversies surrounding SOPA and PIPA had to do with the enforcement measures that may have been overly broad. The law would require intermediaries such as Internet service providers, payment systems, search engines, and advertising networks to block access to alleged infringing websites within five days of receiving notification of infringing activity (Band, 2012). The problems raised by the law include issues of due process, the use of controversial IP blocking techniques linked with censorship in authoritarian regimes, the potential of the law to negatively impact legitimate websites, and the concern that the law would create an incentive for commercial Internet business to monitor usage, perhaps invading privacy in the process (Band, 2012).
The controversial law was supported most notably by the pharmaceuticals industry, and the entertainment industry (Band, 2012), industries with a high degree of market concentration concerned over protecting their dominant position and business models. Certainly, infringing activity is an important economic concern of the U.S. government, however the legislation as designed did not seek to achieve an appropriate balance between copyright protection and freedom of expression and provided overly broad power to copyright owners. Balance, of course, has always been the intent of copyright law, a “balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement” (“Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd,” 2005). SOPA and PIPA appeared to favor enhancing the protections of a few industries at the expense of freedom of expression and innovation.
A final example is the proposed ITU clauses concerning the right of national governments to tax inbound and outbound network traffic. As previously discussed, taxation raises the costs of Internet use and can lead to harmful effects for Internet users by raising the barriers to participation on the Internet. However, the relationships between freedom and constraint are less clear as the context shifts to national actors on the international stage. Some consider the Internet to be a U.S. dominated medium that is used to further U.S. foreign policy interests in the Middle East and elsewhere. For example, the U.S. State Departments Internet Freedom project provides circumvention and anti-censorship technology to activists inside repressive regimes (U.S. Department of State, 2012). Moreover, the concentrated U.S. power over the medium allows the U.S. to dominate Internet governance and associated trade policies (Revie, 2012). It is little wonder that foreign governments are seeking to attenuate U.S. Internet power through the use of the ITU. In one sense, the U.S. government is seeking to strengthen freedom in authoritarian regimes, while foreign governments are seeking to constrain U.S. Internet hegemony. In another sense, the U.S. could be thought of as attempting to constrain foreign governments freedom of self-determination through the promotion of liberal ideals. In any event, the ITU example differs significantly from DCMA and SOPA insofar as the U.S. can be considered a largely unchallenged incumbent, and therefore is not seeking to introduce legislation in either the dimension of freedom or constraint, rather is seeking to avoid international constraints.
The predominant character of the Internet regulation reviewed in this analysis is oriented towards constraining the interests of individual Internet users or innovators to protect powerful incumbents. There are other policy options that are oriented towards enabling the rights of society to participate in the networked information economy, such as the right to Internet access, network neutrality rules, or the right to develop municipal wireless networks. However, the U.S. has legislated none of these rights, although the FCC has implemented some network neutrality rules. However, those rulings are being challenged in court.
To evaluate the argument of policies that favor constitutive choices that support Internet freedom or regulatory constraints, this author placed the respective policy positions in a SWOT chart to contrast the social benefits of both. Figure 1 highlights the analysis for regulatory constraints oriented policy options:
Figure 1. SWOT analysis of regulatory constraints oriented policy options.
Whereas, Figure 2 highlights the analysis for policies that enhance legal freedoms:
Figure 2. Policy options oriented to additional legal freedoms.
These options are not meant to suggest either-or solutions, rather to contrast the differences in the range of options. Legislation like DCMA or SOPA do little to encourage innovation, rather they protect the status quo in industries that could benefit from competition and change. Although, regulatory constraints on market and non-market activities could significantly reduce infringing activity and encourage market actors to invest more in creative endeavors. Moreover, regulatory constraints could improve the economic growth of industries that rely on copyright protection. Finally, regulatory constraints that limit freedom of expression could place the U.S. on the same moral low ground as more repressive regimes.
In contrast, policies that enhance Internet freedom encourage innovation and advance the cause of technical progress. While some industries may suffer from ‘creative destruction’, other industries will benefit from increased participation on the Internet. Moreover, limited regulatory protections could create a more level playing field consistent with free market principles. Most importantly, enhanced freedoms could create a more participatory public sphere enhancing the U.S. democratic experience and commensurately increasing the stature of liberal ideals on the global stage.
III. Policy Position and Recommendation
The overriding policy goal of Internet regulation and legislation should be to shape the institutional ecology to stimulate economic growth at a macro-level rather than protect any particular industry, while improving access, encouraging participation, and safeguarding individual freedom.
With the basis for a policy position set, this author will define the specific policy proposals, provide support for each, and outline both the benefits and the drawbacks.
Policy Position 1: Revise DCMA
DCMA has many positive elements, including safe harbor provisions for Internet service providers and Internet content providers. However, the anti-circumvention measure goes too far in attempting to limit technical innovation, suppress legitimate free speech, and provides protection for incumbent industry, that allows them to cling to a business model with decreasing consumer relevance. For this reason, this author recommends revising DCMA to strike the anti-circumvention measure.
The consequences of such action would be to force the media and entertainment industry to innovate, either by keeping ahead of technology, or developing new business models that reflect changing consumer preferences for content delivery. Moreover, would-be innovators could advance the state of the art without the fear of criminal penalties because of how their innovation might be used by others. The drawback of striking the anti-circumvention could be that DeCSS technology could be made available to the public and actual infringement may occur. However, the media and entertainment industry could adopt the RIAA’s legal tactics and bring suit against those that infringe the most.
Policy Position 2: FCC Ruling to Prevent Intermedia Concentration of Content Providers and Network Providers on the Internet
Media concentration can sometimes be cause for concern, both in the general sense, as well as in the specific instances where Internet service providers acquire content. In such cases, like with the Comcast acquisition on NBC Universal, there is evidence that the network provider may choose to throttle traffic or guide traffic to their own content, reducing choice and diversity for consumers (Benkler, 2006; Lessig, 2001). The FCC should largely prevent the media concentration of these types of firms or provide extensive oversight to assure that network providers to no hamper diversity and choice through network management techniques or pricing bundles. Moreover, prevention is favored over oversight due to high costs and the low efficacy of independent regulatory bodies. The drawbacks are likely few, given most mergers of this type have typically failed over the long term, AOL/Time Warner being the most notable example.
Policy Position 3: Legalize and Create Tax Incentives for Municipal Broadband
Many municipalities, particularly in rural areas, are seeking to deploy municipality wide broadband wireless networks to stimulate economic growth and attract residents. These efforts have to date been interpreted as illegal in suits brought by traditional media companies or their proxies (Benkler, 2006). Municipal broadband efforts can go a long way towards helping to solve the last mile problem, where 10% of the country still does not have access to broadband. Moreover, broadband can help stimulate economic growth by connecting a community to the larger world, allowing them to take advantage of the strength of weak ties (Granovetter, 1973). Properly channeled, a broadband network coupled with community investment can reinvigorate communities and stimulate economic growth (Intelligent Community Forum, 2012). There is little need to protect the domain of telecommunications providers, particularly when there appears to be little interest or profitability on their part to in build the last mile.
Policy Position 4: Prevent International Efforts to Tax National Incoming and Outgoing Traffic
The U.S. should exert all of its political and economic force to prevent the ratification of draft ITU clauses that allow national governments to tax incoming and outgoing traffic and raise the Internet participation costs for everyone. First, the idea that Internet content providers should pay national taxes for requests for information from citizens of foreign governments is beyond pale. The idea would raise the costs incurred by Internet content providers, which would have to be passed along to consumers, irrespective of the jurisdiction where they reside. Moreover, low barriers to participation is the reason that so many users of the Internet are able to participate and exercise the right of self-determination, despite the lack of economic power. The Arab Spring is a great example of such phenomenon. Repressive regimes can use taxation as a tool to assure that few of their citizens can participate in the Internet, eroding international freedom and limiting the power of the Internet to improve human development globally.
These policies will help to restore the balance between freedom and constraint and level the playing field to assure that Internet freedom remains the right of a free society and free peoples the world over. Moreover, adequate copyright protections remain in place, without stifling innovation. However, traditional industries will be forced to evolve the Internet, rather than attempt to impede technical and social progress by virtue of their market power. In addition, these policies can help prevent the potential negative implications of greater media concentration by keeping production and distribution separate and distinct. Ultimately, these policies may help to keep the costs of participating in the creation and exchange of information, knowledge, and culture low, enabling a more participatory democratic society. While not comprehensive, these policies can help level the playing field between freedom and constraint by creating the ecological conditions for continued innovation and economic growth from the Internet platform.
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Revie, R. (2012, July 11, 2012). The Tangled Web of ‘Internet Freedom’ Retrieved August 31,, 2012, from http://www.worldpolicy.org/blog/2012/07/11/tangled-web-internet-freedom
Shafritz, J. M., Russell, E. W., & Borick, C. P. (2011). Introducing public administration (7th ed.). Boston: Longman.
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No scandal in recent memory highlights government regulatory ineptitude quite as clearly as the Security and Exchange Commission’s failure to uncover Bernie Madoff’s Ponzi scheme, a scheme that bilked investors “of an estimated $65 billion” (Shafritz, Russell, & Borick, 2011, p. 362). Madoff, a wealthy, prominent, industry insider, perpetrated his scheme on unsuspecting investors beginning as early as 1992 and the SEC had received and investigated no less than six complaints between 1992 and 2008, when Madoff finally confessed (U.S. Securities and Exchange Commission Office of Investigation, 2009). Why was the SEC so slow to respond to tips and complaints about Madoff? More importantly, what institutional changes have been implemented at the SEC to assure that the regulatory agency is a more effective regulatory body in the aftermath of Madoff? This author finds that while the SEC’s internal investigation has revealed some of the systematic causes of their failure, and has worked to address them, the most notable and enduring failure of the SEC was a leadership failure that remains unaddressed, prompting a call for SEC leaders to adopt the principles of authentic leadership to develop an ethical organizational identity.
On Causes of the SEC Failure
In the wake of the SEC’s failure to catch Madoff, despite the numerous complaints, the SEC conducted an internal investigation to determine why they failed to uncover Madoff’s Ponzi scheme during the course of their many investigations (Wingfield, 2009). The SEC (2009) report found that a) investigations and examinations went uncompleted, b) the agency failed to collaborate both internally or externally, c) the agency lacked resources, d) the agency lacked needed expertise, and e) the agency did not have needed process, systems, or controls. Equally important, the agency found a) no conflict of interest or impropriety in their handling of the case, and b) no attempts by senior SEC officials to influence the investigation (U.S. Securities and Exchange Commission Office of Investigation, 2009). In addition, the report is notable for the focus on the specific SEC transactions with Madoff over the years, rather than investigation of systemic problems within the agency that contributed to the failures. As a result, the SEC (2009) report does not address the role of organizational processes, leadership, or culture, in the failure to uncover Madoff’s scheme, rather it ends suggesting employees involved in the failure should be put on a performance plan.
In light of the SEC’s failure to identify systemic issues, it is worthwhile to review outside criticism of the notable SEC failure. For example, Shafritz, et al. (2011) suggest the SEC was subject to the phenomenon of ‘agency capture’ whereby a government agency is overly influenced by industry economic interests. Galbraith (2009) describes the problem endemic to most government regulatory agencies thus:
Regulatory bodies, like the people who comprise them, have a marked lifecycle. In youth they are vigorous, aggressive, evangelical, and even intolerant. Later they mellow, and in old age – after a matter of ten to fifteen years—they become, with some exceptions, either an arm of the industry they are regulating, or senile. (p. 166)
In the case of the SEC’s examination of Madoff, the mid-level bureaucrats that examined Madoff appeared overly cautious given Madoff’s stature as a giant in the investment world (Shafritz, et al., 2011). In particular, because the career path of many in the SEC is in the very firms they are charged with regulating, the agency is susceptible to the ‘revolving door’ phenomenon (Barkow, 2010). Agency capture, therefore, can be considered an individual choice of self-interest over agency purpose. What, if anything, has the SEC done in the aftermath of their public failure, to reform the agency, and how will the agency address agency capture?
Because of the intense public scrutiny following the SEC’s failure to prevent Madoff’s Ponzi scheme, the agency has published a list of reforms they have undertaken. While the list of reforms is fairly comprehensive, this author will seek to outline reforms pertinent to the discussion in this paper. First, the SEC (2012) reorganized their enforcement division and added industry experts to their staff. Second, the SEC centralized the tracking and distribution of tips and complaints into a computer database (Lynch & Goldstein, 2011; U.S. Securities and Exchange Commission, 2012). Third, the SEC (2012) has put internal process controls and a governance structure in place to assure appropriate follow-up and disposition on examinations. Although, given the tactical nature of the reforms, this author thinks it likely that additional oversight failures are likely, primarily because organizational culture and leadership issues remain.
The Need for Authentic Leadership
The SEC’s failure, in some respects can be considered a failure of leadership and culture. Indeed, if you considered their failure to detect Madoff’s scheme in light of the larger regulatory responsibilities of the agency, the Madoff failure was one notable failure across two decades of similar failures. For instance, the SEC failed to detect the widespread corporate fraud of the late 1990’s as corporate giants like Enron, WorldCom, Adelphia, and Tyco bilked investors and employees out of millions. In addition, the SEC failed to adopt a regulatory position on mortgage lending practices that led to the subprime mortgage crisis. When one considers the regulatory lapses of the SEC (2012) compared with their avowed mission “to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation” (p. 1), one can likely conclude the agency is in dire need of change, but change to what?
Change is, by its very nature, a leadership problem. As a regulatory agency that has grown too ‘chummy’ with the industry as a whole, where self-interest appears to override agency purpose, the SEC needs to transform rather than simply reform. Some argue that the institutional design is flawed, and the agency requires a new design to prevent agency capture (Barkow, 2010). While the existing reforms and new institutional design are important, equally important is a leadership transformation. Some would argue that the SEC needs a ‘transformational’ leader to guide them into the future. However, this author would argue that an agency-wide focus on authentic leadership development is more appropriate, because transformational leadership lacks an ethical or moral dimension.
Authentic leadership theory was born out of the corporate scandals of the late 1990s (George, 2006), however the importance of authenticity was described by Lord Polonius in Shakespeare’s Hamlet, “This above all: to thine ownself be true, And it must follow, as the night the day, Thou canst not then be false to any man” (Shakespeare, 1986, p. 676). “Though, the working definition of an authentic leader is true to ones self, there is an expectation that being true to one’s self is also upheld by the overarching morality of society” (Tonkin, 2010). It is in this context, that authentic leadership applies to the problems of ethics and morality in an organization. Moreover, an authentic leader has the opportunity to drive the ethical identity of an organization through a written code of ethics and authentic leadership behaviors (Verbos, Gerard, Forshey, Harding, & Miller, 2007). How then, does one tell the difference between self-interested leaders and authentic leaders?
A Tale of Two Leaders
This author will describe his experience with two organizational leaders to illustrate an example of leadership authenticity. The first leader to discuss is Jon Doe. Jon’s day-to-day leadership was centered on the notion of crisis, real or manufactured, given both scenarios were equally useful to drive change. Insofar as Jon sought to transform the company, using crisis as an enabler, characterized Jon as a transformational leader. Moreover, Jon’s focus on transformation gave the appearance of the consummate executive, working towards the greater good of the company. However, over time, Jon would often switch positions on key topics regarding organizational change, depending on the power of the position relative to other positions. In addition, Jon would reprioritize organizational resources depending on the crisis of the moment, effectively abandoning earlier crisis, irrespective of the state of resolution. This author’s opinion is that Jon was an opportunist that was expert at aligning his self-interest with organizational interest, rather than an authentic leader.
Contrasted with Jon Doe is Jane Doe. Jane was an organizational leader that was several management levels below Jon. Jane worked tirelessly to craft the organizational mission, vision, and values with the team. In addition, Jane aligned word and deed, being the first to live organizational values. In this respect, Jane was truly an authentic leader. As a result, Jane’s organization was poised to make sound, ethical, business decisions even in ambiguous situations. Moreover, Jane’s team had greater organizational commitment and job satisfaction than Jon’s team. In essence, Jane was able to interweave the organization’s business identity and ethical identity with the organizational purpose.
The differences between these two examples highlight the importance of understanding one’s motivation. In dramaturgical terms, an actor or actress seeks to understand a character’s ‘through line’, the overriding motivation that drives the character’s behavior and decision-making. A leader’s understanding of their own ‘through line’ can serve to define organizational values and ethical identity, a situation desperately need at the SEC.
The SEC learned much from their self-examination of the failures that led to the biggest regulatory miss of the last twenty years. However, like any self-examination, there are difficult to reach places and blind spots that led the SEC to reform rather than transform. Most notably, the SEC self-examination did not recognize the contributing and enduring role played by organizational leadership and culture. It remains to be seen whether SEC reforms will have their intended effects, however, without the development of an authentic leadership capability within the agency, and the resulting ethical organizational identity, it appears likely that the SEC will remain an agency captured by the interests of the financial industry, rather than the interests of the public.
Barkow, R. (2010). Insulating agencies: Avoiding capture through institutional design. Texas Law Review, 89(1), 15-79.
Commission, U. S. S. a. E. (2012, July 30, 2012). The Investor’s Advocate: How the SEC Protects Investors, Maintains Market Integrity, and Facilitates Capital Formation Retrieved August 19, , 2012, from http://www.sec.gov/about/whatwedo.shtml
Galbraith, J. K. (2009). The great crash, 1929. Boston: Houghton Mifflin Harcourt.
George, B. (2006). Truly authentic leadership. [Article]. U.S. News & World Report, 141(16), 52.
Lynch, S. N., & Goldstein, M. (2011, July 27, 2011). Exclusive: SEC builds new tips machine to catch the next Madoff Retrieved August 19, 2012, from http://www.reuters.com/article/2011/07/27/us-sec-investigations-idUSTRE76Q2NY20110727
Shafritz, J. M., Russell, E. W., & Borick, C. P. (2011). Introducing public administration (7th ed.). Boston: Longman.
Shakespeare, W. (1986). William Shakespeare, the complete works (Original-spelling ed.). Oxford Oxfordshire ; New York: Clarendon Press ; Oxford University Press.
Tonkin, T. (2010). Authentic leadership: A literature review. Research Paper. School of Global Leadership and Entrepreneurship. Regent University. Virginia Beach.
U.S. Securities and Exchange Commission. (2012, April 4, 2012). The Securities and Exchange Commission Post-Madoff Reforms Retrieved August 19,, 2012, from http://www.sec.gov/spotlight/secpostmadoffreforms.htm
U.S. Securities and Exchange Commission Office of Investigation. (2009). Investigation of Failure of the SEC to Uncover Bernard Madoff’s Ponzi Scheme – Public Version – U.S. Securities and Exchange Commission Office of Investigation, Retrieved from http://www.sec.gov/news/studies/2009/oig-509.pdf.
Verbos, A. K., Gerard, J. A., Forshey, P. R., Harding, C. S., & Miller, J. S. (2007). The positive ethical organization: Enacting a living code of ethics and ethical organizational identity. Journal of Business Ethics, 76(1), 17-33.
Wingfield, B. (2009, September 2, 2009). New Madoff Report Blasts SEC. The Regulators Retrieved August 19, 2012, 2012, from http://www.forbes.com/2009/09/02/bernard-madoff-sec-business-washington-madoff.html
Defining moments are ridiculously difficult to predict. For example, President Bush attempted to use ‘defining moment’ rhetoric to pressure the U.N. Security Council to pass resolution 1441, calling for Iraq to disarm what later was found to be a non-existent weapons program (CNN, 2003). Later, President Bush attempted to define a ‘defining moment’ for the Iraqi government in their push to rid Basra of militants (Myers, 2008). Of course, the attempts to define the defining moments of a presidency occur on both sides of the aisle. After the killing of Bin Laden, Democrats rushed to a ‘defining moment’ narrative for Obama’s presidency (Warren, 2011). Despite the efforts of political public relations machines, defining moments remain elusive, precisely because they require the passage of time and the resulting perspective that goes with it, and because they must hold symbolic meaning for larger historical narratives. However, most public relations functions continue to use their skills in an attempt to define moments for those they represent, based on the antiquated idea that media has powerful effects on a mass audience, but many do not consider the meaning-making capability of individual audience members.
On May 1, 2003, the American public was greeted with the sight of President Bush, heroically landing on the U.S.S. Abraham Lincoln, fully bedecked in a flight suit, where hours later, under a banner reading ‘Mission Accomplished’, President Bush would announce the end of major combat operations in Iraq (Bash, 2003). While President Bush choose his words very carefully, the banner betrayed the government’s interest in staging a ‘defining moment’ in the U.S. public sphere. Of course, the pseudo-event did become a defining moment, just not in the way it was intended. Rather than ‘mission-accomplished’ becoming a symbol of American military dominance and a capable administration, it became a symbol of an administration out of touch with the reality on the ground in Iraq, and as such, cast doubts on the administration’s ability to win the peace.
Bush staffer’s would later argue that message was mangled, that the press got the meaning wrong, and that the banner was not intended to convey the end of the war, rather the end of a successful deployment of the U.S.S. Abraham Lincoln (Bradley, 2011). However, their objections ring hollow, and the event serves to illustrate a public relations function that continues to operate using the notion of the media as “a great keyboard on which the government can play” (Time, 1933). Shafritz, Russell, and Borick (2011) support the idea that governments continue to use the mass media as a device to influence the public sphere. However, the notion of a mass society easily influenced by a powerful mass media, has largely been refuted in research on media effects (McQuail, 2010). An alternative view of the communication process, is the reception model, which has focused communication research on the role of the individual in the social construction of meaning (McQuail, 2010).
President Bush and the communications staff of the Bush administration sought to shape public perception of the war effort by suggesting that combat operations were successful and complete. The staff chose powerful symbols of American military might, an aircraft carrier, fighter jets, and U.S sailors. In addition, the staff sought to portray President Bush as an accomplished military leader, having the President fly onto the aircraft carrier on a Navy jet, despite the aircraft carrier being within helicopter range. While it remains unclear whether the ‘Mission Accomplished’ sign was intentionally placed behind President Bush, it is difficult to believe the sign escaped the attention of the White House communications staff. However, history demonstrates that the clearly orchestrated pseudo-event did not shape public perception in the way in which it was intended.
Rather, the American public created an altogether different meaning resulting from the public relations disaster. ‘Mission Accomplished’ was not only widely criticized in the press as premature (Andersen, 2007; Bash, 2003; Bradley, 2011), but also widely parodied (Ferell, 2010; The Daily Show with Jon Stewart, 2003). In addition, the phrase became an Internet meme symbolizing incompetence, failure, or disingenuousness (quickmeme, 2012; Urban Dictionary, 2012). The picture that emerges from the widespread use of ‘Mission Accomplished’ demonstrates an altogether different ‘defining moment’ than the one envisioned by the Bush administration.
Therefore, public administrators should consider carefully whether to attempt to stage ‘defining moments’ of their own, for public perception is not so easily shaped. Rather, when framing debates in the public sphere, consideration should be made how pseudo-events will play in the larger context of the public debate. While the mass media is an important tool for public relations, the idea that the mass media exerts a powerful influence over public perception has been refuted in studies of media effects. Instead, public relations staff should consider the meaning-making capability of individual audience members and how the symbols that are used support existing narratives in the public sphere.
Andersen, R. (2007, May 1, 2007). “Mission Accomplished,” Four Years Later Retrieved August, 15, 2012, from http://www.prwatch.org/node/6005
Bash, D. (2003, October 29, 2012). White House pressed on ‘mission accomplished’ sign Retrieved August 15, 2012, 2012, from http://www.cnn.com/2003/ALLPOLITICS/10/28/mission.accomplished/
Bradley, T. (2011, September 18, 2011). Press Missed ‘Mission Accomplished’ Meaning, Says Bush Staffer Retrieved August 15,, 2012, from http://abcnews.go.com/blogs/politics/2011/09/press-missed-mission-accomplished-meaning-says-bush-staffer/
CNN. (2003, Fenruary 7, 2003). Bush: ‘Defining moment’ for Security Council Retrieved August 15,, 2012, from http://articles.cnn.com/2003-02-07/us/sprj.irq.wrap_1_security-council-al-saadi-weapons?_s=PM:US
Ferell, W. (Producer). (2010, August 16, 2012). You’re Welcome America: A Final Night with George W. Bush. Retrieved from http://www.youtube.com/watch?v=5O0WUzU-Kxc
McQuail, D. (2010). Mcquail’s mass communication theory (6th ed.). London ; Thousand Oaks, Calif.
Thousand Oaks, CA: Sage Publications.
Myers, S. L. (2008, March 29, 2008). Bush Says Iraq Has Reach ‘Defining Moment’ Retrieved August 15,, 2012, from http://www.nytimes.com/2008/03/29/washington/29cnd-prexy.html
quickmeme. (2012). Bush Mission Accomplished Retrieved August 15, 2012, 2012, from http://www.quickmeme.com/Bush-MISSION-ACCOMPLISHED/?upcoming
Shafritz, J. M., Russell, E. W., & Borick, C. P. (2011). Introducing public administration (7th ed.). Boston: Longman.
The Daily Show with Jon Stewart (Producer). (2003, August 15, 2012). The “Sign” Controversy. Retrieved from http://www.thedailyshow.com/watch/wed-october-29-2003/the–sign–controversy
Time. (1933). Foreign News: Consecrated Press. Time.
Urban Dictionary. (2012). mission accomplished Retrieved August 16, 2012, 2012, from http://www.urbandictionary.com/define.php?term=mission+accomplished
Warren, J. (2011, May 5, 2011). Obama, Osama, and the Problem With Defining Moments Retrieved August 15,, 2012, from http://www.theatlantic.com/politics/archive/2011/05/obama-osama-and-the-problem-with-defining-moments/238394/
On December 25, 1991, the U.S.S.R. was officially dissolved as a state entity after roughly six years of the most ambitious attempt at reinvention of government in modern history. Gorbachev’s policies of Glasnost and Perestroika, openness and restructuring, sought to reform the existing political and economic systems, given the failure of the U.S.S.R’s centrally planned economy (Moss & Thomas, 2010). The inefficiency of the U.S.S.R.’s command economy resulted in the country’s inability to compete as a world power on the global stage with the United States (Shafritz, Russell, & Borick, 2011). The subsequent dissolution of the U.S.S.R serves as a reminder of the important link between a state’s administrative doctrine and the well being of its citizens. Indeed, effective administrative doctrine is essential for the successful public administration of state, given it is a key driver of the effectiveness of state institutions that can positively or negatively affect the well-being of constituents and the survival of the state on the global stage.
Early Soviet administrative doctrine was heavily influenced by Western schools of thought in pubic administration (Cocks, 1978). In particular, the Soviet administrative rationality movement of the 1920s and 1930s, adopted many of Taylor and Fayol’s principles of scientific management (Cocks, 1978). However, the USSR focused on the technical production aspects of scientific management and appeared unable to adopt Fayol’s managerial principles as they dealt with “coordination, control, organization, planning, and command of people” (Shafritz, et al., 2011, p. 231); issues that would affect the landscape of Soviet political power (Cocks, 1978). Rather, “the rationalizers were to deal only with administrative methods; they were not to decide issues of policy and power” (Cocks, 1978, p. 46). The limits placed on rational administrative doctrine by the Soviet party apparatus all but assured the rational movement would be unable to evolve to address the failures of the centrally planned economy.
In truth, while administrative doctrine in the U.S.S.R appeared to be unable to evolve, the history of western organizational theory demonstrates a consistent evolution and adoption of new scientific thought. Shafritz, et al. (2011) note that paradigms in administrative doctrine “overlap both in time and content because they are constantly evolving” (p. 245), in response to scientific advances, technological changes, and changing environments, describing doctrinal development as “inherently cyclical”. Furthermore, Shafritz, et al. (2011) attribute the cyclical nature of administrative doctrine to a competence/incompetence cycle whereby new innovations increase effectiveness until “advancing technologies and changing environments allow the innovation to deteriorate relative to other arrangements” (p. 246), noting striking similarity to the boom and bust cycles of the business world.
Indeed, both the boom and bust cycle of the business world and the competence and incompetence cycle of large organizations share similar roots in human biological and social processes. Raafat, Chater, and Frith (2009) describe herding behavior in humans as “as the alignment of the thoughts or behaviours of individuals in a group (herd) through local interaction and without centralized coordination” and use the herding metaphor to explore the very human proclivity to follow the behavior of others preceding them, particularly should they appear successful. Herding behavior, in this sense, can be used to describe why best practices and even benchmarking are commonplace. Of course, the downside to herding is that individual or groups are unlikely to wander far from the herd, either, resulting in maintenance of the status quo until such time as there is an internal or external shock that creates a need for change to begin the innovation cycle anew.
Of course, the USSR administrative doctrine did not follow the competence and incompetence cycle and as a result, appeared unable to innovate or evolve their approach to public administration. The lack of an evolved Soviet public administration doctrine left the state unable to deal with the changing global landscape, nor able to compete with U.S. economic and administrative power, despite the considerable political power of the U.S.S.R. As the fall of the U.S.S.R demonstrates, effective administrative doctrine is essential for successful public administration of a state, can either positively or negatively affect the well being of constituents, and have implications for the long-term survival of the state.
Cocks, P. (1978). Administrative rationality, political change, and the role of the party. In K. W. Ryavec (Ed.), Soviet society and the Communist Party (pp. xviii, 220 p.). Amherst: University of Massachusetts Press.
Moss, G., & Thomas, E. P. (2010). Moving on : the American people since 1945 (4th ed.). Upper Saddle River, NJ: Pearson Education.
Raafat, R. M., Chater, N., & Frith, C. (2009). Herding in humans. Trends in Cognitive Sciences, 13(10), 420-428.
In May 2007, Encarnacion Bail Romero, mother of Carlitos Romero, and an undocumented worker in Missouri, was arrested at a poultry plant by Immigration and Customs Enforcement agents during an immigration raid (Gigler, Ross, & Hill, 2012). While Romero was incarcerated for an immigration-related law that the Supreme Court later struck down as unconstitutional, the State of Missouri terminated Romero’s parental rights and granted the adoption of Carlitos to a Missouri couple (Cambria, 2012). After Romero exhausted all legal options, the adoption was upheld by a Missouri Juvenile Court (Ross & Hill, 2012). Romero’s case is not an isolated incident, as Wessler (2011) found that more than 46,000 parents of U.S. citizen children were removed from their children in the first half of 2011, and at least 5,100 children of detained or deported undocumented immigrants are in U.S. foster care. These types of cases highlight the complexity of intergovernmental relations in a federalist system, existing precisely because of the gaps between the patchwork of federal, state, and local immigration laws and policies. Immigration policy gaps exist because federal, state, and local policymakers disagree over both the aims and means of immigration policy and because federal policy consequences are borne by state and local governments in the form of an unfunded mandate, giving rise to immigrant federalism caused by active state and local governments seeking to create change.
Hoefer, Rytina, and Baker (2012) estimate that there are 11.5 million unauthorized immigrants living in the United States, the majority of which are from Mexico and Central America. Extreme estimates by conservative, anti-immigration think tank FAIR, suggest that undocumented immigrants cost $113 billion annually, 76% of which is borne by state and local governments (Martin & Ruark, 2010). Although, the Congressional Budget Office (2007) found that while the costs to state and local governments exceeded the revenues from undocumented immigrations, the budgetary impact was modest. Furthermore, and Shafritz, Russell, and Borick (2011) and Hanson (2007) both recognize that undocumented immigrants are positive for the U.S. economy. Why then are state and local governments more active in the legislation and regulation of immigration?
While the lack of reliable statistics give fuel to differing partisan perspectives on the immigration debate, the unequal budgetary burden placed on state and local governments make illegal immigration “the mother of all unfunded mandates” (Shafritz, et al., 2011, p. 164). It is therefore, little surprise, given both the economic burden and a lack of clear direction from the federal government, that state and local governments are seeking a rearrangement of immigrant federalism (Huntington, 2008). In fact, Huntington (2008) argues that the immigration debate should be considered through a lens of federalism to determine proper allocation of power between the various levels of government, rather than having the federal government preempt all immigration law and policy decisions. Huntington’s (2008) perspective echoes the notion of incremental decision making inherent in a federal system that Shafritz, et al. (2011) consider “integral to democracy” (p. 140). Indeed, the tendency towards incrementalism may be one of key reasons for lack of clear immigration policy from the federal government.
Shafritz, et al. (2011) note that in 2007, “at least 1,100 immigration bills were submitted by state lawmakers” (p. 164). Some of the new legislation is aimed at making illegal immigration less favorable in the jurisdictions of local lawmakers, while other localities enact legislation to make illegal immigration more favorable (Huntington, 2008). Where some lawmakers are seeking to discourage illegal immigration to reduce the economic consequences of the unfunded mandate, others are seeking to encourage immigration in order to grow their local economies. There are also some who consider anti-immigration a thinly, veiled attempt to advance a nativist and ultimately racist agenda (Zeskind, 2005). Indeed, history would suggest that immigration policy has it roots in a discriminatory agenda (U.S. Commission On Civil Rights, 1980). It is clear that differing policy actors have conflicting views on the aims of U.S. immigration policy, and likely the means. It is equally clear that the federal government must consider the various policy aims of constituent governments, while also assuring the needs and interests of minority or weaker groups are protected. It appears to this author that the federalist system of government is both the cause of the slow progress in immigration reform, and responsible for the benefits of the existing immigration policy to various constituents.
Despite the history of incrementalism inherent in a federalist system, the immigration debate has started a new chapter in what appears to be a continual redefinition of federalism to determine where legislative and administrative power resides in immigration policy. As federal immigration policy consequences are largely borne by state and local governments, the last decade has seen the rise of immigrant federalism creating a patchwork of federal, state, and local immigration laws that clearly disagree over both the aims and means of national immigration policy. While the immigration federalism policy debate appears far from over, the urgency to improve immigration policy is clear, because existing policy allows the U.S. citizen children to be involuntarily taken from their undocumented immigrant parents, a situation that should never occur in a country built on the principles of life, liberty, and the pursuit of happiness.
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Gigler, L., Ross, B., & Hill, A. M. (2012, February 1, 2012). Adoption Battle Over 5-Year Old Boy Pits Missouri Couple Vs. Illegal Immigrant Retrieved August 4, 2012, from http://abcnews.go.com/Blotter/adoption-battle-year-boy-pits-missouri-couple-illegal/story?id=15484447 – .UB1uVI6_FLo
Hanson, G. H. (2007). The economic logic of illegal immigration. Council on Foreign Relations, 26(April 2007), 1-52.
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Huntington, C. (2008). The consistutional dimension of immigration federalism. Vanderbilt Law Review, 61(3), 787-853.
Martin, J., & Ruark, E. (2010). The fiscal burden of illegal immigration on United States taxpayers (pp. 1-95). Washington DC: Federation for American Immigration Reform.
Ross, B., & Hill, A. M. (2012, July 18, 2012). Tug-of-Love: Immigrant Mom Loses Effort to Regain Son Given to US Parents Retrieved August 4, 2012, from http://abcnews.go.com/Blotter/immigrant-mom-loses-effort-regain-son-us-parents/story?id=16803067 – .UB1t-o6_FLo
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