Privatizing Law

The good folks over at Scholars and Rogues have this report on the new terms of service that AT&T is foisting upon its high-speed internet subscribers. Seems that the company can freely terminate any or all of your services for, inter alia, engaging in “conduct that AT&T believes . . . tends to damage the name or reputation of AT&T, or its parents, affiliates and subsidiaries.”

Does this mean that AT&T will shut off your internet access if you post a complaint about a bogus AT&T bill on some consumer advocacy website? Who knows. The point is that the language is broad enough that they can.

Corporations not being governments, they aren’t subject to constitutional constraints and thus can get away with all sorts of shit that government can’t (at least theoretically). Ask a free marketeer about this sort of idiocy and you’ll generally get some ill-conceived drivel about freedom of contract in response. Trouble is, terms-of-service documents and end user license agreements aren’t contracts in any meaningful sense of the word, except as the word is used in the phrase “contract of adhesion.”

So what’s the big deal? If you don’t like AT&T’s terms of service, go somewhere else, right? That may well work for awhile, but it can’t be sustained forever.

Capitalism relies on competition-generated choice to keep things sane. However, corporations have proven time and time again that competition is the last thing any of them wants. The end result of laissez faire capitalism is a world full of single-seller or cartel-controlled markets. If the internet access cartel decides that refraining from public criticism of its members is the price you have to pay for going online, it’s done. Private corporations have, for all intents and purposes, passed a generally applicable law sanctioning a certain sort of speech.

That prospect is all the more disturbing when one considers that the people who call the shots within corporations tend to be uberconservative. Recall that AT&T unlawfully disclosed oceans of protected information to the Bush administration in connection with the War on T’rr’r(TM).

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