Aaron Williamson's webl

Matt Asay does not believe in a fundamental right to Internet access. His most recent barely considered core dump of generalities begins with this bit of popular conservo-libertarian retcon: “While the framers of the U.S. Constitution talked about the rights of assembly, speech, and religion, our modern world has crowned new rights.”  He goes on to lament the “entitlement culture” which has produced one or two European Politicians who believe Internet access is a fundamental right, and to pioneer the notion that people should have fewer rights and more (unenforceable) responsibilities.

Matt is wrong¹ about history.  Nevermind that his thesis, about the framers’ niggardly disposition of rights, enumerates only those granted in the First Amendment (that’s out of 10).  By simplifying to absurdity the history of the Bill of Rights, and omitting completely the development of rights over the course of U.S. and world history, Matt leaves not even a single fun-sized marshmallow of credible context to support his rhetorical toothpick-house.

His conception of the constitutional framers as a unitary band of Democratic-Republicans is shallow, ignoring that the Constitution is and has always been a product of compromise, and that the Bill of Rights is by its own terms² an irreducible minimum statement of rights, not an exhaustive list.  To give Matt some credit, he correctly points out that “US constitutional rights tend to keep govt *out* of citizens’ lives,” and he believes that a right to access does the opposite (roundaboutly, via increased taxation). But Matt’s questionable comprehension of constitutional history is not entirely (or even mostly) why he’s so wrong.

The problem with all of these bothersome rights, Matt says, is that they create a slippery slope.  If you give someone a right, then they might think the right is attended by specific guarantees.  Deftly unwinding the logical integrity of a single tweet, Matt points out that if people are given a right to use a channel of communication simply because that is how one interacts with government, then there is no literally no possible way to distinguish that channel from any other.  If the right to participate in government means that the government must enable that right, then they have to in every conceivable, to the full extent imaginable.  End result?  The government has to buy me the New York Times AND the Wall Street Journal so I can make an informed voting decision.

Matt went to law school, scout’s honor.  At Stanford.  Presumably he took Constitutional Law and learned that over this country’s 230-odd years, Congress and the courts have managed to define, adapt to technological changes, and where necessary narrow a great number of rights, all without giving me a free newspaper.  They’ve addressed some of the issues Matt touched on — for instance by requiring balanced treatment of controversial issues by broadcasters — but the unlimited expansion of rights with which Matt is concerned has been repeatedly thwarted by reasonable people.

But again, one need not engage Matt on the battlefield of grand constitutional theory to see why he is wrong.  One need merely do what Matt seems never to ever do before reaching — and blogging — his opinion: read past the headline.  Because the “fundamental right” Matt is up in arms about isn’t the one he thinks it is.  The European Commission did not consider “codifying Internet access as a basic human right.”  Rather, it merely considered an amendment prohibiting ISPs from limiting subscribers’ access without a court ruling:

[T]he Parliament’s lower house… passed an amendment to the telecommunications package making it illegal for any E.U. country to sever Internet service unless a citizen is found guilty in court…

As the New York Times notes, “the amendment was intended as a rebuff to a proposal before the French National Assembly that would allow a government agency to sever Internet service based on industry complaints.”³ It does not create a right to access for those who haven’t paid for it or impose any other great taxpayer burdens.

So Matt is wrong even about the topic of the debate — the “fundamental right to Internet access” is a strawman he’s set up.  I don’t think he intended to mislead anyone, he just didn’t do his homework.  He read a couple of headlines and one politician’s puffery and took it from there (this is a common M.O. for Matt, which is a major contributing factor to his always being wrong).  But even that immanently defeatable strawman (I don’t know anyone, myself included, who would argue for creating a fundamental right to Internet access, and certainly not absent a detailed plan for implementation and some strong limits on scope) is more than a match for Matt, who relies on popular historical revisionism and an unrealistic parade of horribles to refute the argument that no one is making.

1. Matt Asay is Wrong will be a recurring feature of the copiesofcopies webl. [↩]
2. See the Ninth Amendment. [↩]
3. French Anti-Piracy Proposal Undermines E.U. Telecommunications Overhaul, May 7, 2009.  Matt claims that Parliament voted against the amendment, which is incorrect.  The parliament instead temporarily defeated a deal permitting three-strikes style laws, by introducing the amendment.  This can all be found in the first two paragraphs of the article Matt cites. [↩]

Last September, I found a great apartment, via Craigslist, at 350 Lincoln Place in Prospect Heights — it had unheard-of-in-NYC amenities like a dishwasher & central air, a roommate I liked and had things in common with, and a rent I could afford.  Unfortunately, when we met with the super (Bajram Lukovic, aka “Baki”) so I could sign the lease, he told me I had to pay him a $900 fee to move in to the apartment.  He explained that other tenants have said that that’s illegal, and he assured them it wasn’t but if they preferred they could go pay a fee instead to the broker the building had a deal with (it would cost more, though).  Also, the fee had to be paid in cash or cashier’s check, and the tenant would not be given a receipt.  “I tell them, ‘The lease is your receipt,’” he said, but he would not include a mention of the fee in the lease agreement.

This fee is illegal “key money.”  No agent of a landlord in NYC can charge tenants for anything other than rent, a security deposit, and the (actual) cost of a background check (usually no more than $100).  Demanding more than $250 in key money is a class A misdemeanor under N.Y. Penal Law § 180.56.  “Systematically” demanding key money from three or more tenants is a class E felony under N.Y Penal Law § 180.57.

I should not have taken the apartment.  But I liked the place, I didn’t want to leave my roommate in the lurch (it had been about two weeks since I’d agreed to move in, and he’s stopped looking for other takers) and I would have had to pay a broker’s fee for most other places anyway, so I decided to suck it up and pay the key charge.  I collected what documentation I could of the payment: I called the landlord (Leah from Eckstein Properties, dba 350 Lincoln Place Owners’ Association) and confirmed that she was aware of and stood behind the super’s fee;  I sent her a letter (unregistered, unfortunately) describing the fee, and I kept a copy; I gave the super a similar letter along with the check, cc’d the landlord, and kept a copy for myself; and I kept the check’s stub.

But even though I know my rights and did about as much as could be expected to document the transaction, I suspect there’s nothing I can do to retrieve my money.  The NYC Rent Guidelines Board informs me that the Attorney General will probably take no action without “solid evidence” or a corroborating witness.  My roommate doesn’t want to rock the boat, and he was the only one there besides me.  The cashier’s check, though made out to Lukovic, could have been cashed by anyone.  The letters are from me, and anyway I sent them unregistered so they are readily deniable.  For all of these reasons, an action in small claims court could also easily fail.

One option would be to hold a meeting of the building’s tenants — which I can do in the building without interference or retaliation by the landlord under N.Y. Real Property Law § Sec. 230 — and find others who were charged key money to corroborate my story or put pressure on the landlord.  But if no one shows up (for example because they’re afraid of retaliation, notwithstanding their rights) then I could upset my roommate’s relationship with the landlord against his express wishes for nothing.  And after all, I moved into his apartment.

I’m posting this for a couple of reasons: first, if anyone thinks of anything I haven’t that could help me, please let me know; second, I just want people to be able to google “350 Lincoln Place” and find out that the owners are responsible for rent gouging; third, to make the point that even in NYC, which has some of the strongest tenant protections in the country, it can be difficult or impossible to exercise your rights, because it’s not just your rights at issue.

FML