Want to be fingerprinted, pay fees, file reports and subject yourself to on-demand audits?Just provide any commodity or futures information and wait for the CFTC's knock on your door. While national attention focuses on regulating indecendy online, government actively seeks to regulate the Internet with potentially more damaging consequences for the whole of society. If unchallenged, these proposed rules herald the intrusion of the heavy hand of government into previously sacrosanct areas of speech. The federal government, through the Communications Decency Act, seeks to control the content of speech on the Internet. The proposal by the Commodity Futures Trading Commission (CFTC) represents another, equally dangerous tack that must be brought to the attention of all Internet users and providers. The CFTC is the federal agency charged with regulating the commodity and futures markets in the United States. The CFTC has asserted jurisdiction over all Internet speech and intends to routinely scour the Internet for violations of its regulations. Imagine the post office opening your mail on a regular basis! The CFTC claims that it, and only it, can grant the right to publish
information on commodities. Anyone who offers opinions, analysis, or even
general information on commodities (like prices) in exchange for compensation
must be registered as a "commodity trading advisor." Registration
requires fingerprinting, paying fees, filing reports with the CF This specter of Big Brother should not be too surprising. History is rich with inventions ever expanding our ability to communicate, and richer still with attempts by government to censor speech and control access to information. With the commercialization of the Internet, regulatory creep was bound to follow. The CFTC fired one of the first regulatory salvos. Founded in the mid-1800's, the organized commodity exchanges were created to establish the price of agricultural products, not only for immediate delivery, but also for future pricing. The markets enabled farmers and producers to know what price they could expect to receive at harvest time, before even planting a crop. Thus, farmers could determine whether or not it made economic sense to plant a crop in the spring for harvest in the fall. Today, these markets (now known as the commodity and futures exchanges) include everything from pork bellies to Japanese Yen, heating oil to soybeans. They have evolved into one of the most important financial markets in the world, enabling raw materials producers, processors and users, financial intermediaries, and international companies to manage their price, interest rate, and exchange rate risk. And speculators throughout the world can interpret the information that converges on the exchange floors and enter the futures markets as investors. Our futures markets are a classic example of the free enterprise system at work. Think commodity trading has nothing to do with you? Unsurprisingly, rather than limit government's role to protecting individuals from fraud in the commodities and futures markets, the CFTC sought to maximize its power at every turn. Not content to simply police individuals and firms actively managing investor accounts or providing financial capital supporting the futures contracts, in 1995 the CFTC began investigating and prosecuting newsletter publishers who provide nothing more than basic information benign facts such as prices, weather reports, and historical trends in commodities markets. The CFTC demands these publishers register as "commodity trading advisors" even though they neither offer personalized investment advice nor actively invest customer funds in the market. This attempt to extend the reach of power is nothing new. The Securities and Exchange Commission (SEC) attempted to do the exact same thing in the 1980s to individuals providing information on stocks and securities. But in 1985 the U.S. Supreme Court held that so long as individuals are merely publishing information about stocks and securities, rather than trading them, they need not be registered with the SEC. Lowe v. SEC, 472 U.S. 181 (1985). As a result, the SEC went back to its authorized mission of rooting fraud out of the marketplace rather than harassing publishers. Importantly, this precedent did not hamper the ability of the SEC to go after the "bad guys" in the financial business, but instead led to a proliferation of new sources of information for people interested in stock trading. Motley Fool, the new on-line source on stock trading, is but one example of the burgeoning sources of information on stocks and securities. Individuals who publish about commodities, however, do not enjoy this same protection and instead live in fear that the CFTC will stop their presses. But the story doesn't end there. The CFTC has moved beyond traditional newsletter publications and now wants to regulate computer software and information online. Through its proposal, the government seeks to license speech, and, by consequence, license Internet providers. It has filed lawsuits seeking to stop unregistered developers of computer software from offering their products. And last year the CFTC quietly attempted to regulate the Internet with potentially more damaging consequences for all of society. Although the CFTC has suspended, but not withdrawn, its proposed Internet regulations pending further review, the proposal heralds the intrusion of the heavy hand of government into this vital emerging technology. The proposal spares virtually nothing on the Internet from CFTC oversight and regulation--web sites, usergroups, and hyperlinks are brought under the CFTC's jurisdiction. Anyone who establishes one of these tools and accesses or disseminates any information on commodities or futures must be registered, fingerprinted, pay fees, and be subject to audits at the demand of the agency. |
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