Supporters of net neutrality – those of us who oppose allowing Internet service providers to collect tolls from users wanting higher broadband speeds – are rowing upstream.

Not only do powerful interests – e.g., AT&T, Verizon and cable companies – want to exploit the Federal Communication Commission’s current treatment of Internet access as a commercial commodity (rather than a public utility), we are also caught in the seemingly inexorable spread of the exclusionary takeover of the invisible public “commons” of government data.

“Shane,” Jack Schaefer’s 1949 novel, was inspired by the Johnson County, Wyoming, Range War of 1892. That conflict was the climax of years of violence among the region’s owners of open-ranging cattle and ranchers who unfurled barbed wires for miles to keep those cattle out.

We now find ourselves caught in an invisible enclosure movement that is changing our country’s political economy in ways no less historic. What is being enclosed is information essential for responsible civic action, and publicly financed intellectual capital essential for democratic prosperity.

Since the mid-20th century, public access to government information in the United States has been protected by “sunshine” or open-access laws. Their foundations were laid when the federal Administrative Procedures Act of 1946 sought to ensure openness and transparency in the operations of the federal government.

The federal Freedom of Information Act began life as an amendment to the 1946 law, which was followed by similar state laws, including, in 1959, Maine’s Freedom of Access Act. A companion measure, the Federal Advisory Committee Act of 1972, arose from fears that industry groups and well-heeled political donors were capturing policymaking behind closed doors in secret federal “advisory committee” meetings.

The good-intent “sunshine” legislation has been steadily undermined by technical exemptions either written into legislation, or buried in its implementing regulations.

In 2012, the Maine Senate declined to vote on an effort by Gov. LePage’s office to exempt “working papers” created by the governor or his staff from disclosure under Maine’s FOAA. (Our Legislature, meanwhile, enjoys such an exemption for its own working papers – not to be confused with “official records,” which are the documentary foundation for law and policy.)

Evasion of open-government laws has been defended in predictable ways. There are the technical quibbles: Was first lady Hillary Clinton a federal employee when she conducted closed meetings of her National Health Care Reform Task Force? Were Vice President Dick Cheney’s meetings of oil, gas and coal industry chums to advise him on the administration’s energy policy sufficiently well organized to constitute “advisory committee” meetings?

And then there was the Le-Page administration’s astonishing response to the Legislature’s questioning his “working papers” FOAA exemption bill: “Without the exemption, the governor and his staff likely would stop creating records for fear that they might be made public.”

Most troubling is the defense that advisers must feel free to give candid advice to public officials. Setting aside genuinely private matters or sensitive national security information, what sort of knowledge necessary for informed public action should not, could not or ought not be made public? In what judicial code have we enshrined the notion that candor and honesty require concealment?

A substantial amount of intellectual capital (i.e., inventions) is documented in federally owned patents arising from publicly funded research and development. Until the 1980s, royalty-free licensing by industry of federal patents was widely accepted as a fair way of preserving the public’s rights to the information in those patents, while ensuring the ability of industry to produce and market the resulting innovations.

With the “Reagan Revolution” of the 1980s and its worship of privatization, federal research and development contractors and grantees (industry and universities) were allowed to assert rights to patent inventions arising from taxpayer-funded research. If they actually patented their inventions (thus publicly disclosing novel ideas) and developed or licensed new products, all well and good.

But today too many of those inventions go unpatented, concealed as “trade secrets,” or, if patented, go undeveloped and bundled into intellectual property securities, further enriching the financial sector and becoming a substantial component of the asset base of the S&P 500. What’s more, thanks to Forsham v. Harris (1980), scientific data generated under federal grants and contracts is not subject to the Freedom of Information Act.

Until we appreciate the real loss of the public’s information and innovative ideas behind today’s invisible fences, maintaining an open Internet will be tougher than we might imagine.

— Special to the Press Herald