Network Neutrality Exaggeration

by on August 23, 2008 · 17 comments

One of the frustrating things about telecom debates is participants’ tendency to play fast and loose with the numbers. This tendency exists on both sides, but I think it’s more pronounced for the pro-regulatory side. Consider, for example, Susan Crawford’s post from last week on John McCain’s tech agenda:

First, here’s the fact: We don’t have a functioning “free market” in online access. John McCain thinks we do. That kind of magical thinking takes real practice.

Instead, we’ve got four or so enormous companies that control most of the country’s access, and they’re probably delighted that McCain is promising not to regulate them.

I can’t think of any plausible way of defining the broadband market that gives you four as the number of major firms. We have three major telephone companies and (depending on where you draw the line) somewhere between four and eight major cable companies. And that, of course, is focusing exclusively on high-speed residential service. T-Mobile and Sprint provide lower-speed wireless Internet access, and there are a number of companies that provide access to business customers.

Maybe that’s just nitpicking about the numbers, but her qualitative view of the marketplace is just as distorted:

Not having basic, general purpose transport in place (to which lots of independent ISPs can connect) means no predictability for businesses or their investors. It also means we’re empowering a few large gatekeepers to decide which companies will be effective. That kind of private control over communications is something we’ve always cared about avoiding – until very recently.

Restoring basic, general-purpose, nondiscriminatory transport is not “regulating the Internet.” It’s making the Internet – the conversation, remember, not the sidewalk – possible.

The idea that “basic, general-purpose, nondiscriminatory transport” has been lost and needs to be “restored” is simply absurd. With Comcast’s BitTorrent shenanigans, it’s no longer true that there are no significant examples of network neutrality violations. But to conclude from that one incident that “a few large gatekeepers” can now “decide which companies will be effective” on the Internet is quite a leap. In case Crawford didn’t notice, Comcast has promised to stop interfering with BitTorrent traffic, and other ISPs have not rushed to emulate Comcast’s example.

It remains true that the Internet remains an overwhelmingly open and decentralized medium, and there’s no evidence that those 4, 7, 11, or however many major broadband providers have the ability to change that. The legal right to discriminate does not confer the practical ability to do so. The evidence thus far, three years after Brand X, is that discrimination is clumsy, rare, and subject to public backlash.

In my view, that’s a good thing, and we should be debating the best way to keep it that way. But that debate isn’t going to be very productive if the pro-regulatory side insists on pretending that we’re already living in a dystopian world in which four companies exert despotic control over the online activities of every American.

  • http://bennett.com/blog Richard Bennett

    Neutralist exaggeration is the main reason I waded into the fight over Internet access network regulation back in 2002. The Stupid Network idea is a myth, and the notion that the End-to-End Internet is novel is also a myth. Every packet network has an end-to-end layer as well as a hop-to-hop layer, and always has.

    You have only to look at the competing architectures of the 1970s to see this: DECNet, SNA. ISO, and XNS were all structured as layered systems where the end-to-end piece was responsible for application flow control. This was simply a necessity dictated by the high latency of packet networks and the need for data receivers to be protected from over-run by faster senders. It simply mystifies me that anybody can figure this necessity of network design to form the foundation for a regulatory system.

    The wild attacks, false claims, and romantic idealizing that the neutralists routinely employ are responsible for significant public misunderstanding of the potential and limitations of packet networks, and promoting a proper understanding is the only effective antidote.

  • http://enigmafoundry.wordpress.com eee_eff

    the issue is simply this: control of the medium of public discourse. I especially like Crawford's metaphor–of the internet as a forum–which for most users it resembles.

    The fact that it is technologically complex–as Richard Bennett points out–means the form of any regulations need to be carefully considered, but not there ultimate goals: stop corporations from interfering in the free speech of natural people.

    There are of course, thousands of examples of corporations interfering with free speech–and to leave the internet uniquely unprotected against such control exactly when it is becoming an important medium of public exchange is a straight road to serfdom.

  • Ryan Radia

    I don't know of a single instance of a corporation censoring free speech on the Internet. AT&T censored Pearl Jam on its Blue Room webcast, but that is not really censorship because the Blue Room is hosted by AT&T and people regularly choose which speech to host under their own name. Verizon blocked pro-abortion text messages, but that wasn't really on the Internet, and Verizon ended its practice after public criticism before government even got involved.

    Corporations care about customers, and customers care about the ability to speak freely. Regulating companies to protect against what are, essentially, hypothetical threats to speech is going to create far more problems than it solves.

  • http://enigmafoundry.wordpress.com eee_eff

    I don't know of a single instance of a corporation censoring free speech on the Internet

    Well, first my comments about corporations interfering with free speech was not limited to the internet–the point I am making is that if they so regularly suppress dissent and free speech in other arenas, why should we trust them to not act similarly if they are given free rein over the internet?

    There are many examples of corporations suppressing free speech–look at the paper that Ed Felten could not deliver. Look at the case of Dmitry Sklyarov, or DVD Jon.

    The book Steal this Idea: the Corporate Confiscation of Creativity by Michael Perelman is filled with examples of corporations censoring free speech.

    But if you really need some examples of corporations suppressing free speech on the internet:

    Julius Baer had wikileaks turned off. It wasn't turned off for long it is true, but it is clear that the intent was there, so let's not give them the means.

    Corporations care about customers

    No, they only care about profits; that is essential to their current structure in today's economy. It is true that sometimes markets are structured so that the over-riding care for profits is turned into good behavior towards customers, but as corporations become entangled with governments or become monopolies, it is obvious that they care less and less about customers. That's one of the reasons governments should care about market structures and the outcomes they create for all of society.

  • http://enigmafoundry.wordpress.com eee_eff

    And here are four more examples of corporations censoring on the internet:

    In 2004, North Carolina ISP Madison River blocked their DSL customers from using any rival Web-based phone service.

    In 2005, Canada’s telephone giant Telus blocked customers from visiting a Web site sympathetic to the Telecommunications Workers Union during a labor dispute.

    Shaw, a big Canadian cable TV company, is charging an extra $10 a month to subscribers in order to “enhance” competing Internet telephone services.

    In April, Time Warner’s AOL blocked all emails that mentioned http://www.dearaol.com – an advocacy campaign opposing the company’s pay-to-send e-mail scheme.

    Let's not give them the means to do any more censoring.

  • Ryan Radia

    Because corporations are ultimately driven by profit, as long as there's sufficient demand for networks allowing free speech, companies will respond by providing these networks.

    Enigma, I completely understand your concerns about the potential for corporations to censor important avenues of speech, but as long as government stays out I am confident that open and unrestricted networks will have a place in our society. Even us pro-business TLFers would surely be up in arms were an Internet Service Provider to censor content for no good reason. Still, I question the need for government intervention in cases where a private company chooses to restrict the flow of information on its own network. We should let the marketplace punish those who infringe upon free speech. And believe me, between vigilant bloggers, media watchdogs, and competitors, any ISP foolish enough to restrict speech on a sustained basis would learn its lesson swiftly and fiercely.

    I was incensed when GoDaddy blocked RateMyCop.com for some BS reason. GoDaddy took a lot of entirely justified bad press, and in researching the issue I became aware of a small hosting site called NearlyFreeSpeech.net, which offers an admirable set of policies guaranteeing that customers will not face any censorship except from government agencies.

    When AOL blocked the online petition critical of its spam policy, the problem was fixed in a matter of hours. When Verizon was found to be blocking text messages from abortion groups, it backed down after taking flak in the blogosphere. When a clause was found in AT&T's terms of service that allowed the company to cut off customers for criticizing AT&T, the terms were soon amended. All these examples of corporations making mistakes were resolved before regulators had a clue what was going on.

    While free, open networks are important, I don't see why networks which actively censor content shouldn't be able to coexist. The proposed M2Z plan, which I object to for a variety of reasons, would be just fine with me if it were to emerge as a result of an open auction. An ISP that touts itself as kid-friendly may have a place in the market, and there's nothing wrong with that. I, for one, would never subscribe to such an ISP, but if some parents would prefer server-side filtering, then I see no reason why government-mandated openness should preclude it.

    I have no problem with companies having the means to engage in censorship. The same ability that allows ISPs to block undesirable speech allows them to block spam, viruses, botnets, and other material that surely has no value even to the most ardent proponents of free speech.

    Besides, if my ISP censors content in a manner that I disapprove of, I will switch to a competing ISP. But I don't think I'll ever have to. The worst case scenario, in my mind, is that my ISP will make a bone-headed move that will get resolved fairly quickly

  • http://enigmafoundry.wordpress.com eee_eff

    Because corporations are ultimately driven by profit, as long as there's sufficient demand for networks allowing free speech, companies will respond by providing these networks.

    You don't enumerate all of the assumptions that are requisites for a market to create the outcomes you describe. One way to get there would be to describe in a more consistent vocabulary set your statement above, while describing the full range of variables that feed into your conclusion. Your conclusion, I think, will then be seen to apply to a special case where all necessary underlying variables have a certain set of values. I would make the case that the necessary preconditions for your conclusions do not now exist. Here's a brief attempt to do that:

    If it is more profitable than any other alternative paths of action, corporations will seek to maximize their profit.

    Included in the above set of alternative paths of action is the provision of a network allowing free speech.

    Given that corporations will seek to maximize their profits in all of their endeavors, they will balance the profitability of providing a network allowing free speech against the effects that such a network has on other business interests.

    The demand for a network allowing free speech is proportional to the value placed on free speech by market participants.

    Members of society are not all equal market participants, and they have different and conflicting interests in creating a network allowing free speech.

    The members of society most likely to benefit from the existence of a network allowing free speech are likely to be the least empowered market participants.

    Those who interests would not include the creation of a network allowing free speech would be the most inclined to hide the fact that the existence of such networks were threatened.

    The higher the number of market participants that exist, the more likely that one or more of the network providers will seek to differentiate themselves in the market by providing a network allowing free speech.

    This is really a short list.

    The key qualifier that you make, though is “as long as governments stay out” and that indicates a certain unwillingness to face the facts of the methods that corporations are using.

    It is notable, for example that you did n't mention the case of Telus, in which government and corporations acted in tandem to eliminate free speech.

    The Great Fire Wall of China is real; and with the support of Google, it isn't going anywhere anytime soon.

    Which raises a very interesting question, in my mind. Where are all the libertarian critics of China?

    I have found a great deal of support for China on TLF (usually in the case of those who don't criticize a corporation for aiding the communist regime) and in IPCentral (usually for having a strong IP regime)

    I would think, given libertarians self-proclaimed proclivity for freedom I would find some criticism of China here. But I don't. There is more criticism of Richard Stallman or the Free Software Foundation here, than there is of China.

    And that's because libertarianism has become empty, focusing only on those freedoms which will allow large corporations to increase there power, while any substantive freedoms which would empower individuals are largely ignored by libertarians

  • Ryan Radia

    I agree with you that free speech is but one of many considerations taken into account by corporations when making business decisions. Yet while there are plenty of opportunities for network operators to silence dissent and suppress unpopular views, such exercises in censorship are quite rare. And this is largely due to the potential for public backlash rather than government regulation. Those who benefit most from the ability to speak freely may be the least powerful members of society, but that does not mean that individuals in power do not also value free speech. The public relations nightmare that would likely ensue were an ISP to block a website for financial gain is enough to discourage censorship in most cases. Occassionally, of course, a company makes a bone-headed move, but in most cases the market course corrects quite quickly.

    When it comes to China, please do not conflate TLFers' support of American companies doing business in China with us supporting the egregious policies of the Chinese regime. Perhaps some of us should spend a bit more time criticizing China and a bit less time criticizing open software, but that does not mean for one minute that we condone the tyrannical policies of the Chinese government. I, for one, spoke out against the egregious violations of human rights perpetrated by Beijing during a recent interview with the E-Commerce times. China's lack of concern for free speech is deplorable, but that does not necessarily mean that American companies should be barred from conducting business in China. This is a difficult question, and it is one that many defenders of liberty have struggled with. I am inclined to believe that whether or not American firms do business in China, the end result will be the same. China will do as it pleases, without regard to American action, so we might endeavor to bring information to the Chinese people, even if that means being subject to the constraints of the Chinese regime. The alternative seems far worse. De-facto state enterprises are likely to fill any void that would result from the exit of Google and Yahoo from China.

    When government acts in tandem with corporations to insulate existing firms from competition or preclude entry through regulation, suppressing speech becomes a whole lot easier. But I view this as a political failure, not a market failure. Absent government intervention, markets are quite capable of providing adequate forums for free speech, driven by consumer demand. When government stifles the emergence of business models based on unfettered speech, however, corporations gain the power to silence criticism without suffering the consequences. Again, this scenario underscores the importance of placing checks on government power.

    I do not wish to advance only those freedoms which allow corporations to enhance their power. It just so happens that the same freedoms which allow corporations to act as they wish–namely, the rights of private property and voluntary contract–are also essential liberties for individuals. Corporations are merely collections of individuals with pooled ownership. They deserve the same rights as anyone else, even if they grow large and powerful in some cases.

  • Ryan Radia

    Because corporations are ultimately driven by profit, as long as there's sufficient demand for networks allowing free speech, companies will respond by providing these networks.

    Enigma, I completely understand your concerns about the potential for corporations to censor important avenues of speech, but as long as government stays out I am confident that open and unrestricted networks will have a place in our society. Even us pro-business TLFers would surely be up in arms were an Internet Service Provider to censor content for no good reason. Still, I question the need for government intervention in cases where a private company chooses to restrict the flow of information on its own network. We should let the marketplace punish those who infringe upon free speech. And believe me, between vigilant bloggers, media watchdogs, and competitors, any ISP foolish enough to restrict speech on a sustained basis would learn its lesson swiftly and fiercely.

    I was incensed when GoDaddy blocked RateMyCop.com for some BS reason. GoDaddy took a lot of entirely justified bad press, and in researching the issue I became aware of a small hosting site called NearlyFreeSpeech.net, which offers an admirable set of policies guaranteeing that customers will not face any censorship except from government agencies.

    When AOL blocked the online petition critical of its spam policy, the problem was fixed in a matter of hours. When Verizon was found to be blocking text messages from abortion groups, it backed down after taking flak in the blogosphere. When a clause was found in AT&T's terms of service that allowed the company to cut off customers for criticizing AT&T, the terms were soon amended. All these examples of corporations making mistakes were resolved before regulators had a clue what was going on.

    While free, open networks are important, I don't see why networks which actively censor content shouldn't be able to coexist. The proposed M2Z plan, which I object to for a variety of reasons, would be just fine with me if it were to emerge as a result of an open auction. An ISP that touts itself as kid-friendly may have a place in the market, and there's nothing wrong with that. I, for one, would never subscribe to such an ISP, but if some parents would prefer server-side filtering, then I see no reason why government-mandated openness should preclude it.

    I have no problem with companies having the means to engage in censorship. The same ability that allows ISPs to block undesirable speech allows them to block spam, viruses, botnets, and other material that surely has no value even to the most ardent proponents of free speech.

    Besides, if my ISP censors content in a manner that I disapprove of, I will switch to a competing ISP. But I don't think I'll ever have to. The worst case scenario, in my mind, is that my ISP will make a bone-headed move that will get resolved fairly quickly

  • http://enigmafoundry.wordpress.com eee_eff

    Because corporations are ultimately driven by profit, as long as there's sufficient demand for networks allowing free speech, companies will respond by providing these networks.

    You don't enumerate all of the assumptions that are requisites for a market to create the outcomes you describe. One way to get there would be to describe in a more consistent vocabulary set your statement above, while describing the full range of variables that feed into your conclusion. Your conclusion, I think, will then be seen to apply to a special case where all necessary underlying variables have a certain set of values. I would make the case that the necessary preconditions for your conclusions do not now exist. Here's a brief attempt to do that:

    If it is more profitable than any other alternative paths of action, corporations will seek to maximize their profit.

    Included in the above set of alternative paths of action is the provision of a network allowing free speech.

    Given that corporations will seek to maximize their profits in all of their endeavors, they will balance the profitability of providing a network allowing free speech against the effects that such a network has on other business interests.

    The demand for a network allowing free speech is proportional to the value placed on free speech by market participants.

    Members of society are not all equal market participants, and they have different and conflicting interests in creating a network allowing free speech.

    The members of society most likely to benefit from the existence of a network allowing free speech are likely to be the least empowered market participants.

    Those who interests would not include the creation of a network allowing free speech would be the most inclined to hide the fact that the existence of such networks were threatened.

    The higher the number of market participants that exist, the more likely that one or more of the network providers will seek to differentiate themselves in the market by providing a network allowing free speech.

    This is really a short list.

    The key qualifier that you make, though is “as long as governments stay out” and that indicates a certain unwillingness to face the facts of the methods that corporations are using.

    It is notable, for example that you did n't mention the case of Telus, in which government and corporations acted in tandem to eliminate free speech.

    The Great Fire Wall of China is real; and with the support of Google, it isn't going anywhere anytime soon.

    Which raises a very interesting question, in my mind. Where are all the libertarian critics of China?

    I have found a great deal of support for China on TLF (usually in the case of those who don't criticize a corporation for aiding the communist regime) and in IPCentral (usually for having a strong IP regime)

    I would think, given libertarians self-proclaimed proclivity for freedom I would find some criticism of China here. But I don't. There is more criticism of Richard Stallman or the Free Software Foundation here, than there is of China.

    And that's because libertarianism has become empty, focusing only on those freedoms which will allow large corporations to increase there power, while any substantive freedoms which would empower individuals are largely ignored by libertarians

  • Ryan Radia

    I agree with you that free speech is but one of many considerations taken into account by corporations when making business decisions. Yet while there are plenty of opportunities for network operators to silence dissent and suppress unpopular views, such exercises in censorship are quite rare. And this is largely due to the potential for public backlash rather than government regulation. Those who benefit most from the ability to speak freely may be the least powerful members of society, but that does not mean that individuals in power do not also value free speech. The public relations nightmare that would likely ensue were an ISP to block a website for financial gain is enough to discourage censorship in most cases. Occassionally, of course, a company makes a bone-headed move, but in most cases the market course corrects quite quickly.

    When it comes to China, please do not conflate TLFers' support of American companies doing business in China with us supporting the egregious policies of the Chinese regime. Perhaps some of us should spend a bit more time criticizing China and a bit less time criticizing open software, but that does not mean for one minute that we condone the tyrannical policies of the Chinese government. I, for one, spoke out against the egregious violations of human rights perpetrated by Beijing during a recent interview with the E-Commerce times. China's lack of concern for free speech is deplorable, but that does not necessarily mean that American companies should be barred from conducting business in China. This is a difficult question, and it is one that many defenders of liberty have struggled with. I am inclined to believe that whether or not American firms do business in China, the end result will be the same. China will do as it pleases, without regard to American action, so we might endeavor to bring information to the Chinese people, even if that means being subject to the constraints of the Chinese regime. The alternative seems far worse. De-facto state enterprises are likely to fill any void that would result from the exit of Google and Yahoo from China.

    When government acts in tandem with corporations to insulate existing firms from competition or preclude entry through regulation, suppressing speech becomes a whole lot easier. But I view this as a political failure, not a market failure. Absent government intervention, markets are quite capable of providing adequate forums for free speech, driven by consumer demand. When government stifles the emergence of business models based on unfettered speech, however, corporations gain the power to silence criticism without suffering the consequences. Again, this scenario underscores the importance of placing checks on government power.

    I do not wish to advance only those freedoms which allow corporations to enhance their power. It just so happens that the same freedoms which allow corporations to act as they wish–namely, the rights of private property and voluntary contract–are also essential liberties for individuals. Corporations are merely collections of individuals with pooled ownership. They deserve the same rights as anyone else, even if they grow large and powerful in some cases.

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