Mistaken Moral Equivalency

by on November 25, 2009 · 17 comments

Former Google executive turned Obama administration deputy chief technology officer Andrew McLaughlin made some unfortunate comments at a law school technology conference last week equating private network management to government censorship as it is practiced in China.

By many accounts, President Obama’s visit to China was unimpressive. It apparently included a press conference at which no questions were allowed and government censorship of the president’s anti-censorship comments. On its heels, McLaughlin equated Chinese government censorship with network management by U.S. Internet service providers.

“If it bothers you that the China government does it, it should bother you when your cable company does it,” McLaughlin said. That line is wrong on at least two counts.

First, your cable company doesn’t do it. There have been two cases in which ISPs interfered with traffic in ways that are generally regarded as wrongful. Comcast slowed down BitTorrent file sharing traffic in some places for a period of time, did a poor job of disclosing it, and relented when the practice came to light. (People who don’t know the facts will argue that the FCC stepped in, but market pressures had solved the problem before the FCC did anything.) The second was a 2005 case in which a North Carolina phone company/ISP called Madison River Communications allegedly blocked Vonnage VoIP traffic.

In neither of these anecdotes did the ISP degrade Internet traffic because of its content—because of the information any person was trying to communicate to another. Comcast was trying to make sure that its customers could get access to the Internet despite some bandwidth hogs on its network. Madison River was apparently trying to keep people using its telephone lines rather than making Internet phone calls. That’s a market no-no, but not censorship.

Second, if the latter were happening, Chinese government censorship and corporate censorship would have no moral equivalency. In a free country, the manager of a private network can say to customers, “You may not transmit certain messages over our network.” People who don’t like that contract term can go to other networks, and they surely would. (Tim Lee’s paper, The Durable Internet: Preserving Network Neutrality Without Regulation, shows that ownership of networks and platforms does not equate to control of their content.)

When the government of China forces networks and platforms to remove content that it doesn’t like, that demand comes ultimately from the end of a gun. Governments like China’s imprison and kill their people for expressing disfavored views and for organizing to live freer lives. This has no relationship to cable companies’ network management practices, even when these ISPs deviate from consumer demand.

McLaughlin is a professional colleague who has my esteem. I defended Google’s involvement in the Chinese market during his tenure there. But if he lacks grounding in the fundamentals of freedom—thinking that private U.S. ISPs and the Chinese government are part of some undifferentiated mass of authority—I relish the chance to differ with him.

  • flamsmark
  • http://www.techliberation.com Adam Thierer

    Outstanding piece, Jim. Everyone should also check out this excellent essay on the same issue by Larry Downes, in which he says:

    “McLaughlin has it backwards. The First Amendment protects even bad business decisions from interference by the government. “Free speech” doesn’t underlie the open network. Rather, it restricts the FCC from telling access providers what content they can or cannot promote or block.

    Thank goodness it does. Because there’s absolutely no doubt what the government would do if it had that power. In the last ten years, administrations under both Republican and Democratic control have passed three different laws banning “indecent” content from appearing on the Internet. (President Clinton signed the first and worst of these, “The Communications Decency Act.”) State governments have tried even more offensive “experiments” with controlling Internet content…

    The Supreme Court rejected two of the federal laws as violations of the First Amendment; the third was narrowly upheld as a restriction on libraries accepting government funding. The FCC, meanwhile, still relishes its narrowly-allowed content control powers over broadcast television to ensure errant nipples and swear words don’t appear on live broadcasts.

    It’s more than a little ironic that the White House is accusing cable companies of Chinese-style censorship for twice blocking bandwidth-hogging peer-to-peer applications. All the evidence we have is that it is the government that would have done the real damage to the free flow of information on the Internet. Would have, that is, if they hadn’t been blocked by the First Amendment.”

  • http://twitter.com/flamsmark Tom L.

    Unfortunately — in the US, at least — there's a problem with your statement that “People who don’t like that contract term can go to other networks, and they surely would.'' When there's only one ISP serving a particular area, or a duopoly, which share such network management practices, market regulation of this behaviour through competition simply cannot occur.

    Further, in the US, government investment has led development of much of our current internet infrastructure. The implicit deal is `we subsidize the rollout; you provide internet access'. If those companies then provide materially censored or limited internet access, they are effectively reneging on that deal, despite their ostensibly private status.

  • amclaughlin

    I hate to pop a fun argumentational bubble, but the moral equivalency point is a straw man — I've never advanced that argument, never would.

    Rather, my point was about the implications of technical equivalence. In other words, the techniques of network-level content filtering are the same (more or less, depending on implementation) whether the ISP is doing political censorship, or reasonable traffic management. That's why the FCC's current inquiry is so important — to establish principles by which we can bless essential network management techniques while disallowing those that would damage competition, innovation, and users' freedom of expression.

    What's interesting about this debate is the way all sides seem to agree about the edge cases (it would be bad for ISPs to restrict website access based on content; it would also be bad if ISPs couldn't reasonably manage their networks), but disagree about where precisely to draw the line. In that situation, one would expect the debate to converge around the details, but instead we keep seeing different sides rush joyously to tear down cartoonish straw men (like, ahem, nonexistent “moral equivalency” claims). The real meat of this debate, IMHO, lies in the detailed questions posed the FCC.

    Happy Thanksgiving! (And all power to shields, Mr. Scott!)

    –andrew

  • http://www.cato.org/people/jim-harper Jim Harper

    @Tom L – I agree that more competition is a better protection against unwanted network management practices. Indeed, I think it should be THE protection against unwanted network management practices. Because FCC processes are and will be highly influenced by existing providers, you can expect that regulation will favor incumbents and reduce competition. If you haven't read Tim Lee's paper, linked above, I really, really suggest that you do.

    Same goes for you, Andrew. Thanks for your reply. But I think your parry of the moral equivalency argument actually fails to dispel it. Given the technical equivalency of Chinese censorship and U.S. ISPs' network management, a person recognizing the moral distinctions would say: “If it bothers you that the China government does it, it should NOT bother you when your cable company does it.” This is because the purpose when China does it is oppressive and morally wrong. The purpose when ISPs do it is customer service which is morally right (if poorly directed in rare instances).

    Some disagree, but I think (as does Tim Lee – read his paper) that neutrality is a good architectural principle that should generally be maintained. But the better enforcement mechanism is to have engineers — driven by ISP owners who are driven by Internet users — maintain the networks.

    You obscure the key point when you characterize the project as “establish[ing] principles by which we can bless essential network management techniques.” Who is “we”? If by “we” you mean the government, that's one side of the debate. If by “we” you mean consumers, that's the other side. The search for a line between good and bad network management is not the key issue.

    The key issue is whether the U.S. government will manage networks or whether the private sector will manage networks. Everyone would hope that the U.S. government would do a good job of it and would be more beneficent than the Chinese government, but the regulatory process has not proven to be foresighted and nimble in the past, and times can and do change. U.S. government control of networks could prove to be a ghastly mistake in our unknown future.

    Engineers working for consumers will do a better job of running networks. Insulating networks from government control is good civic hygiene. It's wrong to build technical infrastructure that is amenable to totalitarianism, and your comments reveal that government network neutrality regulation is a step in that direction.

    Thanks again for your reply. Please stay curious and willing to learn. Most people in your position abandon curiosity, thinking that by dint of role their job is to teach, to manipulate if needed, and, when the chips fall, to dictate.

    (P.S. Trekkie geek!)

  • amclaughlin

    > “It's wrong to build technical infrastructure that is amenable to totalitarianism.”

    Agreed! Ergo, the FCC proceeding to assess whether and when arguably-useful-but-potentially-abuse-able forms of packet discrimination should be considered to cross the line. [See, we're narrowing our differences. :-)]

    > “The purpose when ISPs do it is customer service which is morally right (if poorly directed in rare instances).”

    We seem to be using two definitions of “it”. The “it” in my (semi-de-contextualized, but that's another matter) quote is “political censorship”. I argue that's bad wherever it happens. The “it” in your quote above seems to be “reasonable network management”, which leads you to label “it” as a “customer service”. Using my “it”, how would you write that sentence?

    > “But the better enforcement mechanism is to have engineers — driven by ISP owners who are driven by Internet users — maintain the networks.”

    Do you give credence to a scenario where ISP packet discrimination (and I mean that in a morally neutral sense) practices might be driven not by their users or engineers, but rather by opportunistic, scarcity-enabled rent-seeking in the form of, e.g., exclusive deals that benefit one competitor among the many?

    –andrew

  • mwendy

    Andrew, I think the FCC has backed itself into a corner. It's asking for a freebie of sorts – no discrimination (para. 106 in the NPRM) for owners of information service networks, basically taking away valuable private property rights without compensation (even in light of reasonable network management, and other managed exceptions in the NPRM).

    While this might work in a common carrier scenario – where a common carrier's charges and practices are regulated; there would be compensation for such access – in the new scenario, outside of Title 2, I think the FCC runs afoul of not only the '34 / '96 T-Com Act, but also the 1st and 5th Amendments of the US Constitution.

    I guess the short of it – Chevron deference only goes so far. Congress, not the FCC, should give the FCC clearer authority in this (very) murky area. Lacking this authority, the FCC performs its own version of “censorship,” albeit in a more benign sense than the Chinese.

  • skillsss

    Comcast Censoring Conservative Voices?
    by skillsss

    The American Public and the FCC need to keep an eye on ISPs. Comcast has been censoring conservative message board posters in my opinion. Because dominant ISP Comcast is a gateway to the internet, they control many eyeballs. Comcast's systematic censoring of conservative opinions on their News & Current Events message boards needs to cease and desist. If Comcast gets tax breaks from local government, then they have a civic, ethical, moral and perhaps legal obligation to provide fair and balanced moderation of their message boards. This type of social engineering is an outrage. Please get involved. Silence is consent. Post a conservative response to a News or Current Events thread here and see for yourself.

    http://community.comcast.net/comcastportal/boar

    This is America…Not CHINA

  • http://www.cato.org/people/jim-harper Jim Harper

    Thanks, skillsss, for showing how close the demand for net neutrality regulation is to asking for direct government censorship on the Internet. Comcast's message boards are theirs to administer as they see fit. It is not the government's role to referee how they do that.

    And thanks for your further reply, Andrew. It highlights, and alas does not narrow, our differences. Because the fulcrum, once again, is who should decide how networks are managed, not what are good and bad network management practices.

    Technical Infrastructure Amenable to Totalitarianism

    I take it you believe that corporate control of networks is more amenable to totalitarianism than government control of networks. Really? In what scenario does government control of network management inure networks against government control of content? I would think that having networks never answer to government would make them the most resistant to government control.

    But perhaps you mean “corporate totalitarianism” (a concept that is wordplay to me because governments monopolize the use of force). I suppose it's possible to imagine a situation where a “corporate dominated media” has effects here in the U.S. something like China's government does in China. But that's quite an exercise in imagination (which doesn't stop many on the far left, I guess). Do you think that China's network management, censorship and all, is preferable because the government is protecting the people from corporate dominated media?

    “It”

    Originally, I took “it” to be your conflation of network management by private ISPs in the U.S. with government censorship in China.

    I was willing to take the definition of “it” in your first comment: “the techniques of network-level content filtering.”

    But your latest definition – “political censorship” – reinforces my point about moral equivalency. You appear to see packet-based discrimination by private U.S. ISPs as equivalent to government censorship in China. They are not. China imprisons and kills people who organize or air views contrary to government policies. If they did content-based discrimination, ISPs would simply drive people to other services. This is not worrisome. Indeed, we should foster competition to increase the likelihood, which is a risk to ISPs, not people.

    The Better Enforcement Mechanism

    Competition is the better enforcement mechanism. I do give credence to the possibility of scenarios where ISP packet discrimination might be driven by opportunistic, scarcity-enabled rent-seeking – exclusive deals that benefit one competitor (the “preferred” video service of the ISP, for instance).

    For reasons articulated well in Tim Lee's paper (again, please read, all), I think such arrangements would fail in the marketplace. But let's put a lens on the agar in which that kind of arrangement might grow.

    Corporate opportunism? The adjective “opportunistic” doesn't really add or detract. Let's put aside whether businesses are simple economic machines or whether they can be imbued with some kind of moral core. (We can be certain to hear from TLF regular “Steve R” on that score.)

    Scarcity? Similarly, not the key point. All selling is scarcity-enabled, just like all buying is scarcity-driven. The question is what produces, and what alleviates, the scarcity that would strengthen the hand of now-dominant ISPs.

    Rent-seeking. In modern economic parlance, “rent-seeking” is the pursuit of profit not from productive activity, but from capturing special monopoly privileges, such as through government regulation. If you meant it that way, I'll take it as an admission that existing regulation – tight government control of spectrum, for example – has created artificial scarcity in broadband and thus paved the way for whatever unattractive, non-neutral deals ISPs might try to enter into.

    The solution, of course, is not to let bad policies affecting broadband availability today metastasize into network management regulation, but to reduce the regulatory intrusions that reduce competition, don't you think? I imagine you don't. But I'm curious as to why.

    Following their natural economic incentives, government officials almost always choose the path that increases government power. It would be doubly contrary to your incentive structure to a) reduce government control over spectrum so as to b) reduce the need for regulation of ISPs. But such incentives have been overcome in the past. I think Ira Magaziner did so when he helped put a wall between the DNS and the U.S. government, something you're intimately familiar with (including its warts).

    Perhaps Magaziner was so circumspect because he was stung by the failure of the Clinton health care plan. By extrapolation, we have only to wait for the failure of Obamacare to see net neutrality regulation abandoned in favor of policies that permit new broadband platforms and platform-based competition…. ;-)

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Be careful, Andrew, just how far you define-down “totalitarianism” and “censorship.” Google itself is increasingly being branded with both terms—unfairly, in my opinion. But once you depart from the clear definition of “censorship” as something only governments can do with territorial monopoly on the (lawful) use of violence, you quickly headed down a very slippery slope, with any popular network operator being accused of exercising “gatekeeper” power, with the end result being broad “neutrality” mandates for all players.

    As Adam Thierer and I recently warned in our Forbes.com editorial, Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction:

    Sincere defenders of real Internet Freedom—that is, freedom from government techno-meddling—recognize that there will always be disputes over how companies deal with each other online across all layers of the Internet. The question is not whether we need a technical coordinating mechanism for handling such disputes. Someone should mediate conflicts over alleged deviations from abstract neutrality principles. But should that arbitrator be an inherently political body like FCC? Or should we instead look to truly independent, apolitical arbitrators like the Internet Engineering Task Force or collaborative efforts like the Network Neutrality Squad? Such alternative dispute resolution mechanisms and fora need not have the power of law to be effective: The weight of their expert opinion, based on careful investigation of the facts, would likely resolve most disputes, because companies have strong reputational incentives to comply with reasoned rulings by truly neutral experts. And the white hot spotlight of public attention has a way of disciplining marketplace behavior as well.

    Government would still have a role to play, of course, in enforcing antitrust laws where anticompetitive harm to consumers can be proven, and in enforcing the promises companies make to consumers. Ultimately, however, certain business models and technologies require non-neutral treatment, and the best remedy for concerns about non-neutrality is competition itself: In the high-tech sector more than any other, disruptive innovation makes it difficult for even the most successful companies to stay on top forever. Competitive entry—or even the threat of new entry—provides a powerful check on the power of so-called “gatekeepers,” but even more important is the prospect that today’s leaders will be tomorrow’s laggards: There’s little reason to think Google (search and advertising), Apple (smart phones and music) and Facebook (social networking) won’t someday find themselves playing catch-up, just as IBM (computers), Microsoft (desktop software and search), Friendster and MySpace (social networking), and Yahoo! and AOL (web portals) have had to do.

    “Digital Détente” would require that all parties concede something and work constructively toward a more “peaceful” (i.e., less regulatory) resolution. And yet, no Internet company wants to disarm unilaterally, foreswearing politics as a continuation of competition by other means. Only through multilateral disarmament could they break out of the current cycle of regulatory one-upmanship: If the companies in the Internet ecosystem could form a united front against increased government regulation and in favor of removing existing regulatory obstacles to competition, they could all return to their core competencies of creativity and innovation.

    The alternative is a regulatory “nuclear winter”: high-tech titans turning their political fire on each other, catching innocent third parties in the cross-fire and bringing a dark cloud of government regulation over the entire Internet. Such increased regulation would stifle investment and innovation throughout the Internet ecosystem. Thus, it is consumers who will ultimately suffer most from the tech industry’s suicidal impulse, as their choices and digital lives are impoverished. For their sake, we hope all industry players will step back from the brink to avoid such high-tech mutually assured destruction.

  • skillsss

    The government has been colluding with ISPs for years. The FCC caters to the industry they are supposed to regulate at the expense of the tax payer. Lets see the Patriot act, tax breaks and broken promises of broadband for all. I will say it again …If Comcast gets tax breaks from local government, then they have a civic, ethical, moral and perhaps legal obligation to provide fair and balanced moderation of their message boards. Paint it as a “private network” all you want…it is still BS. I don't want tax cuts given to these monsters unless they can live up to the promises and civic responsibilities. Hows about no more enabling these companies if they can't serve the public as advertised before our local communities give them tax breaks? Sound fair and reasonable???

    http://www.newnetworks.com

    The FCC is a bigger Joke than the SEC. Its called the Fleecing of America.

  • skillsss

    The government has been colluding with ISPs for years. The FCC caters to the industry they are supposed to regulate at the expense of the tax payer. Lets see the Patriot act, tax breaks and broken promises of broadband for all. I will say it again …If Comcast gets tax breaks from local government, then they have a civic, ethical, moral and perhaps legal obligation to provide fair and balanced moderation of their message boards. Paint it as a “private network” all you want…it is still BS. I don't want tax cuts given to these monsters unless they can live up to the promises and civic responsibilities. Hows about no more enabling these companies if they can't serve the public as advertised before our local communities give them tax breaks? Sound fair and reasonable???

    http://www.newnetworks.com

    The FCC is a bigger Joke than the SEC. Its called the Fleecing of America.

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