Network Discrimination: The Phantom Menace?

I find it frustrating that advocates of network neutrality regulations are always so vague about what, exactly, they think the telecom companies would do if we preserve the status quo. Here’s the closest that Yochai Benkler has come (as of p. 240) in The Wealth of Networks to describing a specific threat:

As long as [broadband access is] open and neutral among uses, and are relatively cheap, the basic economics of nonmarket production described in part I should not change. Under oligopolistic conditions, however, there is a threat that the network will become too expensive to be neutral as among market and nonmarket production. If the basic upstream network connections, server space, and up-to-date reading and writing utilities become so expensive that one needs to adopt a commercial model to sustain them, then the basic economic characteristic that typifies the network information economy–the relatively large role of nonproprietary, nonmarket production–will have been reversed. However, the risk is not focused solely or even primarily on explicit pricing. One of the primary remaining scarce resources in the networked environment is user time and attention. As chapter 5 explained, owners of communications facilities can extract value from their users in ways that are more subtle than increasing price. In particular, they can make some sites and statements easier to reach and see–more prominently displayed on the screen, faster to load–and sell that relative ease to those who are willing to pay. In that environment, nonmarket sites are systematically disadvantaged irrespective of the quality of their content.

I’ve discussed the issue of blocking or slowing down sites here, so I won’t re-hash that discussion. I think the fear is overblown, but I can at least imagine how such a scheme might work. In contrast, his suggestion that a broadband ISP might make favored content “more prominently displayed on the screen” than non-favored content strikes me as fantastically implausible. I’m having trouble imagining an even halfway plausible scenario in which that might happen.

As anyone who’s actually used the web knows, your ISP doesn’t decide what web sites pop up on your screen. You choose web sites yourself, by typing their address in your address bar, or by clicking links from one web site to another. Your ISP has no control whatsoever over the size or positioning of your Windows. That’s controlled by your computer’s OS. The ISP can sometimes set a default home page, but that setting is easy to change in every browser I’ve ever seen, and that’s about the extent of ISPs’ influence on users web browsing habits.

Now, it’s true that in principle, an ISP could find ways to sneak its preferred content onto your screen. They could, for example, intercept web pages and replace the desired content with some of its own. So they might have a filter that detects websites coming from CNN.com and alters most of the links to point to Fox News channel stories. Or they could tack some JavaScript that causes a pop-up window to appear on your screen urging you to visit Fox News instead.

But there would be absolutely nothing subtle about such a policy. It would be an incredibly obvious and invasive strategy, and those users that couldn’t tell what was going on by direct observation would quickly hear about it from the media or from their geek friends. It would probably be accurately compared to the tactics of spyware vendors.

Moreover, it wouldn’t be especially effective. Reputable web sites would avoid the service like plague. No website wants to be known as “that annoying site that pops up when I’m trying to go to CNN.” Meanwhile, the ISP in question would quickly gain a reputation as the ISP that shoves content you don’t want down your throat. It would be a PR disaster with little or no financial upside.

I also don’t understand why he’s talking about the threat that “upstream network connections, server space, and up-to-date reading and writing utilities become expensive.” That is such a wildly implausible example that I’m not sure why he bothered to mention it. Web hosting companies and participatory web-based platforms like blogs, YouTube, MySpace, and Flickr operate in intensely competitive markets with dozens of alternatives. There’s absolutely no risk that any of those industries will become oligopolistic (or even close to it) in the near future.

So I’d be curious to see a specific, concrete hypothetical of what the pro-regulatory side’s dystopia looks like. What business strategy do they think that Verizon will pursue if they win this battle, and what effects will that have on the Internet’s openness? Benkler doesn’t appear to me to have given the issue much thought. He seems to regard it as self-evident that a company that controls a pipe will find it economically beneficial to manipulate the content on that pipe, but so far, at least, his argument has been at the 10,000-foot level. I suspect that when he tried to put some meat on the bones of his theory, he’d find that real-world discrimination is likely to be more challenging, less profitable, and less invasive than his simplistic model of the world suggests.

The question is important not just because it helps us understand the severity of the risks from inaction, but also because if we are going to enact regulations, it will help us craft them in ways that are narrowly tailored to address the most likely threats. It would be silly, for example, to erect a regulatory apparatus to prevent censorship of political views in blogs when even some supporters of regulation concede that isn’t a serious threat. I think it would greatly improve the quality of debate if we could narrow down precisely what the real threats are, rather than alarming people with fairy tales about Verizon blocking the websites of pro-lifers and gun owners.

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