Looking for a concise overview of how Internet architecture has evolved and a principled discussion of the public policies that should govern the Net going forward? Then look no further than Christopher Yoo‘s new book, The Dynamic Internet: How Technology, Users, and Businesses are Transforming the Network. It’s a quick read (just 140 pages) and is worth picking up. Yoo is a Professor of Law, Communication, and Computer & Information Science at the University of Pennsylvania and also serves as the Director of the Center for Technology, Innovation & Competition there. For those who monitor ongoing developments in cyberlaw and digital economics, Yoo is a well-known and prolific intellectual who has established himself as one of the giants of this rapidly growing policy arena.
Yoo makes two straight-forward arguments in his new book. First, the Internet is changing. In Part 1 of the book, Yoo offers a layman-friendly overview of the changing dynamics of Internet architecture and engineering. He documents the evolving nature of Internet standards, traffic management and congestion policies, spam and security control efforts, and peering and pricing policies. He also discusses the rise of peer-to-peer applications, the growth of mobile broadband, the emergence of the app store economy, and what the explosion of online video consumption means for ongoing bandwidth management efforts. Those are the supply-side issues. Yoo also outlines the implications of changes in the demand-side of the equation, such as changing user demographics and rapidly evolving demands from consumers. He notes that these new demand-side realities of Internet usage are resulting in changes to network management and engineering, further reinforcing changes already underway on the supply-side.
Yoo’s second point in the book flows logically from the first: as the Internet continues to evolve in such a highly dynamic fashion, public policy must as well. Yoo is particularly worried about calls to lock in standards, protocols, and policies from what he regards as a bygone era of Internet engineering, architecture, and policy. “The dramatic shift in Internet usage suggests that its founding architectural principles form the mid-1990s may no longer be appropriate today,” he argues. (p. 4) “[T]he optimal network architecture is unlikely to be static. Instead, it is likely to be dynamic over time, changing with the shifts in end-user demands,” he says. (p. 7) Thus, “the static, one-size-fits-all approach that dominates the current debate misses the mark.” (p. 7)
Yoo makes a particular powerful case for flexible network pricing policies. His outstanding chapter on “The Growing Complexity of Internet Pricing” offers an excellent overview of the changing dynamics of pricing in this arena and explains why experimentation with different pricing methods and business models must be allowed to continue. Getting pricing right is essential, Yoo notes, if we hope to ensure ongoing investment in new networks and services. He also notes how foolish it is to expect the government to come in and save the day thought massive infrastructure investment to cover the hundreds of billions of dollars needed to continue to build-out high-speed services:
Most industry and political observers believe that the federal government will not be in a position to allocate that amount of money to upgrade our nation’s broadband infrastructure for the foreseeable future. The next-generation network will thus be built by private enterprise. But private corporations cannot be expected to undertake such investments unless they have a reasonable prospect of recovering their upfront costs from consumers who are using the increased bandwidth and other enhancements to the existing network. (p. 102)
Again, that’s why flexible pricing policies and ongoing experimentation with various business models is vital. This insight is particularly timely in light of the recent renewed interest in data caps. A lot of people who don’t know a lick about economics and have never run a real business in their lives are seemingly obsessed with telling private operators how to run theirs. If the Net neutrality wars devolve into a battle over price controls — exactly as I predicted they would 7 years ago this month — then we could be headed for a day when federal policymakers derail the advances in broadband we’ve seen in recent years by substituting mandates for markets.
Throughout the second half of his book, Yoo explains why that would be a disaster for consumers and high-tech innovation. To most of us, the arguments Yoo advances here are perfectly logical, but to many Ivory Tower intellectuals who dominate Net policy debates today, it will all be considered apostasy of the very highest order. Those that elevate Net neutrality and so-called “public interest” regulation to quasi-religious concepts will likely be constructing Christopher Yoo voodoo dolls and attempting to sew his mouth shut. Yet, the policy standard Yoo is advancing here is perfectly logical. In essence, he’s trying to counter the gradual growth of a Precautionary Principle mindset for Internet policy. Here’s how he puts it:
Just as engineers must design structures that preserve room for experimentation, so must regulators. In particular, regulators should avoid promulgating policies that foreclose certain technical approaches or require industry actors to obtain advance approval before they can experiment with new technological solutions. The benefits of most practices will remain ambiguous before they are deployed, and placing the burden on industry actors to prove consumer benefit before implementation would chill experimentation and effectively prevent ambiguous practices from ever being deployed. This in turn would prevent engineers from obtaining the real-world experience they need to evaluate different technological solutions and eliminate the breathing room on which technological progress depends. In the face of uncertainty, policymakers should not attempt to predict which particular network solution will ultimately prevail; rather, they ought to focus on creating regulatory structures that give industry participants the freedom to pursue a wide range of business strategies and allow consumers to decide which one (or ones, if consumer demand is sufficiently diverse to support multiple business models targeted at different market niches) ultimately proves to be the best.” (p. 8)
In other words, public policy must not restrict experimentation based on conjectural fears and boogeyman scenarios. Public policy should generally seek to avoid ex ante forms of preemptive, prophylactic Internet regulation and instead rely on an ex post approach when and if things go wrong. As I have argued here many times before, as a general rule, our policymakers should embrace “techno-agnosticism” toward ongoing debates over standards, protocols, business models, pricing methods, and so on. Lawmakers should not be preemptively tilting the balance in one direction or the other or, worse yet, restricting experimentation that can help us find superior solutions. Here’s how Yoo articulates this same principle of techno-agnosticism:
network engineering is inherently an exercise in tradeoffs that does not lend itself to broad generalizations. There is no such thing as a perfect, inherently superior architecture. Instead, the optimal infrastructure for any particular network depends on the nature of the flows passing through the network as well as the costs of the technologies comprising the network. This perspective stands in stark contrast to the categorical tone that has dominated debates over Internet policy for the past five years. (p. 138)
Indeed it does. If you read through books by Zittrain, Lessig, Wu, van Schewick, Frischmann, and others, you will notice the consistent assertion that we already have the magic formula for the Internet and all networks, for that matter. It almost always comes down to what I have referred to as an ideology of “openness at any cost” or “neutrality uber alles.” In this religion, everything is subservient to openness and neutrality, no matter what the cost (and no matter how defined, even if that is much trickier than those academics let on). But for all the reasons Yoo lays out in his book, we should reject neutrality uber alles as the basis of public policy. “The shifts in the technological and economic environment surrounding the network should remind everyone involved in Internet policy of the importance of embracing change.” (p. 139). Again, that counsels techno-agnosticism and light-touch, responsive regulation — not a preemptive Precautionary Principle for Internet decision-making. As Yoo states in his conclusion:
Perhaps the best means for creating such an environment is to create a regulatory-enforcement regime that evaluates any charges of improper behavior on a case-by-case basis after the fact… So long as the burden of proof is placed on the party challenging the practice, such a regime should provide sufficient breathing room for industry participants to experiment with new solutions for emerging problems while simultaneously safeguarding consumers against any anticompetitive practices. (p. 139).
And even under that regime, Yoo makes it clear throughout the book that there should be a very high bar established before regulation is pursued. This is particularly true because of the First Amendment values at stake when the government attempts to regulate speech platforms. In Chapter 9 of the book, Yoo walks the reader through all the relevant case law on this front and makes it clear how “the Supreme Court has repeatedly recognized that the editorial discretion exercised by intermediaries serves important free speech values.” (p. 120). Yoo also makes the case that a certain degree of intermediation helps serve consumer needs by helping them more easily find the content and services they desire. Law should not seek to constrain that and, under current Supreme Court First Amendment jurisprudence, it probably cannot.
So, in conclusion, I strongly encourage everyone to pick up a copy of Christopher Yoo’s Dynamic Internet. It strikes just the right balance for Net governance and public policy in the information age. It all comes down to flexibility and freedom. If the Internet and all modern digital technologies are to thrive, we must reject the central planner’s mindset that dominated the analog era and forever bury all the static thinking it entailed.
- The Real Net Neutrality Debate: Pricing Flexibility Versus Pricing Regulation (Oct 2005)
- More on Net Neutrality, the Importance of Business Model Experimentation & Pricing Flexibility (May 2012)
- Smartphones & Usage-Based Pricing: Are Price Controls Coming? (July 2011)
- Netflix Falls Prey to Marginal Cost Fallacy & Pleads for a Broadband Free Ride (July 8, 2011)
- Why Congestion Pricing for the iPhone & Broadband Makes Sense (October 7, 2009)
- The (Un)Free Press Calls for Internet Price Controls: “The Broadband Internet Fairness Act” (June 17, 2009)
- Free Press Hypocrisy over Metering & Internet Price Controls (June 18, 2009)
- Mueller’s “Networks and States” = Classical Liberalism for the Information Age (Nov. 2010)
- Doctorow’s Definition of “Techno-Optimism” Is Full of Fear & False Choices (May 2011)
- review of Zittrain’s “Future of the Internet” (March 2008)
- Code, Pessimism, and the Illusion of “Perfect Control” [review of Lessig’s “Code” at 10th anniversary] (May 2009)