Broadband & Neutrality Regulation

I’ve got a new article on the deceptive campaign to regulate the Internet over at Brainwash:

Last month, Rep. Ed Markey warned that “We’re about to break with the entire history of the Internet.” He’s right, but not in the way he intends. The Internet has evolved without significant government oversight for over a decade, and it has never had the kind of comprehensive bureaucratic control envisioned by network neutrality advocates. That has left questions about Internet architecture and evolution in the hands of engineers and entrepreneurs, not lawyers, lobbyists and bureacrats. Network neutrality regulations would change all that, placing decisions about the Internet’s architecture under the control of bureaucrats at the FCC. Of course, a “Put Bureaucrats in Charge of the Internet” campaign would be unlikely to catch the popular imagination. So instead of making a serious case for their proposal, advocates of new regulations are pretending that it’s opposite day: those who want to maintain the status quo are pushing “radical” laws, a coalition led by Microsoft and Yahoo is a “rag tag band,” and one tiny ISP’s attempt to block Internet voice services is a looming threat to the Internet’s future. There might be good arguments for government regulation of the Internet, but if we’re going to have a meaningful discussion of the idea, we need to start by calling a spade a spade.

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One of the most useful websites I know of is snopes.com, which provides information and analysis of e-mails circulating on the Internet, from the “Bill Gates is Giving Away Money” hoax to the famous 602B e-mail tax bill. Among other things, Snopes ranks the e-mails based on circulation and other factors. Currently, the number five hottest email–beating out warnings about ether-laced perfume and the dangers of rat urine on soda cans–is a missive in support of net neutrality regulation circulated by Move.on org.

The surprising appearance of net neutrality–which until very recently was a term known only to hopeless tech geeks and policy wonks–is a worrying evidence of the efforts being made by Move.on and others in support of Internet regulation. And, unfortunately, for most who get this e-mail, and forward it on–it may be the only thing they hear of the controversy.

Of course, the issue is not fictional–unfortunately the push for regulation is no urban legend. Although Snopes classifies it as “true,” the e-mail does get some important facts wrong. For instance, it says Congress is considering “a radical law” to eliminate net neutrality. In truth, there currently are no neutrality rules in place. Moveon.org is asking for new regulations to be imposed. At the same time, the letter warns darkly of “giant corporations” who are fighting these rules, but doesn’t mention the rather large firms–including Microsoft–who are fighting to have these restrictions imposed on their potential rivals.

Its hard to follow up on mass-forwarded e-mails like this to explain the other side of the debate. (Though it wouldn’t hurt if sympathetic readers forward\ed on relevant posts from TLF–such as this, this, this, this, this, this or this–or perhaps this from Heritage, as a counter-point.)

In any case, it is clear that this debate has passed beyond the small world of telecom wonks, and is now squarely in the public eye–or at least the public’s inbox. And the outcome of this battle over Internet regulation may depend upon the Internet itself, and all of its advantages and flaws as a medium of mass communication.

Stay tuned. This should be interesting.

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When it comes to the issue of Net neutrality–or what my PFF colleagues more appropriately call “Net neutering“–it seems like a lot of people are forgetting the old lesson that there is no such thing as a free lunch in this world. The latest example of this is summarized in this Reuter’s article discussing the possibility of the financial sector potentially gearing up to jump into the “Capitol Hill fight over the future of the Internet [to] stop an effort it says could add billions in costs just to maintain current offerings.”

The article mentions that Washington lawyer Philip Corwin, a partner at the law firm Butera & Andrews, has been circulating a memo to financial services industry officials warning that “Net neutrality is an issue that (financial services) firms ignore at their peril” because it would supposedly give Internet service providers a green light to impose big new fees on financial companies. Corwin says “all will suffer” and that today’s ISPs will become “gatekeepers” and an “electronic post office.” To counter this supposed parade of horribles, the Corwin memo counsels that the financial services sector should immediately push legislation in the House and Senate committees they regularly deal with that would assure the continuation of flat high-speed Internet pricing for online financial services.

What we’re talking about here, of course, is price controls for the Internet. Corwin’s memo and recent editorial in The American Banker both confirm what I’ve long suspected: that the entire Net neutering debate is really a debate about pricing freedom. And now, the financial services industry–one of the pillars of the American capitalist system–is apparently thinking about taking this freedom away from another corporate sector to advantage itself.

Continue reading →

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Tim Berners-Lee has a good article on the importance of network neutrality. He does a good job of explaining why it’s an important principle, and how it was crucial to his creation of the World Wide Web. But his conclusion is frustrating:

To actually design legislation which allows creative interconnections between different service providers, but ensures neutrality of the Net as a whole may be a difficult task. It is a very important one. The US should do it now, and, if it turns out to be the only way, be as draconian as to require financial isolation between IP providers and businesses in other layers.

Policy is about trade-offs. To endorse a legislative end without giving serious thought to the means is a recipe for disaster. The details of the legislative approach matter a lot: it’s likely that any attempt to regulate network neutrality will have some unintended consequences, and so we need to look at a specific piece of legislation and figure out what those unintended consequences might be. Yet a lot of people supporting the concept don’t seem very interested in any of those messy details. They figure that once we’ve convinced people that network neutrality is a good thing, we can let the telecom nerds work out how to enact that moral conviction into law. If they get their way, I bet a lot of them will be surprised to discover that the real-world results of their crusade aren’t anything like what they had envisioned.

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MoveOn.org. The Consumer Federation of America. Consumers Union. The list of members of the new SavetheInternet.com Coalition are a mostly unsurprising bunch. Mostly left-of-center, many of whom have never met a regulation they didn’t like. But then comes the Gun Owners of America. Whoa. As Cynthia Brumfield over at IPDemocracy put it “huh? how’d they get in there?”

Last time I checked, the second Amendment referred to a “well-regulated Militia” being important. I didn’t catch the part about a regulated Internet. Yet, there was GOA, pushing for wide-ranging government controls on how network providers run their networks. Craig Fields of the group explained their position this way:

“Gun Owners of America opposes any attempt to limit or curtail political speech. Without statutory network neutrality, there is nothing to prevent big telecom companies from injecting political bias into the very skeleton of modern communications. If the telecoms believe they can frame opposition to their power grab as a liberal or anti-free-market attack, they are sadly mistaken.”

It’s hard to know where to begin with this. First, no one is talking about limiting political speech, and if Verizon or AT&T has an anti-gun bias, its news to me. (AT&T is based in Texas, for gods sake.) In any case, does anyone think that the way to protect political speech is to give the FCC more power? Someone should give these people a lesson in FCC history.

But the real eycatcher here is the assertion that this isn’t a free-market attack. Whether you support net neutrality regulations or not, you must acknowledge that they are regulations. If you think they are necessary, that’s one thing, but don’t pretend this is a “free market” initiative. It’s anti-market, no matter how many lofty references to speech you make. Fields himself gave away the game when said, regarding how the Internet market works, “even if you leave political bias out of it, simple greed takes over.” So much for the marketplace.

In other words, GOA is saying that the same government that can’t be trusted to regulate our guns somehow can be trusted to regulate the Internet. Leave our handguns alone, but go ahead and take control of the greatest engine for innovation in history.

A surpising position indeed.

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Apropos Adam’s post about network neutrality and the first amendment, one of the cleverest things about the pro-network-neutrality campaign is the way they’ve been able to subtly portray themselves as defending the status quo against greedy telecom companies. We’re told that network neutrality is “the First Amendment of the Internet,” but “Internet provides like AT&T and Verizon are spending millions of dollars lobbying Congress to gut net neutrality.”

The fundamental problem that net neutrality advocates have is that theirs is a solution in search of a problem. Check out their list of “numerous examples” of net neutrality abuse:

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 who want to use a competing Internet telephone service.

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

For those keeping score at home, that’s two incidents in Canada (which, last I checked, is not within Congress’s jurisdiction) and a third that was most likely an honest mistake. So their “numerous examples” of net neutrality abuse in the US amount to one alleged incident by an ISP in North Carolina that no one has ever heard of. That hardly sounds like a looming crisis.

Which creates a problem, because they know that without a sense of urgency, Congress will (justifiably) take a wait-and-see attitude. So to generate that sense of urgency, they’ve taken a page out of Mr. Orwell’s book: those of us who think Congress should leave well enough alone are trying to “get rid of net neutrality.” Telecom companies who don’t want the FCC telling them how to run their networks are trying to get “special rules written in their favor.” On the other hand, those who advocate intrusive new govenment regulations are just trying to “preserve the freedoms we currently enjoy on the Internet.”

But war is not peace and freedom is not slavery. It’s the “save the Internet” coalition, not its opponents, who are seeking to fundamentally change the Internet by giving new powers to government regulators. The looming threat here isn’t from corporate control (which Congress can step in at any time to curtail) but from government control (which, once established, is unlikely to ever be repealed). Maybe it’s a good idea to expand governmental regulation of the Internet, but if so, the supporters of doing so should call a spade a spade.

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Cory Doctorow has a great post about the merits of network neutrality legislation:

What we’re talking about here is getting the FCC to write up rules dictating what firewall rules ISPs can and can’t have. I’m an ISP right now–my laptop is WiFi rebroadcasting the Ethernet Internet access I’m getting at my hotel. Anyone can be an ISP. Do we really want the Feds to tell us what we can and can’t do with our network configurations? Do we believe that they can move fast enough and smart enough to do a meaningful job of it?

Art Brodsky at Public Knowledge responds:

This is not about someone picking up a Wi-Fi signal in a hotel room and considering that to be an ISP. This debate doesn’t apply to Cory in his hotel room, and if that’s his concern, the definition of an ISP could be tightened to clarify he’s not offering service to the public as the law considers it. The current legislation, and the Net Neutrality debate, applies to the network operators which have the ability to discriminate.

Obviously, the FCC isn’t going to regulate Cory Doctorow’s laptop. But with all due respect to the otherwise astute Art Brodsky, these are precisely the kind of questions that’s likely to transform a seemingly clear standard into hopeless muddle once it’s turned over to the FCC. For example, is the hotel an ISP? What about Starbucks, which provides Internet access to hundreds of thousands of people through wireless access points? What about airport WiFi services?

And regardless of how the FCC decides those questions (and you can bet there’ll be intensive lobbying and litigation over the question) it will amount to the FCC deciding what firewall rules those ISPs are allowed to employ. Is the ISP allowed to take aggressive measures to block spam and spyware? Can it block peer-to-peer file-sharing services? Can purchase network equipment that increases the “jitter” in its networks, thereby discouraging VoIP services? If not, is the FCC going to make up a list of approved networking gear?

Now, I’m sure that for each of those questions, Brodsky has a reasonable answer and would tell us that Congress needs to “tighten up” the relevant definition to make sure that the FCC doesn’t come to an unreasonable conclusion. But that’s not the way politics works.

When Congress passed the 1996 telecom bill, it created a distinction between a “telecommunications service,” which was regulated under common-carriage rules, and an “information service,” which was mostly deregulated. The distinction seemed pretty clear at the time: telecom services carry voice, while information services carry data. But of course, it only took a couple of years before people started carrying voice over their data line, and transmitting data over old copper phone lines. The distinction became incoherent, and required a decade of litigation to resolve.

I’m sure that given the current state of technology and the current configuration of the telecom industry, Brodsky has a clear understanding of who’s an ISP and what counts as “discrimination.” It’s possible he’s right, although I’m skeptical. But even if he has a clear idea of how the rules should apply today, he can’t possibly be sure that the definitions Congress comes up with now will make sense in 10 years. Perhaps Cory’s laptop won’t be declared an ISP, but it’s a safe bet that some company will come along whose ISP status is ambiguous and lead to a lot of unnecessary litigation.

Frankly, I don’t understand what the big hurry is. Comcast and AT&T can’t break the neutral Internet overnight, even if they wanted to. Congress can always come back and pass new legislation if network discrimination becomes a serious problem. But in an industry that’s evolving as rapidly as this one is, let’s not cement today’s concepts into a law that will be in force for a decade or longer.

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