There’s a small but influential number of tech reporters and scholars who seem to delight in making the US sound like a broadband and technology backwater. A new Mercatus working paper by Roslyn Layton, a PhD fellow at a research center at Aalborg University, and Michael Horney a researcher at the Free State Foundation, counter that narrative and highlight data from several studies that show the US is at or near the top in important broadband categories.

For example, per Pew and ITU data, the vast majority of Americans use the Internet and the US is second in the world in data consumption per capita, trailing only South Korea. Pew reveals that for those who are not online the leading reasons are lack of usability and the Internet’s perceived lack of benefits. High cost, notably, is not the primary reason for infrequent use.

I’ve noted before some of the methodological problems in studies claiming the US has unusually high broadband prices. In what I consider their biggest contribution to the literature, Layton and Horney highlight another broadband cost frequently omitted in international comparisons: the mandatory media license fees many nations impose on broadband and television subscribers.

These fees can add as much as $44 to the monthly cost of broadband. When these fees are included in comparisons, American prices are frequently an even better value. In two-thirds of European countries and half of Asian countries, households pay a media license fee on top of the subscription fees to use devices such as connected computers and TVs. …When calculating the real cost of international broadband prices, one needs to take into account media license fees, taxation, and subsidies. …[T]hese inputs can materially affect the cost of broadband, especially in countries where broadband is subject to value-added taxes as high as 27 percent, not to mention media license fees of hundreds of dollars per year.

US broadband providers, the authors point out, have priced broadband relatively efficiently for heterogenous uses–there are low-cost, low-bandwidth connections available as well as more expensive, higher-quality connections for intensive users.

Further, the US is well-positioned for future broadband use. Unlike many wealthy countries, Americans typically have access, at least, to broadband from telephone companies (like AT&T DSL or UVerse) as well as from a local cable provider. Competition between ISPs has meant steady investment in network upgrades, despite the 2008 global recession. The story is very different in much of Europe, where broadband investment, as a percentage of the global total, has fallen noticeably in recent years. US wireless broadband is also a bright spot: 97% of Americans can subscribe to 4G LTE while only 26% in the EU have access (which partially explains, by the way, why Europeans often pay less for mobile subscriptions–they’re using an inferior product).

There’s a lot to praise in the study and it’s necessary reading for anyone looking to understand how US broadband policy compares to other nations’. The fashionable arguments that the US is at risk of falling behind technologically were never convincing–the US is THE place to be if you’re a tech company or startup, for one–but Layton and Horney show the vulnerability of that narrative with data and rigor.

The Mercatus Center at George Mason University has released a new working paper by Daniel A. Lyons, professor at Boston College Law School, entitled “Innovations in Mobile Broadband Pricing.”

In 2010, the FCC passed net neutrality rules for mobile carriers and ISPs that included a “no blocking” provision (since struck down in FCC v. Verizon). The FCC prohibited mobile carriers from blocking Internet content and promised to scrutinize carriers’ non-standard pricing decisions. These broad regulations had a predictable chilling effect on firms trying new business models. For instance, Lyons describes how MetroPCS was hit with a net neutrality complaint because it allowed YouTube but not other video streaming sites on its budget LTE plan (something I’ve written on). Some critics also allege that AT&T’s Sponsored Data program is a net neutrality violation.

In his paper, Lyons explains that the FCC might still regulate mobile networks but advises against a one-size-fits-all net neutrality approach. Instead, he encourages regulatory humility in order to promote investment in mobile networks and devices and to allow new business models. For support, he points out that several developing and rich countries have permitted commercial arrangements between content companies and carriers that arguably violate principles of net neutrality. Lyons makes the persuasive argument that these “non-neutral” service bundles and pricing decisions on the whole, rather than harming consumers, expand online access and ease non-connected populations into the Internet Age. As Lyons says,

The wide range of successful wireless innovations and partnerships at the international level should prompt U.S. regulators to rethink their commitment to a rigid set of rules that limit flexibility in American broadband markets. This should be especially true in the wireless broadband space, where complex technical considerations, rapid change, and robust competition make for anything but a stable and predictable business environment.

Further,

In the rapidly changing world of information technology, it is sometimes easy to forget that experimental new pricing models can be just as innovative as new technological developments. By offering new and different pricing models, companies can provide better value to consumers or identify niche segments that are not well-served by dominant pricing strategies.

Despite the January 2014 court decision striking down the FCC’s net neutrality rules, it’s an issue that hasn’t died. Lyons’ research provides support for the position that a fixation on enforcing net neutrality, however defined, distracts policymakers from serious discussion of how to expand online access. Rules should be written with consumers and competition in mind. Wired ISPs get the lion’s share of scholars’ attention when discussing net neutrality. In an increasingly wireless world, Lyon’s paper provides important research to guide future US policies.

I’ll be heading to Oxford University this week to participate in an Oxford Internet Institute (OII) forum on the subject of “Child Protection, Free Speech and the Internet: Mapping the Territory and Limitations of Common Ground.”  It’s being led by several experts from the OII as well as my good friends John Morris and Leslie Harris of the Center for Democracy & Technology (CDT).  The aims of this forum are:

• To facilitate a dialogue between NGOs campaigning to protect respectively, child protection and children’s rights online, and freedom of speech and other civil liberties online.
• To promote a better understanding of each others’ positions, to share perspectives and information with a view to identifying areas of common ground and areas of disagreement.
• To identify any shared policy goals, and possible tools to support the achievement of those goals.
• To publicize the findings of the forum in international policy debates about Internet governance and regulation.

Conference participants were asked to submit a 2-3 pg summary of their views on a couple of questions that will be discussed at this event.  I have listed those questions, and my answers, down below the fold.  It’s my best attempt to date to succinctly outline my views about how to balance content concerns and free speech issues going forward. 

What is the nature of your interest or experience in this field?

I have spent the last 18 years covering the intersection of child safety concerns and free speech issues at four different think tanks.  In recent years, I have tied together all my research in a constantly updated Progress & Freedom Foundation special report entitled, “Parental Controls & Online Child Protection: A Survey of Tools & Methods.” The 4^th edition of this 250-page report was released in August.

Are there particular values or principles which underlie your work?

The goal of my research has been to explore the tension between free speech and child protection and to identify methods of striking a sensible balance between these two important values.   It is my hope and belief that we are now in a position to more fully empower parents such that government regulation of content and communications will be increasingly unnecessary.

In the past, it was thought to be too difficult for families to enforce their own “household standard” for acceptable content. Thus, many believed government needed to step in and create a baseline “community standard” for the entire citizenry.  Unfortunately, those “community standards” were quite amorphous and sometimes completely arbitrary when enforced through regulatory edicts.  Worse yet, those regulatory standards treated all households as if they had the same tastes or values—which is clearly not the case in most pluralistic societies.

If it is the case that families now have the ability to effectively tailor media consumption and communications choices to their own preferences—that is, to craft their own “household standard”—then the regulatory equation can and should change.  Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.  Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.

Going forward, our goal should be to ensure that parents or guardians have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information.  Optimally, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families. In my work, I refer to this as the “household empowerment vision.”

Will we ever be able to achieve a world of perfect parental control over all online content and communications?  That is unlikely since both content and technology will continuously evolve and make that goal elusive. But government regulation of speech should yield where less restrictive alternatives such as household-based controls and strategies exist.  Given the value associated with free speech and the danger of government censorship, these alternatives need not be perfect to be preferable to government regulation.

What are the issues/policies or laws which you see as most problematic in terms of creating or illustrating a conflict between online child protection and free speech?

It is essential that policymakers resist the temptation to extend traditional broadcast industry regulatory statutes and standards to new media outlets and digital technologies.  In a world of media convergence and increasing user empowerment, traditional regulatory rationales make increasingly less sense.  Nonetheless, many ongoing social problems and challenges remain to achieving the “household empowerment vision” I outlined above, including:

• The “lack of awareness” problem: Some parents remain unaware of empowerment tools.
• The “bad parent” problem: Some parents don’t use tools even when aware of them.
• The “bad neighbor” problem: “Good” parents fear what happens when their kids visit other kids with more permissive parents.
• The “generation gap” problem: Kids sometimes know more about new digital technologies than their parents.
• The “technological surprise” problem: Rapid emergence and diffusion of new digital technologies can catch some parents by surprise.
• The “bad corporate actor” problem: Most companies self-regulate, but a handful push the boundaries of good taste in ways that create social concerns that reflect on industry generally.
• The “user-generated content” problem: Even when “professional” content can be managed, it is difficult to control “amateur” expression and creations.
• The “peer-on-peer bullying” problem: While many are concerned about predators, the real online safety problem turns out to be cyber-bullying among peers.

Because of these ongoing social challenges or concerns, legal and regulatory proposals will continue to be put forward. But each has serious downsides:

• Future of filtering: Centralized, network-based or decentralized, user-based?  The former creates serious censorship threats, as we see in China and other repressive states. The latter is more consistent with the household empowerment vision.
• Middleman deputization: Should online intermediaries be required to police the Net for various social ills?  If so, as hand-maidens of the state, they could become over-zealous speech regulators.
• Universal content ratings: Can policymakers mandate unified (or “scientific”) content media ratings?  Doing so puts regulators in a position to dictate content standards—for better or worse.  Moreover, this does nothing to address user-generated “amateur” content.
• Mandatory online age / identity verification: Potentially threatens anonymity, privacy, and free speech rights.  Moreover, to the extent “bad guys” continue to get into “secured” environments it creates a false sense of security for parents and kids.
• Expanded data retention: Although it would help facilitate some law enforcement goals, it also gives rise to new privacy and data breach risks.

Might any of these conflicts be avoidable, e.g. through the use of improved legislative instruments or greater clarity and accountability in processes of self-regulation?

For the above reasons, it makes more sense to put our energies into finding new self-regulatory mechanisms, social norms, and user empowerment strategies to solve ongoing social problems instead of focusing on regulatory solutions or mandates.  Instead of providing greater clarity, legislative instruments are more likely to instead create greater ambiguity, or at least uncertainty, for content creators and consumers alike. This is because, as was noted above, “community standards” are notoriously subjective; they are ham-handed attempts to gloss over the diverse needs and values of a diverse citizenry. By contrast, self-regulation, social norms, and empowerment strategies are evolutionary in character and more responsive to differences among cultures and households.

What are the issues where you think there might be most scope for finding some common ground?

In two words: empowerment and education. Because reliance on legislation is perilously difficult and enforcement of regulatory mandates is complicated (and sometimes impossible in an increasingly borderless world), efforts to better empower families and educate both kids and parents offer the most sensible path forward.  All stakeholders involved in child safety and free speech debates can generally agree that empowerment efforts, media literacy programs, awareness-building programs, and so on, are both effective and unobjectionable.

At the international level, are there certain key principles which we ought to be defending above all others?

Because of the “values clash” at the international level, it’s hard to imagine we’ll ever achieve consensus on some of these issues.  Countries vary widely in their sensitivities about speech, making any attempt to devise “universal principles” complicated.  For example, Europeans generally deride America’s prudish ways when it comes to matters of sexuality or “indecency.”  By contrast, most Americans cannot understand European concerns about “hate speech” or violently-themed media.  Meanwhile, governments in many other parts of the world are still busy trying to quell political or religious dissent.  “Harmonization” among those competing cultural norms remains complicated, therefore, and it would be a mistake if international harmonization was accomplished by sacrificing free speech rights for countries and cultures who cherish them.

ICANN has just released a second draft of its Applicant Guidebook, which would guide the creation of new generic topmore generic top-level domains (gTLDs) such as .BLOG, .NYC or .BMW. As ICANN itself declared (PDF), “New gTLDs will bring about the biggest change in the Internet since its inception nearly 40 years ago.”  PFF Adjunct Fellow Michael Palage and former ICANN Board member addressed the key problems with ICANN’s original proposal in his  paper ICANN’s “Go/ No-Go” Decision Concerning New gTLDs (PDF & embedded below), released earlier this week.

ICANN deserves credit for its detailed analysis of the many comments on the original draft which Mike summarized back in December.  ICANN also deserved credit for addressing two strong concerns of the global Internet community in response to the first draft:

• ICANN has removed its proposed 5% global domain name tax on all registry services, something Mike explains in greater detail in his “Go/No-Go” paper.
• ICANN has commissioned a badly-needed economic study on the dynamics of the domain name system “in broad.” But such a study must address how the fees ICANN collects from specific user communities relate to the actual costs of the services ICANN provides. The study should also consider why gTLDs should continue to provide such a disproportionate percentage of ICANN’s funding—currently 90%—given increasing competition between gTLDs and ccTLDs (e.g., the increasing use of .CN in China instead of .COM).

These concerns are part of a broader debate:  Will ICANN abide by its mandate to justify its fees based on recovering the costs of services associated with those fees, or will ICANN be free to continue “leveraging its monopoly over an essential facility of the Internet ( i.e., recommending additions to the Internet’s Root A Server) to charge whatever fees it wants?”  If, as Mike has discussed, ICANN walks away from its existing contractual relationship with the Department of Commerce and claims “fee simple absolute” ownership of the domain name system, who will enforce such a cost-recovery mandate?  

But ICANN simply “kicked the can down the road on the biggest concern”: how to minimize abusive domain name registrations ( e.g., cybersquatting, typosquatting, phishing, etc.) and reduce their impact on consumers. ICANN seems only to have made a vague promise to engage in additional outreach and consultation on this problem.  But Mike has proposed a number of potential solutions that are narrowly tailored to protect brand holders while respecting the fair use rights of other, including: 

• A Rebuttable Reserve Names List that would minimize the need for defensive registrations of marks that have been subject to abusive registrations by freezing registration of domain names (e.g., DELTA.AIR) that precisely correspond to those marks (e.g., Delta Airlines’ “Delta” trademark)  for the 60 days leading up to the opening of a new TLD (e.g., .AIR)—although anyone can rebut this presumption upon making a fair use showing under existing UDRP principles.
• An Expedited Domain Suspension Policy, either  as a new policy, or an amendment to the existing UDRP, that would provide a faster and more cost-effective remedy for abusive domain name registrations on an ongoing basis, but only for marks that have been registered with a national trademark authority (or the equivalent thereof).
• A Uniform Proxy Registration Policy governing the use of proxy services that substitute their own contact information for the registration’s information in the Whois database; such baseline practices and safeguards would reduce abuse that could harm legitimate users while preserving the option of proxy registration for privacy-sensitive users.

Washington Internet Daily (subscription-only) reports that:

ICANN is also rethinking its timeline for launching the gTLD application process, it said. There will be a third draft guidebook, making it unlikely applications will be accepted before December, it said. The new draft leaves provisions on four major issues – security and stability, malicious misconduct, trademark protection and demand/economic analysis of the need for new gTLDs – unchanged pending further discussion, ICANN said. Comments are due April 13. 

PFF wil continue to respond to ICANN’s call for comment to promote responsible expansion of the domain name space.  Here’s Mike’s paper (click on the rectangle-in-rectangle button at the top right to maximize the iPaper viewer):