Forbes.com has just published an editorial that Berin Szoka and I penned about yesterday’s net neutrality announcement from the FCC.
by Adam Thierer & Berin Szoka
There was a time, not so long ago, when the term “Internet Freedom” actually meant what it implied: a cyberspace free from over-zealous legislators and bureaucrats. For a few brief, beautiful moments in the Internet’s history (from the mid-90s to the early 2000s), a majority of Netizens and cyber-policy pundits alike all rallied around the flag of “Hands Off the Net!” From censorship efforts, encryption controls, online taxes, privacy mandates and infrastructure regulations, there was a general consensus as to how much authority government should have over cyber-life and our cyber-liberties. Simply put, there was a “presumption of liberty” in all cyber-matters.
Those days are now gone; the presumption of online liberty is giving way to a presumption of regulation. A massive assault on real Internet freedom has been gathering steam for years and has finally come to a head. Ironically, victory for those who carry the banner of “Internet Freedom” would mean nothing less than the death of that freedom.
We refer to the gradual but certain movement to have the federal government impose “neutrality” regulation for all Internet actors and activities—and in particular, to yesterday’s announcement by Federal Communications Commission (FCC) Chairman Julius Genachowski that new rules will be floated shortly. “But wait,” you say, “You’re mixing things up! All that’s being talked about right now is the application of ‘simple net neutrality,’ regulations for the infrastructure layer of the net.” You might even claim regulations are not really regulation but pro-freedom principles to keep the net “free and open.”
Such thinking is terribly short-sighted. Here is the reality: Because of the steps being taken in Washington right now, real Internet Freedom—for all Internet operators and consumers, and for economic and speech rights alike—is about to start dying a death by a thousand regulatory cuts. Policymakers and activists groups are ramping up the FCC’s regulatory machine for a massive assault on cyber-liberty. This assault rests on the supposed superiority of common carriage regulation and “public interest” mandates over not just free markets and property rights, but over general individual liberties and freedom of speech in particular. Stated differently, cyber-collectivism is back in vogue—and it’s coming very soon to a computer near you! Continue reading →
If you happen to be in the New York city area next Tuesday, April 21, stop by Cardozo Law school for what promises to be a great event starting at 11:15:
The Cardozo Public Law, Policy & Ethics Journal is pleased to present a symposium on Internet openness, net neutrality, content diversity and competition. What is the new definition of net neutrality and what are the developing mandates? How do policymakers promote or harm the richness and diversity online content/media? Join the lively debate with speakers including Sascha Meinrath (New America Foundation); Berin Szoka (Progress & Freedom Foundation); John Morris (Center for Democracy & Technology); Matthew Lasar (Ars Technica); Fred Benenson (Creative Commons); Jonathan Askin (Brooklyn Law School).
During the 11:30-1 pm panel, I’ll be talking about “Unrecognized to Internet Openness: Regulatory Mandates & Increased Liability”—explaining how the work Adam Thierer & I have been doing about privacy regulation, online advertising, Section 230, age verification mandates,
etc. are all fundamentally issues of “openness.” As we noted in our recent response (PDF) to the FTC’s self-regulatory guidelines:
We stand at an important crossroads in the debate over the online marketplace and the future of a “free and open” Internet. Many of those who celebrate that goal focus on concepts like “net neutrality” at the distribution layer, but what really keeps the Internet so “free and open” is the economic engine of online advertising at the applications and content layers. If misguided government regulation chokes off the Internet’s growth or evolution, we would be killing the goose that laid the golden eggs.
Tim Lee’s long anticipated Cato Institute Policy Analysis has been released today.
The Durable Internet: Preserving Network Neutrality without Regulation is a must-read for people on both sides of the debate over network neutrality regulation.
What I like best about this paper is how Tim avoids joining one “team” or another. He evenly gives each side its due – each side is right about some things, after all – and calls out the specific instances where he thinks each is wrong.
Tim makes the case for treating the “end-to-end principle” as an important part of the Internet’s fundamental design. Tim disagrees with the people who argue for a network with “smarter” innards and believes that neutrality advocates seek the best engineering for the network. But they are wrong to believe that the network is fragile or susceptible to control. The Internet’s end-to-end architecture is durable, despite examples where it is not an absolute.
Tim has history lessons for those who believe that regulatory control of network management will have salutary effects. Time and time again, regulatory agencies have fallen into service of the industries they regulate.
“In 1970,” Tim tells us, “a report released by a Ralph Nader group described the [Interstate Commerce Commission] as ‘primarily a forum at which transportation interests divide up the national transportation market.'” Such is the likely fate of the Internet were management of it given to regulators at the FCC and their lobbyist friends at Verizon, AT&T, Comcast, and so on.
This paper has something for everyone, and will be a reference work as the network neutrality discussion continues. Highly recommended: The Durable Internet: Preserving Network Neutrality without Regulation.
My colleague Barbara Esbin, a Senior Fellow and Director of the Center for Communications and Competition Policy at The Progress & Freedom Foundation, was asked to pen a short history of the net neutrality wars in the U.S. for a French publication, La Lettre de l’Autorité. Her essay provides an excellent, concise overview of where we’ve come from and where we might be heading on this front. I’ve pasted the entire essay down below, or you can download the PDF here.
Net Neutrality Regulation in the United States
by Barbara Esbin
PFF
Progress Snapshot
Release 4.21 October 2008
The United States moved closer to “Net Neutrality” regulation this year when the Federal Communications Commission found that Comcast, a cable broadband Internet service provider, violated a set of Internet policy principles the FCC adopted in 2005 by limiting peer-to-peer (P2P) traffic. The ruling was the culmination of a ten-year effort that began as a call for wholesale “open access” to the cable platform for third-party Internet service providers. Requests for open access first emerged in 1998 when the FCC considered AT&T’s acquisition of cable operator TCI. The FCC rejected open access, but the issue quickly re-emerged in a subsequent proceeding to determine the appropriate regulatory classification of cable Internet service. Depending on how the FCC categorized cable Internet service, it would either be subject to telecommunications “common carrier” requirements, “cable service” requirements, or treated as a then-unregulated “information service.”
In 2002, the FCC classified cable Internet service as an “information service.” This meant that the telecommunications common carrier requirements — that service be provided upon request, without unreasonable discrimination as to rates, terms and conditions of service — would not apply to cable Internet services. The FCC’s decision was upheld by the U.S. Supreme Court in
NCTA v. Brand X. Afterwards, advocates of open access re-directed their efforts away from advocating wholesale access for third-party ISPs, and towards rules aimed at consumer rights to a “neutral network” or “net neutrality.”
Continue reading →
Google’s Chief Internet Evangelist Vint Cerf, one of the fathers of the Net, has a very thoughtful post up on the Google Public Policy Blog today asking “What’s a Reasonable Approach for Managing Broadband Networks?” He runs through a variety of theoretical approaches to network load management. There’s much there to ponder, but I just wanted to comment briefly on the very last thing he says in the piece:
Over the past few months, I have been talking with engineers at Comcast about some of these network management issues. I’ve been pleased so far with the tone and substance of these conversations, which have helped me to better understand the underlying motivation and rationale for the network management decisions facing Comcast, and the unique characteristics of cable broadband architecture. And as we said a few weeks ago, their commitment to a protocol-agnostic approach to network management is a step in the right direction.
I found this of great interest because for the last few months I have been wondering: (a) why isn’t there more of that sort of inter- and intra-industry dialogue going on, and (b) what could be done to encourage more of it? With the exception of those folks at the extreme fringe of the Net neutrality movement, most rational people involved in this debate accept the fact that there will be legitimate network management issues that industry must deal with from time to time. So, how can we get people in industry — from all quarters of it — to sit down at a negotiating table and hammer things out voluntarily before calling in the regulators to impose ham-handed, inflexible solutions? What we are talking about here is the need for a technical dispute resolution process that doesn’t involve the FCC.
Continue reading →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.