Brook Ellingwood
COM 588: Digital Media Law and Policy
Instructor: Kraig Baker
August 20, 2010
Introduction
In 2006 the term, if not the concept, of “net neutrality” gained a sudden popularly currency as media coverage of debates over how Internet traffic was handled and prioritized increased. In testimony before Congress, important architects of the Internet expressed concerns about the medium’s health if service providers were allowed to choose what content was allowed to pass through their systems, or at what speed it was allowed through.
Illustration 1: Google search for the term “net neutrality” over time.
Current communications legislation and regulations are not simply products of the Internet era. In fact, there is relatively little law in place that was developed with the Internet in mind. Contrary to the opinions of some I have spoken to, the Internet is not a public bastion of Free Speech. Instead it is a collection of privately held services that have no obligation to allow freedom of expression, and to date have only been perceived as doing so because they have chosen not to restrict the most popular uses. The fact that less-popular uses have been restricted could be seen as a red flag by civil libertarians who believe that it is the voices of dissent that most need protection in a free society.
To develop a better understanding of the legal issues of net neutrality today, including the recent Verizon-Google Legislative Framework Proposal, I have conducted a survey of the major communications act of the past century.
Defining Net Neutrality
Net neutrality is a concept that has been gaining increasing levels of visibility for years, beginning with individuals and organizations active in issues of technology and society and growing to include government regulators, elected officials and an increasing number of business interests on both sides of the issue. With the August 9, 2010 announcement of a joint proposal from Google and Verizon, the debate moved farther into the mainstream even as interested parties were still examining what it is, exactly, that Google and Verizon have agreed to.
The advocacy group Common Cause (n.d.) defines net neutrality as
…the principle that Internet users should be able to access any web content they want, post their own content, and use any applications they choose, without restrictions or limitations imposed by their Internet service providers (ISPs).
In 2006 Google published “A Note to Google Users on Net Neutrality” which struck a populist tone above the signature of the company’s CEO:
The Internet as we know it is facing a serious threat. There’s a debate heating up in Washington, DC on something called “net neutrality” – and it’s a debate that’s so important Google is asking you to get involved. We’re asking you to take action to protect Internet freedom.
In the next few days, the House of Representatives is going to vote on a bill that would fundamentally alter the Internet. That bill, and one that may come up for a key vote in the Senate in the next few weeks, would give the big phone and cable companies the power to pick and choose what you will be able to see and do on the Internet.
Today the Internet is an information highway where anybody – no matter how large or small, how traditional or unconventional – has equal access. But the phone and cable monopolies, who control almost all Internet access, want the power to choose who gets access to high-speed lanes and whose content gets seen first and fastest. They want to build a two-tiered system and block the on-ramps for those who can’t pay.
Creativity, innovation and a free and open marketplace are all at stake in this fight. Please call your representative (202-224-3121) and let your voice be heard.
Thanks for your time, your concern and your support.
Eric Schmidt
Although they are accurate descriptions as far as they go, these definitions were designed to be easily understood by an audience with little detailed background in the issue. Google’s note is interesting as a document of the company’s evolving position on net neutrality. It was published at a time when the Communications, Consumer’s Choice, and Broadband Deployment Act of 2006, proposed by the late Senator Ted Stevens, was being opposed on the grounds that it would undermine net neutrality. In describing the act, which did not pass, Stevens memorably described the Internet as “not a big truck” but “a series of tubes.” The latter phrase quickly became a symbolic catchphrase implying that politicians writing laws that impact the Internet actually understand very little about how it works.
In truth, “a series of tubes” could be an apt metaphor for describing the infrastructure of the Internet – like a municipal water supply, the Internet provides a networked conduit between far-flung points. What flows through Stevens’ tubes is, of course, not water but electronic information. Like water, the volume of information that reaches your house in any given period of time is determined by the carrying capacity of the infrastructure carrying it. But when you go to the sink and turn on your faucet, it’s not the miles of underground piping that you think of as the point of the water utility – the water filling your cup that’s the reason you pay your water bill and the pipes that deliver it are just the means by which it gets to you.
Water systems lack any foreknowledge of what the water they deliver will be used for. Although the idea may have a certain appeal in some circles, water utilities can’t turn valves and adjust delivery in times of drought so that you get a normal flow for showering, but a greatly reduced flow for watering your verdant expanse of lawn. You may know which tap you’ve opened, but when seen from the water tower, it’s all just water flowing.
At its core, the concept of “net neutrality” is that Internet information should flow through the “tubes” in the same way that water flows through a municipal water system – without any consideration of how it will be used. Net neutrality principles hold that if an email sent to you and an email sent to Bill Gates happen to pass through the same server, that server should not pass Gates’ email faster than your email. If you are watching a video distributed through a television network owned by your broadband cable provider, that video should not stream more smoothly than one distributed by a different network. Website data flowing to your Amazon “faucet” should not be delivered more quickly that data flowing to your Onlineshoes.com “faucet.”
Fire Hydrants, Data Protocols and Metered Mail
The design of any sort of distribution network requires some compromise of strict neutrality. Fire hydrants, for example, connect into the water supply with bigger pipes giving them greater carrying capacity than your house does. You would no more want the fire department trying to save your house with the flow of water that comes out of your shower head than you would want to take your morning shower buffeted by the stream of water from a fire hydrant. The backbone of the Internet has a carrying capacity enormously greater than the fastest connections available to the average household. While you might want that kind of speedy data connection to your house, for most of us it would be cost-prohibitive to install, and we really wouldn’t derive that much benefit from it.
But it’s not this kind of matching capacity to use that “net neutrality” refers to.
The flow of information through the Internet is not like a steady stream of water. Information is broken into discrete “packets” at the supply side, and then these packets are reassembled into complete files at the user side. To successfully complete this trip the average packet “hops” through 18 different computers before arriving at its destination. Like paper packages sent by mail, electronic packets have to be clearly labelled so as to not get lost at each intermediary stop. Everyone computer a packet passes through reads the header information so it know what to do with it.
Electronic packet headers include a “from” address and a “to” address, of course, along with a variety of other useful information. One of these other bits of information is the “protocol,” which identifies how it is that the requesting computer and the responding computer are talking to each other. The familiar “http://” at the beginning of Web addresses stands for “HyperText Transfer Protocol,” while email typically moves around the Internet with via SMTP (“Simple Mail Transfer Protocol”), POP (“Post Office Protocol”) or IMAP (“Internet Message Access Protocol”). The popular BitTorrent file sharing software uses yet another protocol.
By and large, the many computers through which packets of information you request don’t care who you are, who you are getting information from, or what type of information you are receiving. A packet comes in and is passed through just the same as any other packet. But there are compelling business reasons for the Internet Service Providers (ISPs) that operate these computers to change that.
The United States Post Office has multiple categories for mail, indicated by different stamps on the packages it handles. First Class postage costs more than Bulk Rate, but gets your package to its destination quicker. Next Day costs even more, but delivery is quicker still.
From the perspective of an ISP, providing the same speed of delivery to all packets passing through seems like giving a free upgrade to Next Day delivery to everything put in a mailbox anywhere. As more and more data is transferred, they have to build more and more expensive servers and pay more and more in data transfer fees to other ISPs. But from the perspective of most users, it seems like the level of service they feel they are paying for and are entitled to.
Test Case: Choking the Torrents
The real world has already provided a test case in the form of data transferred using the BitTorrent protocol.
BitTorrent packets are estimated to comprise up to one third of total Internet traffic, due to the large media files that typically are shared through that protocol and despite the smaller number of BitTorrent users compared to users of email, Web pages or other common protocols. Some ISPs have chosen to minimize the impact of BitTorrent traffic on their systems by identifying it via header information and passing it through more slowly than other forms of traffic. In 2006, Comcast went farther and began disrupting BitTorrent traffic completely, by identifying it as it passed through their servers and inserting false “transfer complete” into the packet stream (Singel, 2007).
BitTorrent is an attractive test case for ISPs to use in pushing the boundaries of neutrality, not only because the files are large, but also because much of the content sharing is in violation of copyrights and the sharers affected by speed throttling or blockage are hesitant to risk legal exposure for piracy. But the ethical questions raised these practices touch on far deeper matters, including the relationship between the First Amendment and new communications forms that the framers of the constitution never imagined.
Even assuming most BitTorrent users are engaged in illegal activity, there is nothing illegal about the protocol itself. It is used for many legitimate purposes. Examples include updating the servers of both Facebook and Twitter, distributing the software for the online game World of Warcraft and sharing the government of the United Kingdom’s public spending records (Ernesto, 2010).
In 2008, Comcast ceased blocking BitTorrent traffic in favor of throttling the heaviest users of bandwidth during times of high traffic. Later that year, the FCC ruled that Comcast’s practices were not acceptable and order the company to stop restricting certain types of traffic (Hansell, 2008). The tables were turned in April, 2010 when a federal appeals court ruled the FCC lacks authority to regulate Internet service (Wyatt, 2010).
Looking Forward by Looking Back
With no clear regulatory framework in place the stage has been set for a contentious debate on net neutrality, a debate in which Google and Verizon’s joint proposal has caused a stir. Underscoring the unique role the Internet plays in the lives of many people, the net neutrality discussion often takes on an emotional tone in which Google’s “Don’t be Evil” corporate mantra is twisted and thrown back at the company, and civil libertarians worry about an Internet regulated by the same FCC that fined CBS half a million dollars for Janet Jackson’s “wardrobe malfunction” in the name of community standards.
My approach to getting past the sensationalized aspects of the debate has been to examine past debates about communication in the United States and look for commonalities in the legislative and regulatory approaches taken. In doing my research, it occurred to me that historically some communications media have been regulated as services, while others have been regulated as utilities. The average consumer likely gives little consideration to the difference, and may have unclear expectations as a result.
Shroedinger’s ISP: Quantum Utilities and Services
Quantum physicists attempting to understand the nature of the universe, work with a model in which sometimes subatomic particle truly are particles of matter, but sometimes they are waves of energy. The only way to accurately describe a particle is through the concept of wave-particle duality, which holds that it is simultaneously both a particle and a wave until someone checks in to see just what it’s up to.
Understanding the debate about net neutrality can lead to a concept of utility-service duality. Although less mind-boggling than quantum physics, this model requires us to make a clear distinction between utilities and services.
Utilities, such as the municipal water supply, deliver necessities to the public, “…such as water, electricity, natural gas, and telephone and telegraph communication.” Typically in the United States utilities are either run by governments or tightly regulated private companies that have been granted monopolies. The reasons for regulation are often tied to the societal value of the service provided: A water utility that maximized profits by only supplying water to customers that could pay top dollar would not be operating in the best interests of public health.
Services are intangible goods, such as the delivery of mail, that also may be provided by governments or private companies. The United States Postal Service exists in a sort of in-between state as a private company that is owned by the government. Services are not seen as necessities, and therefore have more latitude in creating differing rate structures or choosing which tasks it will agree to: The USPS charges more for faster delivery and places limits on the size and weight of packages it will send through its facilities.
Internet Service Providers are structured as services, but their customers typically expect them to function as public utilities. It isn’t until someone checks to see just what they are up to that we know which of the two models they are acting more like at any given time.
Communication, Regulation, History
While concerns about the role of communication media in society go back at least as far as Socrates, a better place to start with net neutrality is with the invention of radio.
Events Leading to the Formation of the Federal Radio Commission
As with many new technologies, radio had a large early adopter base of hobbyists who took pleasure in building their own equipment and using it to connect with other enthusiasts. But it also had a commercial “killer application.” With radio, ships at sea were no longer isolated from instant communication with land, or each other. Radio became a revenue generator as telegraphic messages were sent to and from ships. The United States Navy adopted radio.
In 1909 an amazing demonstration of the value of radio occurred when a ship in distress sent an emergency message and the lives of 1200 people were saved. Congress reacted by passing the Wireless Ship Act of 1910, which required all ships with more than 50 passengers and traveling more than 200 miles off the coast to be equipped with radios.
This act just added to a growing problem with crowding and limited bandwidth. As a self-regulated medium, radio was becoming a free-for-all, with amateurs resenting any corporate or government use. Some hobbyists began jamming broadcasters they didn’t approve of, or sending false messages including fake distress calls and orders to Navy vessels (Slotten, 2000).
The 1912 sinking of the Titanic proved a watershed moment in the regulatory history of this new medium. Although the Californian, the closest vessel to the sinking, didn’t receive Titanic’s distress calls because its only radio operator had gone to bed for the night, the more distant Carpathian, did and arrived in time to rescue many survivors. In the hours after the sinking, the unregulated radio waves were jammed and confused although it is reported that the following night New York area amateurs voluntarily maintained radio silence so as to not interfere with the transmission of survivor lists from the rescuing vessels (White, n.d.).
The disaster left a perception that more lives could have been saved had the airwaves not been so chaotic when it happened. Despite the radio enthusiasts’ vociferous belief that no regulation was the only acceptable form of regulation, Congress moved quickly and enacted the Wireless Act of 1912, which established the United States Department of Commerce and Labor as the regulatory body overseeing radio. For the first time, licenses were required to operate radio equipment and limits were set on broadcast frequency, hours of operation and signal strength (Slotten; White).
Protestations continued, with many maintaining that the Commerce Department’s radio licenses were a violation of the First Amendment’s Free Speech protection. Court cases were pursued and in 1927 the federal government created the Federal Radio Commission to regulate the licensing and use of the broadcast spectrum. In its first annual report, the commission itself acknowledged uncertainty about what it was being asked to do.
The passage of the radio act of 1927 presented a situation without parallel in the history of American executive departments. A wholly new Federal body was called into being to deal with a condition which had become almost hopelessly involved during the months following July 3, 1926, when it had become clear that the Department of Commerce had no authority under the 1912 radio law to allocate frequencies, withhold radio licenses, or regulate power or hours of transmission. The new law itself was, of course, totally untested, and the Federal Radio Commission was called upon to administer it with no clear knowledge as to the limitations which might be created by subsequent court action (Messere, 1997).
The FRC’s confusion about what, exactly, it had authority over stemmed directly from the circumstances of its formation:
…the Radio Act of 1927 was emergency legislation, passed to bring order to the airwaves after a Federal judge had ruled in 1926 that the Department of Commerce’s licensing of stations was unconstitutional, thus leading to a period of chaos in the ether, as many stations disrespected the existing frequency and power assignments (McChesney, 1992).
Despite having debated and approved the act, Congress seemed unsure about what it was doing as well:
Senator Key Pittman of Nevada expressed his frustration to the Senate chair: “I do not think, sir, that in the 14 years I have been here there has ever been a question before the Senate that in the very nature of the thing Senators can know so little about as this subject.”
Nor was the public much better informed, Pittman noted, even though he received telegrams daily urging passage.
“I am receiving many telegrams from my State urging me to vote for this conference report, and informing me that things will go to pieces, that there will be a terrible situation in this country that cannot be coped with unless this report is adopted. Those telegrams come from people, most of whom, I know, know nothing on earth about this bill.” (Goodman, n.d.)
Perhaps due to its origins in a struggle over free speech, the newly-created commission was given very limited explicit power over content. The act stated that radio programming could not be “obscene, indecent, or profane” and that radio stations had to give equal time to political candidates. While this power may have been limited, the real power of the commission – the ability to revoke licenses for broadcasters that didn’t toe the line – gave it a much heavier regulatory hand than indicated by the act on its surface. In addition to revoking licenses to stations that broadcast foul language, the FRC shut down broadcasters who transmitted material supporting political or religious views that the commission felt were outside the mainstream of American opinion. (Goodman)
In 1928, the FRC reallocated the broadcast spectrum in a scheme that heavily favored stations that were part of the NBC and CBS radio networks, relegating non-commercial broadcast uses to low-power stations that were only allowed to broadcast during daylight hours. The amateur operators were licensed to operate in a separate part of the spectrum, where they wouldn’t interfere with the broadcasters or the military users, who had yet another part of the spectrum.
A key argument used to rebut First Amendment challenges of broadcast licenses was the concept of the radio frequency as a scarce natural resource. Without regulation, the argument went, overuse would destroy radio’s capability to be used by anyone.
The FRC Becomes the FCC
Of course, radio as a communications medium wasn’t invented out of whole cloth. In many ways it was an extension of the wired communication networks that had developed in the 19th Century: the telegraph and telephone. In 1910, the Mann–Elkins Act had given the Interstate Commerce Commission regulatory authority over the nation’s telephone and telegraph carriers, and in the 1913 Kingsbury Commitment, American Telephone and Telegraph had fended off possible anti-trust action by agreeing to ICC approval authority over any further acquisitions of other phone companies and allowing AT&T’s competitors access to its extensive network of phone lines (“American Telephone & Telegraph,” 2010).
The Communications Act of 1934 was less sweeping legislation than the act it superseded and more of a bit of regulatory housecleaning. Following its passage, the Federal Radio Commission was replaced by a new Federal Communications Commission, which inherited its predecessor’s duties plus the oversight of telephone and telegraph carriers formerly carried out by the Interstate Commerce Commission.
The establishment of the FCC was the last major communications act for the next 62 years, until the Telecommunication Act of 1996.
The Cusp of a New Millennium, the Passage of a New Act
Coming as it did in the late 20th Century’s era of deregulation, it is hardly surprising that the Telecommunications Act of 1996 loosened many previous restrictions on communications companies. For example, after the acts’s passage cable television companies and telephone companies could compete in offering each other’s traditional services, as well as for the growing number of customers looking for broadband Internet connections.
Deregulatory aspects of the act were promoted as methods to foster competition amongst media companies. However in the wake of the act’s passage, consolidation that had begun in the 1980s continued unabated. With the country’s communications media owned by fewer and fewer people, there has been criticism that deregulation had a far more detrimental effect on supporting freedom of speech through access to media channels than the regulations it did away with.
The era of the act’s passage was also the peak of the so-called “culture wars” when debates about behavior and character often seemed to take precedence over other topics. Title V of the act, known as the “Communications Decency Act” was legislation that made a major regulatory grab for control over the content of cable television and the Internet. Much of the CDA was subsequently removed following successful legal challenges. As subscription services, cable and Internet providers are not bound to the same decency rules that the FCC enforces against broadcasters whose signals can be accessed for free.
The act and subsequent court battles left interested civil liberties groups wary of the potential impact on freedom of speech that might come from granting strong regulatory authority over the Internet to the FCC. These concerns continue to color the current debate over net neutrality.
The Electronic Frontier Foundation’s Corynne McSherry wrote in 2009 of concerns that granting the FCC authority over net neutrality would be akin to a “Trojan Horse,” and that once the regulatory body was inside the gates of the Internet it would quickly overwhelm the inhabitants and take over:
…it doesn’t take much imagination to envision a future FCC “Internet Decency Statement.” After all, outgoing FCC Chairman Martin was a crusader against “indecency” on the airwaves and it was the FCC that punished Pacifica radio for playing George Carlin’s “seven dirty words” monologue, something you can easily find on the Internet. And it’s also too easy to imagine an FCC “Internet Lawful Use Policy,” created at the behest of the same entertainment lobby that has long been pressing the FCC to impose DRM on TV and radio, with ISPs required or encouraged to filter or otherwise monitor their users to ensure compliance.
…
EFF’s concerns are born from more than just a general skepticism about government regulation of the Internet. Experience shows that the FCC is particularly vulnerable to regulatory capture and has a history of ignoring grassroots public opinion (see, e.g., media consolidation). That makes the agency a poor choice for restraining the likes of Comcast and AT&T.
The “regulatory capture” that McSherry refers to is a term describing what happens when an industry subject to regulation in the public interest begins to unduly influence the body charged with regulating it. The FRC was accused of becoming a captured agency after its reallocation scheme so heavily favored commercial interests, and the FCC has often suffered similar complaints. As alluded to in the quote, the consolidation of media companies during the 1980s and 1990s has been seen by many as a blow to free speech and other aspects of the public interest.
Patterns in the Legislative Record
While there is much about the Internet that is new and unprecedented, it is striking how many parallels there are between the current debate over net neutrality and the situations that gave rise to the key communication acts of the 20th Century. Similar concerns about balancing the role of government against the constitutional rights of individuals and commercial interests recur throughout.
As with the Internet, radio’s early users were heavily skewed towards enthusiasts who formed a community around building their own equipment and sharing technical information that often was the intellectual property of others. Faced with the encroachment of commercial interests and government oversight into a medium they felt rightfully belonged to them on the basis of the First Amendment, they fought back by disrupting the medium, essentially launching denial of service attacks and messages with viral payloads, using telegraph keys instead of computer code.
In the end, these techniques proved counter-productive as they underscored the medium’s fragility when ruled only by a self-policing community. As radio became more important to civil and commercial functions, the existing community’s stridently libertarian resistance to regulation pushed it to the sidelines as the commercial users increasingly came to sound reasonable in comparison.
And when, in the end, Congress finally acted decisively, it did so with admittedly poor understanding of what it was doing. The debate was over matters that elected officials had no great knowledge of. The Davis Amendment to the Radio Act of 1927 underscored this point, as legislators directed the Federal Radio Commission to spread radio licenses equally across the country in five identified geographical zones, without consideration of population density or bandwidth capacity, thereby immensely complicating their already burdensome task (Messere, 1996).
The Verizon-Google Legislative Framework Proposal
In August, 2010, the “Verizon-Google Legislative Framework Proposal” for a legislative approach to net neutrality was published. In many corners of Internet, reaction to the release was swift and condemnatory:
Google, a company that I’ve long admired and currently hold thousands of dollars of stock in, just “went evil.” (Green, 2010)
The whole approach just seemed so at odds with Google’s past fiery statements on the issue. Maybe we misread the search engine giant’s previous statements, we worried. Until this month, wasn’t Google one of net neutrality’s biggest advocates? (Lasar, 2010)
The vehemence of the reactions was in no small part amplified by the perception that Google had reversed its previous public position on net neutrality. Yet, after reviewing the legislative history, it was difficult not to hear the recent uproar echoes of past communication regulation.
The first two sections of the proposal directly address the issue of net neutrality:
Consumer Protections: A broadband Internet access service provider would be prohibited from preventing users of its broadband Internet access service from–
- sending and receiving lawful content of their choice;
- running lawful applications and using lawful services of their choice; and
- connecting their choice of legal devices that do not harm the network or service, facilitate theft of service, or harm other users of the service.
Non-Discrimination Requirement: In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.
Google’s stand in its “A Note to Google Users on Net Neutrality” of 2006 and in other statements strongly indicated a no-compromise stance. But the proposal of 2010, they have left loopholes. These two sections each fail the “Bittorrent Test.” First, the phrase “harm the network or service” is not defined, allowing an interpretation that would allow Bittorrent users’ computers to be blocked. More baldly put is the statement “Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.” In other words, net neutrality must be enforced unless the service provider argues that it shouldn’t.
While sections one and two offer net neutrality loopholes, section four would expressly allow for the throttling of traffic for a variety of reasons:
Network Management: Broadband Internet access service providers are permitted to engage in reasonable network management. Reasonable network management includes any technically sound practice: to reduce or mitigate the effects of congestion on its network; to ensure network security or integrity; to address traffic that is unwanted by or harmful to users, the provider’s network, or the Internet; to ensure service quality to a subscriber; to provide services or capabilities consistent with a consumer’s choices; that is consistent with the technical requirements, standards, or best practices adopted by an independent, widely-recognized Internet community governance initiative or standard-setting organization; to prioritize general classes or types of Internet traffic, based on latency; or otherwise to manage the daily operation of its network.
It seems that that Comcast’s disruption of legal Bittorrent traffic based solely on the protocol being used and no other criteria would be allowed under this section.
Section three mandates transparency, requiring broadband providers “…to disclose accurate and relevant information in plain language about the characteristics and capabilities of their offerings, their broadband network management, and other practices necessary for consumers and other users to make informed choices.” While on the face of it, this would encourage competition, with current wired connections the primary means of delivering broadband services, most people in America would continue to have very limited choice of providers.
Probably the part of the proposal that has received the most attention is section five, entitled “Additional Online Services”:
…A provider that offers a broadband Internet access service … could offer any other additional or differentiated services. Such other services would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization. The FCC would publish an annual report on the effect of these additional services, and immediately report if it finds at any time that these services threaten the meaningful availability of broadband Internet access services or have been devised or promoted in a manner designed to evade these consumer protections.
In essence, what is being described is a sort of Internet take on the FRC’s broadcast spectrum reallocation of 1928. Verizon and Google are suggesting that there could be parallel Internets – the existing one which is open to all and which would observe net neutrality, and others which would be used by paying customers looking for guarantees that their traffic would not be hindered by the unpredictable activity of the open Internet.
A companion press release from the proposal partners described some compelling uses for these parallel Internets, which emphasize the potential public good they might provide:
…broadband providers can work with other players to develop new services. It is too soon to predict how these new services will develop, but examples might include health care monitoring, the smart grid, advanced educational services, or new entertainment and gaming options (Davidson & Tauke, 2010).
There can be little doubt that the services described would benefit from reliability and security that simply can’t be found on the Internet we have today. Putting health care monitoring or control of the nation’s electrical grid into an environment where denial of service attacks are commonplace, and hackers break into servers for numerous reasons is a frightening thought. Not allowing health care monitoring or control of the nation’s electrical grid to enjoy the benefits of being managed across the Internet is in some ways an equally frightening thought. Are we to take a Luddite approach to advanced services for the common good in the name of security?
But on the flip side of this picture are questions about access to a level playing field. In 1928 it was just such a multi-tiered approach to radio that gave 37 out of the 40 nationwide “clear channels” to commercial network affiliates, squeezed nearly 600 other stations into 50 “non-clear channels,” and relegated the 30,000 amateur operators to a completely different part of the spectrum where they couldn’t interfere with the commercial broadcasts.
In section six, the proposal also controversially calls for exempting wireless networks from almost all of the other provisions being suggested:
Because of the unique technical and operational characteristics of wireless networks, and the competitive and still-developing nature of wireless broadband services, only the transparency principle would apply to wireless broadband at this time. The U.S. Government Accountability Office would report to Congress annually on the continued development and robustness of wireless broadband Internet access services.
While the description of wireless networks as differing technically from wired networks is certainly accurate, the proposal for yet another tier of service contributed to the generally negative response.
The final three sections layout proposals for the scope of the FCC’s regulatory authority. The agency would be limited to oversight only over broadband service itself “but would not have any authority over Internet software applications, content or services.” Rather than taking preemptive action, the FCC would only be allowed to act on a case-by-case basis in response to complaints. Internet broadband service would be defined as a form of interstate commerce, removing it from the maze of local regulations it is currently subject to.
These last sections go a long ways towards addressing the broader free speech fears of groups like the Electronic Frontier Foundation, which labelled the ideas “good” (Cohn, 2010).
A Full Cycle
When viewed in the context of communications legislation history, adoption of the Verizon-Google proposal would seem reminiscent of the early days of radio regulation: A mass of vocal but disorganized users of the medium resist regulation on principle. Meanwhile demonstrable degradation of service through overuse reduces the amount of public good the medium can offer. Business interests organize and make a case for compromise regulations that strongly favor their positions.
The public’s voice in the net neutrality debate is fractured by an anarchic situation in which behaviors which are unlawful, destructive to the public good of the medium, or both, represent the far edges of the argument. While organizations like the EFF try to rise above the chaos, they often can seem a part of the din themselves. If there proves to be no better way forward than the “many Internets” proposed by Verizon and Google, we would do well to seriously consider the potential impacts of such an approach.
What the Verizon-Google proposal would do is separate the “hobbyist” traffic from the commercial traffic, in a manner strikingly analogous to the broadcast reallocation of 1928. It should be remembered that this approach also relegated educational and public interest broadcasting to a relative backwater of the spectrum. The Public Broadcasting Act of 1967 was an attempt to remedy this, but while it has produced a public good, the value of that good lags far behind comparable solutions in other countries that took a more proactive approach to the educational and public interest potentials of broadcast.
On the Internet a purely free market “pay-to-play” approach to prioritized network access likely would ensure that the producers of valuable, but less profitable, content would struggle to compete on delivery speeds and that their product would suffer. As the United States carries on a parallel debate about the state of our educational system in comparison to the rest of the world, it would serve us well to consider the uses of media in producing an informed, innovative and productive population.
In the end it may be that the only compromise for a public that seems unclear about whether it wants the Internet to be a utility or a service is to give them both: A utility that offers the open access we generally enjoy now, but is tightly regulated to ensure performance standards and free speech protections, plus parallel “priority” services including subsidized educational and public interest services. While similar in some respects to the Verizon-Google proposal, this approach would let the service providers pursue maximum profitability in some areas, in return for regulating profits in others.
References
American Telephone & Telegraph. (2010). Wikipedia, the free encyclopedia. Retrieved (2010, August 15) from http://en.wikipedia.org/wiki/American_Telephone_%26_Telegraph
Cohn, C. (2010, August 10). A Review of verizon and google’s net neutrality proposal. EFF Deeplinks Blog, Retrieved from http://www.eff.org/deeplinks/2010/08/google-verizon-netneutrality
Common Cause. (n.d.). Net neutrality. Retrieved from http://www.commoncause.org/site/pp.asp?c=dkLNK1MQIwG&b=4773657
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