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December 12, 2007 4:00 AM PST
Perspective: Save Internet freedom--from regulation
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Similar legislation has failed in both the House and Senate in the past, but proponents of Net neutrality haven't given up.
If only they would.
The Internet has thrived in large part because it has managed to sidestep a barrage of efforts to regulate it, including laws to ban indecent material, levy sales tax on e-commerce, require Web sites to provide "zoning" tags, and to criminalize spam, file sharing, and spyware.
Some of these laws have been overturned by the courts; some died before being passed; and the rest--well, the rest are effectively ignored, thanks to the Internet's remarkable ability (so far) to treat regulation as a network failure and reroute around the problem.
Proponents of Net neutrality--some of whom have led the battles against other forms of network regulation--argue that this law is different. Mandating Net neutrality is simple, fair, and preserves the very features of the Internet that make it so valuable. Indeed, the Senate's version of Net neutrality legislation carries the lofty title of Internet Freedom Preservation Act.
Who could be against preserving freedom?
But the information superhighway to hell is surely paved with good intentions.
That's the lesson of America's first misadventure in enforcing "neutrality" on a key piece of national infrastructure: the railroads.
Nearly 100 years ago, shippers in cities between the Mississippi and the West Coast, which were largely served by only one road, found that they were being charged higher rates to subsidize competitive tariffs from cities east of the Mississippi, where shippers had several choices.
Like those calling today for Net neutrality, the Intermountain shippers demanded "reasonable and fair" rates of carriage. Congress agreed, but it left the definition and enforcement of these deceptively simple terms to the Interstate Commerce Commission.
So, what was "reasonable"?
The ICC struggled for decades to answer that single question, spending 20 years and hundreds of millions of dollars before giving up, unable to agree on how to value the railroad's assets in order to calculate a reasonable rate of return. With the industry consumed by this "simple" effort to make its operations "fair," other forms of transportation emerged and ultimately put the railroads out of their misery.
More recently, the Civil Aviation Board (CAB), which micromanaged U.S. commercial air travel until 1978, worked to ensure "fair" ticket prices for everyone but in practice created a mess of routes, subsidized carriers, and indecipherable rate structures. Since the CAB was dismantled, air travel has not only expanded but, thanks to market forces, is now also cheaper for consumers.
And what about the Sarbanes-Oxley Act, the law passed in the wake of Enron, WorldCom, and other corporate scandals? SOX requires "transparency" in financial statements, a worthwhile goal, but one that, so far, has cost public companies that weren't committing fraud billions of dollars in compliance. No one seriously believes that money has helped investors make sense of a single balance sheet.
The problem with "simple" regulations is that they never are--especially when the industry being regulated, thanks to new technologies, is evolving rapidly.
"Net neutrality" only sounds obvious. Cable operators already discriminate between your Internet traffic and your TV traffic, in favor of the latter, because the programming needs priority to maintain its integrity. The Federal Communications Commission--left, like the ICC before it, to work out the details under all proposed Net neutrality legislation--would need to carve out an exception for that non-neutral behavior.
There will be many such exceptions, some based on network activities not yet invented. Indeed, in response to the remarkable range of unplanned uses to which the Internet has been put over the last 10 years, some of its original designers are working on technologies to optimize the Web's increasingly complex traffic patterns--efforts that would run afoul of Net neutrality proposals, perhaps unintentionally.
Worse still, imagine how complaints of non-neutral rates of carriage would be investigated. The FCC would have to monitor network traffic and seize and open the packets in question. So why do the same civil-liberties groups that recognize the value of keeping the government out of Internet content want to open a loophole large enough to drive several Mack trucks through?
Then, as now, there is an appropriate role for government. The development of the U.S. railroad system was greatly aided by initial investment in infrastructure, including basic research, land grants, rights-of-way, and efforts to help the industry agree on standards for track gauge (like the Internet, an open standard), operating techniques, and interline cooperation.
State and federal governments have performed similar positive services on behalf of the national communications infrastructure, and they continue to do so in the form of auctions, basic protocols, and "spectrum grants" for new communications services such as digital TV. (These days, state and federal dollars aren't being invested in communications infrastructure. Witness California's recent massive infrastructure bonds, which include transportation, education, and water, but not communications.)
Good infrastructure management establishes the rules for a competitive market, and then stands back to let buyers and sellers bargain toward the most valuable use of assets.
We need that helpful kind of government intervention, not a stake in the heart of a thriving and rapidly evolving infrastructure.
Let's preserve Internet freedom--freedom from regulation, that is.
Biography
Larry Downes, a communications industry consultant, is a nonresident fellow at the Stanford Law School Center for Internet and Society. He is the author of
See more CNET content tagged:
Net Neutrality,
railroad,
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Mississippi,
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Clearly there are issues that needed to be clarified around net neutrality but that doesn't make it a mutually exclusive proposition. I am amazed how any can not clearly see the need to protect the internet from this sort of manipulation.
You talk about new services and applications that no one has thought of yet being affected by these regulations. How about the new services that people have thought of like bit torrent, and how they were/are effected? How Comcast was caught red handed spoofing packets to save them a few dollars on bandwidth? Before we start with the theoretical lets deal with reality.
No regulation is perfect, and in a sense you are right, the answer is not regulation of the terms of service, instead its regulation of the ISPs, its mandating consumer choice by forcing the owners of the pipes to open them up to any ISP, its the FCC demanding that broadband availability statistics accurately represent area penetration. Then the free market forces will work wonders for the Internet. Until then, we have a duopoly, which is ripe for abuse, real not theoretical.
If you want to spend tax dollars ineffectively the wouldn't it be better to simply have the government spend millions posting these "infractions" to freedom somewhere that they could be queried easily? That way atleast consumers could have a choice before they have to decide on things like who their providers will be.
There are thousands of things the government could do effectively that they don't. Instead they pay millions on ineffective regulation developed by the people who have financial interest involved.
Keep the government out.
In any case, carriers (please note that I didn't use the term "ISPs")can provision multiple services across their IP networks. One can be the Internet as we know it, another can be voice services (plenty of cablecos and telcos are using IP for voice transport and delivery without being accused of non-neutrality), another can be TV (a technology in current deployment), and another can be ..... well, other sorts of services in need of high-quality, predictable network performance.
In that case, the "Internet" is very, very neutral and very, very limited. But certain other premium or expedited services are delivered over the carriers' IP network at a premium price charged to someone or another.
The Internet, then, is neutral as can be while perhaps diminishing in importance.
The railroads opened up much of the USA's land to viable agriculture in the mid-19th century. And they had monopolies to most places. Some of the railroads got too clever, though. Instead of being just carriers, charging a fee for freight based on, for instance, the weight and type of freight, they became shippers, buying the raw goods from the producers and selling them to consumers at the other end. Of course as monopolist shippers, they were able to squeeze down the price at the farm end and extract huge profits. In response to this abuse, the ICC was created. The ICC imposed common carrier regulation on railroads, separating the shipper from carrier functions.
The FCC has long imposed common carrier regulation on telephone companies. That is what made the Internet possible -- ISPs paid the telcos to transport their bits, not for the value of the information that the bits represented. In 2005, the FCC overturned this longstanding principle and allowed the ILECs to be shippers of bits. For instance, AT&T now considers the content of its customers' IP sessions to be their own "business documents", not private. That's the kind of abuse we're now facing.
The answer is not to regulate shippers (the Internet). The answer is to regulate carriers (telephone companies), so that there is always a common carrier available, and therefore the market for competitive ISPs can operate as it used to, and as it still does in civilized countries.
I'd like to paraphrase it and use it for advocacy in my local community.
All of the analogies with bureaucrats who could not set the right price are wholly misleading. The price Verizon can charge websites (with their own separate server hosts and ISPs) for access to my eyeballs should be $0.00. Ditto third-party applications like video and music services and VoIP. I've paid for my bits; let me use them as I see fit.
If I'm using too many, tell me what the cap is (i.e., be honest that there is one and help me monitor my usage) and cut me off or charge me more. Or just traffic shape so that my first MB of the day comes through much faster than my 2,000th. (Comcast is already using this latter option, which makes their BitTorrent blockade unnecessary.)
I pay Verizon already, and the websites pay at their end. Verizon, Comcast and friends want to add a third charge, the "protection" of not messing with internet data. "Gee, you got a nice web business here. [http://Cracks knuckles.|http://Cracks knuckles.] I'd hate to see anything happen to it, ya know? Let us help you make sure that doesn't happen."
This is only possible because they have an incumbent market position in an industry that is noncompetitive due to substantial market failures?especially the problems of sunk costs and unusually steep economies of scale?creating virtually insurmountable barriers to entry. (Why is it that free marketeers never want to admit that a given market fails to meet the axiomatic basics, especially competition? Why are they satisfied with duopoly?)
The internet cost contract now is "pay at the edges." ISPs want to add a third charge that would be easy to spot and ban. Ban that charge, and ban nefarious forms of "network management" that rely upon targeting specific programs, content, etc. (Comcast: demonstrably guilty. See: http://www.eff.org/wp/packet-forgery-isps-report-comcast-affair)
Even Kevin Martin could enforce that.
Instead, we have neoliberal industry apologists like Downes and Christopher Yoo insisting regulators couldn't possibly get it right. This rhetoric is built on urging you to remember the history of transportation regulation?and ignore the history of telecommunications regulation.
Ignore the long and steady decline in long distance prices due to regulations such as mandated interconnection. Forget about the explosive growth of dial-up internet services built on regulation that forced the Bells to treat all "calls" equally?even when they desperately wanted to surcharge those carrying data. Forget AT&T's attempt to ban the Hush-a-Phone; large companies have a great track record of permitting third-party innovation on their networks without anybody forcing them to do so. Ignore the fact that broadband providers in the US have already throttled VoIP traffic and that Telus in Canada blocked a website that supported telecom workers in their strike against the company.
The bad historical analogies with transportation policy are misunderstood and misapplied so often that the trope has become cliché. Yet no matter how many times sensible folks point out that zero is a pretty easy price to set, Downes and his ilk are invoking the complexities of transportation policy.
Just leave it to "the market" and all will be fine? News flash: there is no competitive market, and the incumbents are already beginning to destroy the internet.
For an even more thorough rebuttal of these industry apologists (shameless self plug), please see:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=902071
1. we have no real choice in broadband internet providers. DSL (Telco) or local Cable provider
2. Broadband providers are looking for a bigger piece of the pie (It came right from the mouth of Verizon's CEO). They want to unfairly double dip and they make no bones about it.
3. Broadband providers have already shown they are willing to do sneaky things to our traffic (spoof it, rewrite it on the fly).
The US, the country that invented the internet is now sadly lacking in broadband connectivity (behind Japan, south Korea etc), precisely because we just sat around and trusted "the market" aka the Telco's and the Cable companies, and the FCC to look out for our best interests. So its time to step in, step up and do something about it.
THE INTERNET BELONGS TO EVERYONE - EQUALLY - GET THAT
THROUGH YOUR LIBERTARIAN HEAD!!!!