Article: Network Neutrality and "Saving the Net"

Earlier today my brother pointed me to an outstanding article entitled "Saving the Net" by Doc Searls. It is about the current rift over how the net will and should be regulated... centering on a framework for the net that's been getting kicked around a lot lately, network neutrality. Network neutrality is the concept that the network- as provided by DSL and cable service companies- should not distinguish between different types of use. For example, you can use your DSL or cable for checking your email, sending videos, calling someone up on VOIP, and a slew of other things. No one use should be held above any of the others.

The threat: Technology experts who tend to have libertarian leanings have expressed concern over the U.S. Committee on Energy and Commerce's recent discussion to create a statutory framework for Internet Protocol and Broadband Services. A second call to action came in the form of SBC acquiring AT&T, and Verizon acquiring MCI. This compounded fears that were birthed earlier this month by SBC CEO Edward Whiteacre's comments in a Business Week's article (from an analysis on WashingtonPost.com):

Asked about Internet firms such as Google, Microsoft Corp.'s MSN and online phone service Vonage, Whiteacre told Business Week that those companies were dependent on SBC's lines -- or "pipes" -- for their success in reaching consumers.

"Now what they would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. So there's going to have to be some mechanism for these people who use these pipes to pay for the portion they're using," he said, according to Business Week Online's edited excerpts of the interview.

"Why should they be allowed to use my pipes? The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo or Vonage or anybody to expect to use these pipes free is nuts," he said.

You can probably understand why this might rub some people the WRONG way. The fear is that the two recent telecommunication megamergers have created what Searls' calls "Ma Bell" in the form of SBC/AT&T and "Pa Bell" in the form of Verizon/MCI. With more consolidation, these companies will move from regulating the amount of broadband you receive (for example really really heavy users put more stress on SBC's 'pipes') to regulating ACCESS to the CONTENT of the internet. Think of it as a toll bridge that charges you for using the bridge and THEN turns around and says that you need to pay for each lane you want to use. We'll call it "superhighway robbery."

Techdirt and Susan Crawford point out that the real issue, when it comes down to it is about competition, and allowing more options for the consumer. Crawford writes,

We need to find higher ground. I think the real fight should be over rights of way and platform competition. There's a clear lack of competition in the last mile -- that's where choice has to exist, and it doesn't now. Even the FCC's own figures reveal that cable modem and DSL providers are responsible for 98% of broadband access in the U.S., and two doesn't make a pool. If the FCC is getting in the way of cross-platform competition, we need to fix that. In a sense, we need to look down -- at the relationship between the provider and the customer -- rather than up at the relationship between the provider and the bits it agrees to carry or block.

...[following Whiteacre's comments] That's the voice of someone who doesn't think he has any competitors. Competition in the market for pipes has to be the issue to focus on, not the neutrality of those pipes once they have been installed. We'll always lose when our argument sounds like asking a regulator to shape the business model of particular companies.

This is when it becomes increasingly harder to distinguish theory from law. In this case it's clear that the way legal concepts are articulated has a direct influence on how much political clout and legitimacy they have. If the Silicon Valley crowd can, as Crawford suggests, argue their case in terms of economic markets and the problem of too little competition- for example, SBC/AT&T's failed policy towards municipal wi-fi. In the case of Eldred v. Ashcroft, Searls' argues in a lengthy post that it is the inability to articulate the legal and technological issues in a way that are politically digestible that lost the case:

The issue here isn't enumeration, or the ability of Congress to pass laws of national scope regarding copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the conservative justices who sided with the majority, is more likely the protection of property rights. In order to argue against that, Lessig would have had to argue for a communal property right that was put at odds with the individual property right of the copyright holder, and even that would be thin skating at best. So the Supremes did the only possible thing with respect to property rights and the clearly enumerated power the Constitution gives Congress to protect copyright.

Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.

This isn't just a battle of words. It's a battle of understandings. And understandings are framed by conceptual metaphors. We use them all the time without being the least bit aware of it. We talk about time in terms of money (save, waste, spend, gain, lose) and life in terms of travel (arrive, depart, speed up, slow down, get stuck), without realizing that we're speaking about one thing in terms of something quite different. As the cognitive linguists will tell you, this is not a bad thing. In fact, it's very much the way our minds work

So code might matter, but words matter just as much. The issue in Eldred was Congressional power to extend copyright terms again and again, essentially making the proposed limits on copyright worthless. Lessig, who acted as lead counsel for Eldred, has a detailed retrospective of the case that outlines some of these concerns. When it comes to the next fight- the providers of 'pipes'- the property rights arguments are likely going to be clearer. In Eldred, it was the concept of public domain v. the business of copyright. Here, it's the business of internet service providers (Ma and Pa Bell) v. the business of internet content providers (Google, Yahoo, ect.). Economically speaking, its a more evenly matched battle.

For this reason, I think Searls' piece is somewhat extreme. But he makes some good points about issues that will become increasingly important as Google's plans for municipal wi-fi heat up. And then there's the second issue of copyright legislation. I'm not quite sure if I buy into the concerns that Congress will essential regulate the internet- closing the analog hole with the HD Radio and Content Act of 2005 is a good example. I'm not a huge fan of DRM, but I imagine that the recent Sony debacle coupled with increasing evidence that p2p has less of an economic impact than was once believed may erode some support for the RIAA and its ilk- although if the Act were to pass, it would be a staggering blow for consumer and artist alike. If any one lesson should be taken from the rift over network neutrality, I think Searls' final section on fighting back with words is it: given the influence of politics on the regulation of the internet, articulation becomes vital.