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Brian C. Anderson
Its a good thing that Congress seems to recognizefor nowthat regulating the Internet is an acute danger to free political speech in America. Thanks primarily to Republican efforts, both the House and (narrowly) the Senate have fought back a push to establish in law the principle of network neutrality, a roster of whose supportersfrom Hillary Clinton, MoveOn.org, and the New York Times editorial board on the left to the Christian Coalition on the rightincludes some of the nations leading advocates for government regulation of the media.
What ignited the controversy is the possibility that the information bits that make up Internet traffic will no longer enjoy first-come, first-serve treatment, as has generally been the case until now. Freed up by recent Supreme Court and FCC rulings, broadband firms want to manage more actively the data pulsing through their conduitstheir cables, fiber optics, phone lines, or wireless connectionsoffering, for instance, new ultra-fast delivery for sites willing to pay extra, just as FedEx accelerates delivery of packages for a fee. They might offer as well their own additional services, such as online video or telephony, as part of the package.
These changes, critics claim, will wreck the Internet. From an open commons where surfers can access all sites on egalitarian terms, the Net will become a world of walled gardens, where broadband barons favor certain content (their own) and impede sites unwilling to pay high fees or selling competitors products or supporting controversial political views. To stop this, the reformers, organized in a Save the Internet campaign, wanted Congress to force Internet providers like Verizon not to discriminate among different types of traffic based on the traffics source, destination, or content, in the words of Net theorist David Isenberg.
In truth, however, mandated net neutrality is completely unnecessary. For the telecoms to become site-obstructing bullies would be an odd business model, explains tech guru George Gilder of the Discovery Institute. The providers have no incentive to kick anybody out, he says. They want to get as much content as possible on their conduit. Thats what attracts customers. This is why bloggers shouldnt fear that differentiated service will prove an enemy of openness.
Competition will give providers a positive incentive to stay honest. Say Verizon wants to charge Amazon oodles to join the fast lane, and Amazon refuses. Verizon could boot Amazon off its network in retaliation. But zillions of Amazon fans would jump ship to another supplier. The market works these things out, as it should, advises regulatory theorist Peter Huber. But meanwhile, many Internet giants like Amazon and Google are backing neutrality, because they dont want to pay any more for bandwidth, whichto match fast lane rivalstheyll have to in a non-neutral regime.
Political censorship is equally improbable. Christian Coalition president Roberta Combs worries that, without enforced neutrality, a cable company with a pro-choice board of directors could decide that it doesnt like a pro-life organization using its high-speed network to encourage pro-life activitiesand silence it. Sure, it would be legal [to block access], retorts Tim Lee, a contributor to the libertarian Technology Liberation Front blog. But it would also be commercial suicide, as millions of irate pro-lifers would switch to their local Baby Bell and call their Congresscritters.
Ah, but theres the rub, would-be regulators say. The Coalition of Broadband Users and Innovators, a group including Amazon, eBay, and other Net firms, claims that the broadband market is an entrenched cable/telephone duopoly that allows network owners to infringe or encumber the relationships among their customers or between their customers and destinations on the Internet. Theres nowhere else for consumers to turn, frets the Save the Internet site. Without new regulations, the broadband barons will conspire to control the Web for their own selfish ends.
Yet as Gilder observes, the broadband market is one of the most competitive arenas in the world economy. FCC numbers show that around nine out of ten U.S. zip codes have two or more broadband providers (and duopolies can be very competitive); 60 percent have four or moreand the rivalry for the digital last mile into the home or office is getting fiercer. In some suburbs, you now have a cable supplier, maybe two, you have the telephone company, youve got WiMax, you have various brands of satellite, WiFi, on and on, enthuses Gilder. Competition is a key reason, a Pew study finds, that 42 percent of Americans enjoy broadband access, up from 30 percent only a year ago. After a telecom price war drove down monthly broadband rates, middle-class and working households in particular signed up in droves.
A neutrality law would dampen this healthy competition. Without neutrality, Vanderbilt law prof Christopher Yoo, a leading thinker on Net regulations, informs me, providers could compete on quality of service, giving, say, voice communications a higher priority to make Internet telephony work better, or they could boost the security features of the network, in each case targeting a smaller subset of the market, like specialty stores in a world dominated by larger, efficient stores offering one-stop shopping. A neutrality law, forcing all traffic to be treated the same, would transform broadband into a kind of commodity. That would favor the largest firms, those with the largest economies of scale, elaborates Heritage Foundation telecom expert James Gattuso. Challengersespecially tiny oneswould have a hard time getting into the market.
Given todays bandwidth scarcitythe U.S. still lags far behind South Korea and many other nations in bandwidth per capita, despite all the competitionits more rational to use prices to allocate the resource efficiently. While someone sending personal e-mail may be perfectly fine with an occasional delay of a few seconds, Gattuso says, delay could be deadly if a hospital or health care provider was sending vital medical information. Creating Internet laneswith the fast lanes costing morehelps solve this problem.
Neutrality fans like to tout the innovation in Web services that the Internets first-come, first-serve approach to data has encouraged. A neutral Net would function like the electricity grid, argue University of Virginia professor Tim Wu and Stanford Laws Lawrence Lessig in a joint letter to the FCC. The electronics industry designs new and better electronics, safe in the assumption that American electricity will be provided without preference for certain brands or products. Similarly, Web innovators will be more likely to launch the next eBayand find investors for itknowing that all Internet conduits are equally open to them.
But that argument mistakenly assumes that the Nets infrastructure doesnt need constant and ample investment to upgradeso that it does not end up in as poor shape as the electricity grid. As Bernstein Researchs Craig Moffett testified to the Senate in March, despite billions in capital spending, our telecommunications infrastructure is woefully unprepared for widespread delivery of advanced servicesespecially videoover the Internet. Verizon anticipates that the typical Web surfer, who today uses two gigs of data monthly, will use 100 times that a decade from now, as he downloads high-definition movies and TV, music, and games. Todays networks simply arent scaled for that, Moffett reports.
Yet if government busybodies keep networks from tapping new revenue, forget about new investment. A net neutrality measure would just put a stop to it, Gilder predicts. As it is, Bernsteins Moffett notes, Wall Street is getting leery of network capital outlays. Verizons stock limped throughout 2005, for instance, due to the capital markets distaste for the expensive capital investments in [the firms] . . . fiber optic deployment, he says. Uncertainty about the regulatory future is a major reason for Wall Streets gloom. As the Progress and Freedom Foundations Adam Theirer suggests, enforced neutrality would essentially tell infrastructure operators and potential future operators of high-speed networks your networks are yours in name only and the larger community of Internet usersthrough the FCC or other regulatory bodieswill be free to set the parameters of how your infrastructure will be used in the future. Not a business to bet on. And so, with ever more information surging through the Internets overburdened pipes, such infrastructure socialism would mean a big slowdown.
Net neutrality would swiftly become a bureaucratic nightmare. Neutrality regulation might as well have been labeled the Telecom Lawyer & Lobbyist Full Employment Act of 2006 because it would generate mountains of regulation and litigation in coming years, says Theirer. You simply cant put something as amorphous as digital nondiscrimination mandates on the books and then expect that regulators wont abuse itand that means competing teams of lawyers, consultants, and economists will be hired to try to figure it all out. When they dont, the lawsuits will start flying.
Theres no guarantee that the quest for neutrality would stop with the providers, either. The educational site KinderStart has just slapped a lawsuit on Google for downgrading its page rank. Because of its prominence, the suit argues, Google has become an essential facility, and thus should face government review for fairness. Welcome to the newest right, says tech writer James DeLong: search engine neutrality. Of course, the arguments made against Googles freedom to run its business are analogous to those Google is now making against the telecoms.
The biggest reason to be thankful Congress resisted net neutrality: the scary prospect of Ted Kennedy and Nancy Pelosi trying to stamp out broadband traffic discrimination. Some of the most vocal neutrality advocates, including Save the Internet campaign organizer Free Press, relentlessly agitate for regulation of other media to fight corporate interests and guarantee fairness. The deeper agenda at work in the net neutrality debate, insufficiently noticed by most commentators, is the Lefts zeal to get a hold of the new media, which have given conservative voices powerful outlets, shattering the liberal monopoly over news and opinion outletsand regulate those outlets out of existence, so we can all go back to the days when the New York Times and other elite liberal institutions set the agenda.
Its thus not hard to imagine a network neutrality law as the first step toward a Web fairness doctrine, with government trying to micromanage traffic flows to secure equal treatment of opposing viewpoints (read: making sure all those noisy right-wingers get put back in their place). European Union advisory bodies have already called for such a rule, potentially forcing all opinion sites viewable in Europefrom tiny blogs to big news organizationsto post opposing opinions or face fines.
Its not primarily the telecoms and cable companies we should worry about as threats to Internet freedom. Its the government regulators. Should Democrats regain control of Congress, expect another drive to police the Web.