Verizon makes its arguments against the FCC’s net neutrality rules — and they are fraught with danger.
Verizon sees the net as its newspaper and believes it has First Amendment rights to control what goes on the net. This is why Doc Searls has taught me that it is dangerous to see the net as a medium. No, the net is a network and Verizon only offers access to it.
But there’s the next argument: Verizon says the net is its private property and so it makes a Fifth Amendment claim that imposing restrictions on its ability to impose restrictions on the net is like confiscating property without compensation.
The First Amendment argument is absurd on its face. Does Verizon really want to be responsible for everything distributed on the net, including libel, theft, and other illegal behavior? I doubt it. Verizon is no publisher.
The Fifth Amendment argument is a corner we’ve painted ourselves into by finding ourself dependent on a public good privately owned. But just as we make restrictions on private property — I can’t build a gas station on my house; I have to give access to public utility workers — so must we here.
Why? Is it not working? Is it presenting some new danger to society? Is it fundamentally operating any differently today than it was five or ten years ago? No, no, and no.
So why are governments so eager to claim authority over it? Why would legacy corporations, industries, and institutions egg them on? Because the net is working better than ever. Because they finally recognize how powerful it is and how disruptive it is to their power.
And that is precisely why we must fight against their attempts to regulate it, to change it, to throttle it, to oversee it, to insert controls into it, to grant them sovereignty over it. We also must resist the temptation to compromise, to accept the lesser of evils. Last week, Federal Communications Commissioner Robert McDowell warned of the danger of the U.N. asserting governance over the net, but then he turned around and argued that “merely saying ‘no’ to any changes to the current structure of Internet governance is likely to be a losing proposition.”
Why? I repeat: It’s not broken. This is why I urged French President Nicolas Sarkozy to take a Hippocratic oath for the net. This is why I have come to side with Sen. Al Franken on at least this: Net neutrality is not regulation; it is protecting the net from companies trying to change it. This is why the Reddit community is writing the Free Internet Act.
This is why I argued in Public Parts that we must have a discussion of the principles of an open society and the tools of publicness that enable it. This is why I wrote Public Parts. And that is why I’m posting the last chapter of the book, which argues that governments and companies are not protectors of the net and that we must be.
It’s not broken. Don’t fix it. Leave our net alone.
We don’t need no regulation.
We dont need no thought control
No dark sarcasm in the network
Government: Leave our net alone
Hey! Government! Leave our net alone!
All in all it’s just another brick in the wall.
All in all you’re just another brick in the wall.
That is the message I would like to bring to the e-G8 summit on the internet gathered by French President Nicolas Sarkozy this week in Paris.
I am apprehensive about a meeting of government and industry that begins with the presumption that they wield authority over the internet, the people’s internet. Cory Doctorow decided not to attend, declaring it a “whitewash” for regimes that are at “war with the free, open net.” Perhaps that’s the right decision. Given the chance to go, I decided to witness it up close and say what I have to say so at least I can say I said it. And that is this:
The internet was born open, free, and distributed. As conceived and built, all bits are created equal. It must stay that way. Sarkozy called this meeting to discuss the growth of the internet. It will grow only if it is open and free.
Like John Perry Barlow, I believe that governments have no sovereignty in the net. There is no consent of the governed as there are no governed there. Governments are not the appropriate bodies to protect the internet. When one government assumes that authority, all will. If the U.S., the U.K, the E.U., the U.N., or the G8 impose their wills on the net — no matter how benevolent they claim to be (and none should be trusted) — then China, Iran, Turkey, Saudi Arabia, and no end of tyrants and despots will also claim the right to govern the net. We will end up living under the high water mark of regulation. That means the death of the open net and all it affords society. Instead of reducing the internet through regulation, government should protect the internet.
Companies are also not to be trusted as protectors of the net. Even as I praised Google for at long last deciding to stop doing the bidding of censorious Chinese dictators, it was negotiating a cynical devil’s compact with Verizon to apportion the net into a neutral wired net and a constrained wireless net. No, companies are not to be trusted. The most appalling thing about the Google-Verizon-FCC pact was that the people were not at the table. These companies and agencies presume to cut up our internet and do not even try to give the appearance of including us. That is the dangerous vacuum they try to fill.
Some argue that protecting net neutrality is a form of government regulation. At South by Southwest, Sen. Al Franken convincingly counters that all net neutrality is doing is assuring that the internet is not changed, not perverted from its original state of freedom. He exhorted the crowd of net people, creative people, and entrepreneurs: “It is time for us to use the internet to save the internet.”
The pity is that this meeting on the future of the internet and its growth was called by a head of state and not by us, the people of the net. We have only ourselves to blame. Imagine if this meeting had instead been called by some other body closer to the people with preservation of net freedom as its agenda: an Electronic Frontier Foundation, a Mozilla Foundation, a Berkman Center, SXSW, a university, students in Egypt, an ad hoc disorganization of people online… who?
And what would such an assembly do? I have argued that we need to have a discussion of the principles of the net. I don’t think we will ever get much past discussion, as I do not want to see the imposition of governance on the net from government or corporations or self-appointed bodies, either.
But we must have an open and vigorous discussion of principles so we can discern the shape of our beliefs. In the course of that, I argue at the conclusion of my book Public Parts, “some truths will become self-evident. We will come to examine what matters to us and what we must protect. We will expose different views, priorities, dangers, and needs. Most important, we will have an expression of some principles to point to when powerful institutions try to control our net and diminish our publicness, power, and freedom.”
I welcome the discussion in Paris. I wonder about context set by the convener and the congregants it gathers. Yes, government should be at the table. See German Justice Minister Sabina Leutheusser-Schnarrenberger also calling (auf Deutsch) for a debate over digital values. Yes, companies should be at the table. Like it or not, they build the net. But the table should be ours, not theirs.
I. We have the right to connect.
II. We have the right to speak.
III. We have the right to assemble and to act.
IV. Privacy is an ethic of knowing.
V. Publicness is an ethic of sharing.
VI. Our institutions’ information should be public by default, secret by necessity.
VII. What is public is a public good.
VIII. All bits are created equal.
IX. The internet must stay open and distributed.
The last one is the internet’s best protection: its own structure. To the leaders gathered in Paris, I say of that architecture: Primum non nocere. First, do no harm.
* * *
I am also set to be on a panel about privacy and data. There, I plan to say that the framing of the discussion is limited and prejudicial. Why is the discussion about privacy? It should also be about protecting publicness.
The internet is our greatest tool of publicness ever. It is everyperson’s Gutenberg press. It enables anyone to speak to everyone. It allows revolutionaries to organize and supports their revolutions. It brings transparency to governments and markets. It helps us find and organize our own publics, across boundaries, apart from mass labels. We should be discussing protecting the internet rather than protecting us from it.
In Der Spiegel (auf Deutsch), Christian Stöcker warns against the demonizing of tools. That is, I fear, the starting point of this discussion, like so many others. If this discussion is about the growth of the internet, then we should guard against restricting it because of prospective fears before we even fully understand it.
At this entire meeting, we must be aware of the internet as a means of disruption. That is why it frightens institutions of legacy power and why they hope to regulate and limit it, using convenient masks — privacy, security, civility…. And that is why I worry when those institutions call a meeting to discuss governing the agent of their own disruption.
* * *
There is no reason for me to be at the E-G8 except that I happen to know people who invited me (after the initial lists were out). No one elected me. I have no standing to represent anyone. But I would like to try to represent some of your views, as best I can. So please enter into the discussion here.
(Full disclosure: As an academic without corporate support, I accepted travel accommodations from Publicis, which is organizing this meeting on behalf of the French government. I did not pay nor am I being paid to attend.)
: Here is a petition urging Sarkozy et al “to publicly commit to citizen-centered policies like expanding internet access for all, combating digital censorship and surveillance, limiting online intermediary liability, and upholding principles of net neutrality.”
* * *
FROM PARIS: I got to ask my question of Sarkozy this morning. He acknowledged in his talk today that government does not own the internet. I said that if a government asserts authority over the internet, any internet can. So I asked him and the G8 to take the Hippocratic pledge: First, do no harm.
He mocked the question, saying that was easy, that he would take the pledge. Ah, but then he defined harm. He asked whether it was harmful for the government to protect intellectual property, security, children… Having no microphone now, I could not say that, indeed, it could be harmful.
I write from the city where Gutenberg’s erstwhile partner and funder, Johann Fust, was nearly arrested because he came here to sell printed Bibles. The booksellers in Paris called the policy on him, declaring there was no way he could have so many Bibles except from the work of black magic. Well, today, the internet is still black magic. We don’t know what it is yet. To define it, restrict it, regulate it, limit it before we even know what it is, there is danger there.
Yes, President Sarkozy, you can do harm.
: Here is video of Sarkozy’s talk and my Q&A (starting at 48:10):
: LATER: Here’s Dave Morgan’s good summary of the event.
UPDATE: It’s looking more and more to me as if the New York Times report that provoked the first half of this post went too far. See the footnote below with denials of a deal from Verizon and Google, though those statements leave much to be asked: namely, what are the discussions; what is the compromise over net neutrality? But I just read this from a CNBC interview with Eric Schmidt that spoke more clearly: “Schmidt clarified that the net neutrality he advocates is not a neutrality between different types of content, but between the same type of content. He wants to make sure that there’s no discrimination between one video download over another.” So under that rubric, a YouTube video would not get discriminatory treatment over my video.
Update on the update: The Times stands by its story. What we need here is a good dose of transparency. It is, again, our internet they’re talking about.
The original post:
* * *
The report that Google is making a devil’s pact with Verizon for tiered internet service is disturbing because I wonder whether people inside Google are still asking that vital question: “Is this evil?” I wonder whether Google is still Google.
I don’t mean to come off like a high priest of the net neutrality church. But if ISPs like Verizon can charge tiered pricing for quality (vs. unquality?) service, then it’s the consumers who’ll get screwed because costs will be passed onto us. ISPs (like newspapers) want added revenue streams but those streams always end up at our feet. But we know that.
What also concerns me is that creators will get screwed, too. Only the big guys will be able to afford to pay ISPs for top-tier service and so we return to the media oligarchy that — O, irony — YouTube and Google broke apart. Google, I fear, is gravitating back to the big-media side because it wants those brands on YouTube so it can get their advertisers on YouTube because those advertisers are still too stupid to see where the customers really are. And then we’re back to a world of big-media control over what we get to see. It was the millions of little guys — people who made their own videos, people who embedded videos — who made YouTube YouTube.
But that’s short-sighted strategizing, I think — I hope — because fragmentation is infinite; blockbusters will get ever-harder and ever-more-expensive to create; advertising will catch up with reality, the real world, and customers and (unless the Wall Street Journal ruins it) become far more targeted and relevant; advertising will also start to fadeaway; the mass market will shrink.
But this is a last-gasp attempt to hold onto mass-market economics (vs. open-market scale). [Craig Roth in the comments makes the critical point that the story I linked to is supposition rather than announcement, a caveat I certainly should have delivered. As I said in response to him, I thought this was worth discussing before it was fait accompli in the hopes that it won't be.]
It’s an uncomfortable moment for a Google fan boy. This report comes at the same time that Google killed Wave. Now Wave has had its detractors who are now cackling, but it’s not the specific platform that concerns me. It’s that Google can’t figure out how to launch new platforms. Wave was a bust. Buzz was a bust. Knol was a bust. Orkut was mostly a bust. Brilliant people like Gina Trapani hung their hats on these platforms; she wrote the book on Wave and others started developing it and now the rug’s pulled out from under them because Google didn’t support their development, which is what would have made Wave a success. Evil or merely rude?
The reason these efforts were busts is because Google didn’t think them through, didn’t have the corporate discipline to find and execute on clear-eyed strategy. I’m all for beta — I learned that lesson from Google — but you can’t just spend your life throwing shit against the wall to see what sticks. Eventually, you’re knee-deep in shit. But you can do that for a long time — if you have lots of money. A poor startup uses betas to learn precious lessons because they can’t afford to fail. This rich company is using betas, I fear, rather than making hard decisions up front — because it can afford to. So Wave may have ended up dead anyway but if it were run by entrepreneurs it would have struggled long and hard before taking its last breath.
I worry that Google isn’t an entrepreneurial company anymore. It didn’t start those platforms under the hard economics of entrepreneurship. And it hasn’t nurtured some outside entrepreneurs well. If it did, Dodgeball would be Foursquare today.
My real fear then is that Google is too big. I certainly don’t mean that in the way that EU regulators do: “so big we have to rule it.” Uh-uh. No, I mean it may be too big for its own good. Too big for the right hand to find the left hand and have coherent strategies for operating systems (Android v. Chrome) and applications (Docs v. Wave). So big that it starts to identify with other big guys (ISPs and Hollywood entertainment conglomerates). Big is a fine thing when it brings critical mass and the freedom to innovate. As Eric Schmidt himself says, lack of innovation can kill a tech company. So can bad innovation — fat innovation.
I’ve never bought the arguments that Google is a one-trick pony. Honda is a one-trick pony; it makes cars. That’s not Google’s problem. Its problem is that everything it faces is new and it can’t ever afford the luxury of leaning back on old lessons and old relationships. So what does it hold onto on that rapids ride? It has to hold onto its mission — organize the world’s information, etc. — and its evolving definition of evil so it doesn’t stray. It also needs to find the organizational structure — the firm-jawed management — to force different teams with different agendas to work to shared goals and to hold them to entrepreneurial discipline.
All of these are just early warning signs — every early. It’s good — for Google and also for a fan boy like me — to see these cracks because, used properly, they are lessons that help a company get back on its track and shade its eyes from the bright glare of hubris. But only if they ask the really hard questions. Like, is that evil?
: MORE: On a different thread, I also want to note that I think the way this devils’ deal works out is that it will give the FCC and possibly even the FTC and Congress the rope they need to hang ISPs on net neutrality. Is that Google’s really evil plan? It doesn’t like regulation but wants it in this case and so it’s creating the invitation for it? Naw. As I said, I’m not a conspiracy theorist. In any case, I do think that such a deal will invite regulation.
: I won’t cry for ISPs. I was at a meeting of cable ISPs some years ago when they were all cackling about their margins on broadband exceeding 40%. They ain’t hurting. The solution to all this remains competition. Remember that Google’s founders entered the big spectrum auction a few years ago to force neutrality and they want broadcast white spaces opened up to become “wi-fi on steroids” and thus competition for broadband providers.
: ALSO: I want credit for not making a WWGD? gag. I leave that to Twitter. But it may, indeed soon be time for a sequel (or update).
: LATER: Verizon put a statement on its public policy blog that says the Times report linked above is “mistaken.” It doesn’t say whether there’s any agreement but talks about its “purpose” — a “policy framework that ensures openness and accountability, and incorporates specific FCC authority, while maintaining investment and innovation. To suggest this is a business arrangement between our companies is entirely incorrect.” I’m not sure what that means. The more transparency about these dealings from all parties — including the FCC — the better.
Google said on its public policy Twitter feed: “@NYTimes is wrong. We’ve not had any convos with VZN about paying for carriage of our traffic. We remain committed to an open internet.”
The AP quotes the FCC saying that Google and Verizon are involved in stakeholder talks and Verizon is quoted saying that it is talking with Google about a “compromise on net neutrality” in the AP’s phrasing. The question remains: What are they talking about?
I’ve amended my proposed Bill of Rights in Cyberspace thanks to a suggestion in the comments from Jeff Sonderman: All data are created equal. I made that all bits are created equal, which broadens it somewhat and is quite relevant today in the discussion of net neutrality that will explode because of an Appeals Court decision in Washington that told the FCC it did not have jurisdiction to tell Comcast to stop discriminating on bits.
Here’s the rub: On the one hand, I do not want government regulation of the internet. On the other hand, I do not want monopoly discrimination against bits on the internet. I see it as a principle that all bits are, indeed, created equal. But how is this enforced when internet service is provided by monopolies? Regulation. But I don’t want regulation. But… That is the vicious cycle of the net neutrality debate.
At a Union Square Ventures event a few years ago, Tom Evslin said that regulation is a temporary necessity until the marketplace and technology open up internet access to competition. In a competitive environment, we won’t tolerate the ISP that hampers our service. Now, we’re stuck.
The other path to fixing this is legislation. But, of course, that is another form of regulation of the internet: a claim of sovereignty by government over the net that I want to avoid.
All this, I believe, is all the more reason to have a set of principles and standards we, the internet nation, can point to, all the more reason to have a Bill of Rights for Cyberspace. Here is mine, amended:
I. We have a right to connect.
II. We have the right to speak.
III. We have the right to assemble.
IV. We have the right to act.
V. We have the right to control our data.
VI. We have the right to control our identity.
VII. What is public is a public good.
VIII. All bits are created equal.
IX. The internet shall be operated openly.
Al Gore gives a rousing defense of network neutrality as nothing less than the key to protecting democracy. In an excerpt from his new book in Time, he begins with Iraq:
It is too easy–and too partisan–to simply place the blame on the policies of President George W. Bush. We are all responsible for the decisions our country makes. We have a Congress. We have an independent judiciary. We have checks and balances. We are a nation of laws. We have free speech. We have a free press. Have they all failed us? Why has America’s public discourse become less focused and clear, less reasoned? Faith in the power of reason–the belief that free citizens can govern themselves wisely and fairly by resorting to logical debate on the basis of the best evidence available, instead of raw power–remains the central premise of American democracy. This premise is now under assault.
American democracy is now in danger–not from any one set of ideas, but from unprecedented changes in the environment within which ideas either live and spread, or wither and die. I do not mean the physical environment; I mean what is called the public sphere, or the marketplace of ideas.
He then argues that we wasted too much time watching celebrity news, from J.J. to Paris. The result:
While American television watchers were collectively devoting 100 million hours of their lives each week to these and other similar stories, our nation was in the process of more quietly making what future historians will certainly describe as a series of catastrophically mistaken decisions on issues of war and peace, the global climate and human survival, freedom and barbarity, justice and fairness. For example, hardly anyone now disagrees that the choice to invade Iraq was a grievous mistake. Yet, incredibly, all of the evidence and arguments necessary to have made the right decision were available at the time and in hindsight are glaringly obvious.
That’s a logical leap not unlike the one that got us there: O.J. has done many bad things. But I hardly think we can blame him for getting us into Iraq, too.
Ah, but no, he’s really saying it’s television’s fault as it is exploited by a “new generation of media Machiavellis.” It’s a circuitous route, but I agree with where he lands: the value of an open internet. How we assure that, though, is still a matter of debate.
So the remedy for what ails our democracy is not simply better education (as important as that is) or civic education (as important as that can be), but the re-establishment of a genuine democratic discourse in which individuals can participate in a meaningful way–a conversation of democracy in which meritorious ideas and opinions from individuals do, in fact, evoke a meaningful response.
Fortunately, the Internet has the potential to revitalize the role played by the people in our constitutional framework. It has extremely low entry barriers for individuals. It is the most interactive medium in history and the one with the greatest potential for connecting individuals to one another and to a universe of knowledge. It’s a platform for pursuing the truth, and the decentralized creation and distribution of ideas, in the same way that markets are a decentralized mechanism for the creation and distribution of goods and services. It’s a platform, in other words, for reason. But the Internet must be developed and protected, in the same way we develop and protect markets–through the establishment of fair rules of engagement and the exercise of the rule of law. The same ferocity that our Founders devoted to protect the freedom and independence of the press is now appropriate for our defense of the freedom of the Internet. The stakes are the same: the survival of our Republic. We must ensure that the Internet remains open and accessible to all citizens without any limitation on the ability of individuals to choose the content they wish regardless of the Internet service provider they use to connect to the Web. We cannot take this future for granted. We must be prepared to fight for it, because of the threat of corporate consolidation and control over the Internet marketplace of ideas.
So here’s the idea: We post video questions for the candidates on YouTube — tagged PREZCONFERENCE — and see which ones they answer and don’t. I’ll put up the interesting ones on PrezVid (soon new blog, PrezConference). Yesterday at the VON conference, I asked folks for their questions. Here are a few. More at PrezVid and more on YouTube.
Jeff Pulver and Liz Stephans have questions about net neutrality and internet policy for all the candidates.