Saturday, November 22, 2008

The Great Net Neutrality Debate

The internet has become an indispensable tool for most of us. Our ability to use the internet depends on the transmission of data packets. How those data packets are transmitted through the internet cloud has become a matter of controversy. Here is a sampling from The Technological Liberation Front. Here is a sampling from TechDirt and here. The controversy revolves around the issue of whether the transmission of data packets should or should not be regulated by the government.

Sounds simple, but it is far from simple. Those who advocate that net neutrality should not be subject to government regulation assert that it is a private network and not subject to government oversight. Furthermore, the argument is made that if an internet service provider (ISP) attempts to break net neutrality concepts that the ISP will punished by the market and would be forced go back to a net neutrality operating concept. Given our free-market orientation this appears to be exactly what we would want.

Unfortunately, the utopian free-market concept of net neutrality crashes in the face of reality. The private market simply can not be trusted to implement a neutral internet from the consumers perspective.

First, those who vehemently argue against government regulation speak of all the problems that government regulation of the internet may create. The problem is that those who do not want regulation refuse with equal vehemence to offer the public any guarantees that they would operate under the principle of network neutrality. They state that if a network neutrality concern surfaces, the market will magically punish the abuser thereby restoring the operation of network neutrality.

This theoretical self-correction sounds reasonable but it breaks down in the face of reality. The average person does not have the equipment and technical expertise to monitor the internet. Companies, if discovered, can easily say "OOPS, sorry about that" and then try another abusive tactic. So if the ISP are unwilling to stand-up and offer the public reasonable guarantees of network neutrality, why should we trust them. "The check is in the mail."

Second, the argument is made that the ISPs would have little incentive to interfere with the movement of packets on the internet. This is bunk.

However, before I go further there are times when an ISP has legitimate technical reasons for managing packet flows on the internet. My comments pertain to when an ISP interferes with packet flows for ulterior reasons unrelated to technical issues.

Richard Bennett commented that: "In general, arguments that service providers can't do this or that as a practical matter are founded on sand. Advances in technology make many things practical tomorrow that are utterly impossible today, and we can more or less expect that to happen." This observation is reflected in reality. (Please note that Richard Bennett would, more than likely not agree with my statements below.)
  • In the ideal situation where the ISP is just providing the "pipe" there is no economic incentive to filter. However, when telecoms (as one example) are part of the network flow, there are significant economic incentives to filter. Sues AT&T For Blocked Phone Calls.
  • Then there is the corporate intimidation tactic: Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy
  • We are now living in a world where special interest groups are demanding that laws be passed to force ISPs to break network neutrality concepts.
    RIAA Gets Tennessee Law To Force Universities To Filter Networks For Copyrighted Content
  • As a follow-up to the special interest groups gaining favorable legislation is the concern that private companies are now obtaining governmental police powers. This would essentially allow private companies to censor the internet at their whim. This is not an idle concern. Harvard Law Professor Charles R. Nesson, stated "This is an unconstitutional delegation by Congress of executive prosecutorial powers to private hands," says Nesson. "That a private organization is allowed to take a huge chunk of government power and impose its will upon millions of people is, frankly, disconcerting,"
  • This may seem outlandish, but then we are in a free market economic system, so it may be possible for the likes of the RIAA or the MPAA to pay the ISPs to spy on internet traffic for the purpose of uncovering the theft of so-called intellectual property. Essentially, private enterprise (in the name of protecting their so-called property rights) believes that they would have the right to read your private "mail" (packet) without your permission.
Those who oppose network neutrality regulation make lofty utopian assertions that the invisible hand of the free market will protect the concept of a neutral internet. The reality is that there are a lot of issues that would frustrate the operation of a neutral internet if they are not resolved. Those opposed to network neutrality are unwilling to make guarantees that if they were in a position of power that they would operate the internet in a neutral manner. If they are unwilling to step up to the plate and take responsibility, the consumer is free to seek regulation that will protect their ability to surf the internet in a fair neutral manner. After all, it is the consumer who pays the ISPs to provide this service.

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