Nondiscrimination rules are on my mind right now, because I’m in the middle of a paper about the subversion of the communications law “constitution” over the last few years. Through some regulatory gymnastics and helped by a credulous Supreme Court, we’re now in the strange position of having entirely private general-purpose communications networks that can treat communications like their own dinner parties. That wasn’t the structure we set up as a country for the post, the telegraph, or the telephone.
Someone asked me tonight whether the ability to communicate should be re-framed as a right. I’m wondering about that. We often frame the right to clean water as a human right, and we are beginning to do the same thing with the right to communicate online. (2003 article here has useful references.) I know this has been an IGF subject. It does seem that a clear nondiscrimination rule, structural separation of transport from content, and a commitment to government investment in universal access would do the trick and would have the added benefit of being clearer than a vague “right.” Also – right against whom? Right against the communication companies? Interested in views and sources on this.
===
Congratulations to Joi Ito, Larry Lessig, and everyone else at Creative Commons for the big win today – described here at the Lessig blog.
“That wasn’t the structure we set up as a country for the post, the telegraph, or the telephone.”
What you say is exactly correct. The structure set up for the Internet is that it’s private. I was around when it happened. So much of what you write strikes me as very odd in a way, as from my perspective (no offense intended) it’s basically someone who *gives the impression* of just having discovered debates and controversies of around 15 YEARS AGO, and settled in law in 1996.
Again, it’s just so weird to me to see this stuff now, in 2008. It’s not that people didn’t make the arguments you’re making. But the overwhelming reaction would be they’d get flamed by Libertarian geeks ranting MY SERVER MY RULES!!!, and the ISP’s were considered business-good-good-good while government (as in a right to communicated) was bad, bad, bad (this is the atmosphere that Lessig’s _Code_ was arguing against). You’re literally proposing to REGULATE THE INTERNET!!! blah blah blah …
I don’t want to necessarily discourage you from arguing that view, and I’m kind of talking out of turn, but you did ask for “views and sources on this”.
FWIW, the UN lists the right to communicate in Article 19 of its Declaration of Human Rights (http://www.un.org/Overview/rights.html).
I think Seth hits the nail on the head. Regardless of whether you think it was for the best, policy makers made a conscious decision to privatize the Internet. So yes, the Internet has been treated very differently from the post, telegraph, telephone, railroads, etc.
So yes, a private network is somewhat like a dinner party, or a neighborhood restaurant. Afterall, restaurants discriminate all the time–they exercise nearly complete control over what content appears on their menu and what food is served on their plates. One could envision a common carrier regulatory regime for restaurants, where restaurants would be forced to open their menus to any dish, and their kitchens to any chef. Indeed, you could argue this is in the public interest. Customers would have more choices, and there would be vastly more competition for their palates. The business owner might think twice, however, before he decides to open another restaurant…
Personally, I have no problem with private networks being allowed to thrive as private businesses. You are making the argument that because communications is a right, the government should essentially seize control of private property. Instead of forcing a private entity to act like a public entity (a recipe for disaster, as a century’s experience with AT&T proved), why not just create a public entity? Public entities are designed to act against their own financial self-interest in order to serve a public good. If communications is a right, why not create a broadband equivalent of Medicare?
In the private sector, businesses would be free to experiment with business models and offer different services. If customers do not like discrimination under the private system, they could always use the public system.
Since you brought up the post as an example, I think this suits my vision perfectly. You can either choose to use the United States Postal Service, or unregulated private services such as UPS and FedEx.
Take a look at John McCain’s newly released technology “policy” if you want to look into the future of the private Internet.
Harry– John McCain does not want a private Internet by any stretch of the imagination.
First of all:
“John McCain Will Preserve Consumer Freedoms. John McCain will focus on policies that leave consumers free to access the content they choose; free to use the applications and services they choose; free to attach devices they choose, if they do not harm the network; and free to chose among broadband service providers.”
The fact that he claims to oppose net neutrality only demonstrates that he doesn’t actually understand net neutralty–because this IS net neutrality!
It would be like a candidate saying, “I don’t support raising taxes, but I do believe the government should take more money out of your paycheck.”
If you read carefully, you’ll find that he doesn’t oppose regulation of the Internet, he opposes “unnecessary” regulation of the Internet. This is like defining “reasonable” network management. As he told the WSJ today, he’ll put his faith in the FCC to fill in the gaps. Believing that the FCC should regulate the Internet is not at all consistent with a private Internet.
Furthermore, did you miss McCain’s press release today entitled “Ensuring the Personal Security and Privacy of Americans in the Digital Age.” It reminds us that McCain was a vigorous supporter of COPA, and a sponsor of COPPA. However you want to paint it (protecting the children, protecting us from terrorists, etc.), McCain wants to exercise strong state control over what happens on the Internet. In order to accomplish this, ISP’s need to be highly regulated arms of the government. I don’t know how you could possibly call this a private Internet.
He is, in fact, so inconsistent about this that his position is not easily summarized. I don’t think I disagree with DB. McCain wants a privately owned Internet censored by public authorities (or perhaps self-censored by private companies acting in a manner that will meet the nothing-offensive-to-5-year-olds standard of the FCC wireless Internet proposal). I blogged this a bit here. But the main point is that several of his positions can’t be reconciled with each other. Good material for some pointed questions in a debate, perhaps. Disclosure: I have nothing to disclose. I have neither given money nor lent any other support to either of these guys.