Why Communications Law
I'm speaking tomorrow at Boalt Hall's IP Scholarship Seminar. Here's what I'm thinking of saying.
What’s motivating me to write in the communications area? The copyright concerns that scholars have been focused on for the last ten and more years are proxies for the central problem facing the internet: private control of our internet experiences. We’re moving from the conceit of owning information (the problem of IP, the problem taken on by Jamie Boyle in his 1996 Shamans, Software, and Spleens) to the conceit of owning the public internet itself – or, in other words, the conceit of owning flows of information.
The commodification of the internet may not happen, but there are plenty of people who want it to. We are moving into an era of a vision of romantic ownership which exalts property above all and seeks to reward the company that provided the fiber we use to reach the public internet. Telcos and cablecos would like to manipulate and distribute intentional, monetized internet experiences (connections we should by now be accustomed to making for ourselves) and are well along in creating a discourse of entitlement and justification.
So, in my mind, communications law has to become our central concern. Communications law may bear the same relationship to the networked society as IP law bore to the information society and (as Boyle points out), labor law bore to the industrial age.
What follows draws heavily on the basic steps laid out by Boyle in 1996, and extends his work to the issue of network control.
I’m trying to create a normative map that will help reveal the assumptions at the heart of the network providers’ arguments. The key issue should be: is access to the internet a public goods problem, for which incentives are necessary to ensure buildout and maintenance? or — Is access to the internet a monopoly problem, for which you have to find ways to ensure frictionless competition?
Right now, we can’t tell what the right answer is. I am trying to reveal what is actually happening as a rhetorical matter. It’s clear to me that this key tension between monopoly and public goods is being hidden. All that comes out in the public discourse is about the need to incent the heroic builder of the networks – the people rolling out fiber. This is a powerful image, and governments (including our government) are going along. The distributional, environmental, and innovation-related effects of this trend will be profound.
There’s of course very little empirical evidence either way on the monopoly/public goods issue. It’s also not clear to me which way the public imagination is going. Do most people feel that Comcast should/does get the right naturally to constrain their online experience? Or is what they want access to the public internet, which is owned by no one?
It does seem to me as if the public internet, the space just beyond whatever default home screen you’ve neglected to change, is a public sphere. It seems like sphere-crossing to commodify it entirely – to make it into a private sphere. There are certainly areas that are commodified, but there is plenty of competition that seems to be interesting people more.
Indeed, there’s something special about a public communications network, a traditionally public network, that is different from a cable system. This isn’t, perhaps, a rational view. But this nonrational association between information networks and the public sphere – a place of debate and discussion and entrepreneurial creation – makes it easier to talk about access that is structured by equality and fairness. Our intuitive sense about all this matters and shouldn’t be discounted.
I haven’t really worked out yet what’s public and what’s private about use of the internet. It’s not clear whether commodification of the internet can be viewed as an unjust impediment to a better online future OR as essential to the future existence of the network at all. We have different ways of reifying the internet, of understanding it as a picture. Is it an intrusive, dangerous presence? Is it the lifeblood of debate? Must it be commodified? Is it impossible to commodify?
The network providers are getting very skilled at conflating access and interaction. A DSL lobbyist takes two logical steps: first, conflate these public and private realms, and then bring in the romantic, heroic builder, rolling fiber across the land. That seems to do the intellectual trick, and successfully ignores the notion of user-created content in an almost invisible, incremental way. (“For service purposes, we can’t allow you to use X port or Y application. We’re sure you’ll understand. You can use OUR application if you pay us for our premium services.”) We’re at risk of being in thrall to an idea of romantic network ownership that should be questioned as dogma.
For the users, these two things are wholly separate. Access can be private – that’s fine – but interaction is public.
A parallel with the IP issues that Boyle was focused on in 1996 is that developed nations are always saying how much better everything will be for developing countries if they adopt maximalist IP standards. Companies will invest, so the reasoning goes, and the developing nation will be brought into the magic circle of riches and respect. Same argument here: the internet will be a backwater until it’s secure and commodified. But, in fact, it may be that securing and commodifying the internet will mostly result in stifling innovation and missing out on enormous economic growth.
Indeed, the IP analogy can continue: the sources of user-created content, like the sources of indigenous cultural content, won’t be rewarded by the commodifying network providers. In the meantime, all the riches will be taken out, and we’ll have no one to protect the network itself.
At any rate, it would be too bad if we decided to regulate the most important technologies of this century by relying on their formal similarities to the technologies of the last century – like telephones. What’s better for society? Wouldn’t it be better to think about that directly rather than merely bringing regulation through this filter of analogy? The internet lets us reexamine fundamental legal principles, and it’s time to do this here.
I’ve been working on three puzzles: E911, CALEA, and Universal Service. All are steps towards controlling the public internet. All are part of a much larger move, already well under way, to deregulate broadband access and remove any obligation not to discriminate against applications and devices. That larger move is in turn part of a global move on the part of broadband providers to turn their networks into something much more like the what mobile phone carriers have – completely monetized services, allowing for packet inspection, and making it possible to block services they don’t want to have competing with them.
So that's why I'm paying attention to communications law these days.