The self-owned internet
There are a couple of reasons why we have national parks and access to the seashore. Some things are so much the gifts of nature that they should be reserved for everyone. And some things (like the sea, and like the internet) are so important to each of us that keeping them freely available makes us a group of citizens rather than slaves.
In an 1824 case, someone claimed that he privately owned oyster fisheries under some navigable waters in New Jersey, and that the ownership of these things had come down to him through a royal grant made before the Revolution.
Chief Justice Taney (who hung on for an awfully long time and later decided the Dred Scott case) disagreed. Listen to this: “When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government.”
Taney was saying that the people were sovereign, and that they had given this common ownership of the oyster beds over to their government to run for them, as a kind of public trust.
Now — the internet wasn't created by nature; it's an agreement between machines made possible by the designers of that agreement (or protocol). But it is a great gift, and it is very important to being a citizen, and for these reasons it is owned by all for common use. It's a commons, like the Boston Common. And no sovereign ever showed up to which the people who “own” the internet (that is, everyone) surrendered their ownership.
But sovereigns (governments) still have a duty, and it's a very old one. It's in Roman law, and Greek law, and early English law — it's the duty to protect access to the seashore, which is the place where people can access the sea. A very important common resource.
Here's an English legal scholar writing a long time ago:
By natural law these are common to all: running water, air, the sea, and the shores of the sea, as though accessories of the sea. No one therefore is forbidden access to the seashore, provided he keeps away from houses and buildings [built there.]
It's fine to build a house on the seashore, or a wharf jutting into a lake, as long as you don't keep people from navigating that ocean or lake. And, by the way, you can certainly have a privately owned thing on/in the sea, like a ship or a self-owned whale. But access to the sea has to be available. States cannot sell that off or otherwise dedicate it to private uses. And no matter how elaborately funded and decorated a beachfront property is, it can't stop people from walking on the beach below high tide.
So — it's fine to build special services and make them available online. But broadband access companies that cover the waterfront (literally — are interfering with our navigation online) should be confronted with the power of the state to protect entry into this self-owned commons, the internet. And the state may not abdicate its duty to take on this battle.
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4 Responses to “The self-owned internet”
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I think National Parks might be a more accurate analogy to the Internet than the seashore. They too were created for the common good and common access of our citizenry and visitors.
That seems different to me from “running water, air, the sea, and the shores of the sea,” all of which predate any legal system or recognition of property rights.
The other interesting parallel between the Internet and the National Parks is how they were created and supported, especially early in their existence.
Something like 1/3 of the acreage of the National Park & Recreation Area system was driven almost entirely by Rep. Phil Burton and his staff, with most of the rest of Congress having very little understanding of what they were voting on at the time. (Sound like Internet policy creation to you?)
This doesn't invalidate your point, but speaks to a possible strategy for achieving it. We need a powerful champion — or several — who really do get the importance of open and unrestricted access to the ever-evolving capabilities of the Internet.
And I can't recommend John Jacob's biography of Burton, A Rage for Justice, highly enough. What an amazing inside baseball player on the political scene.
Susan,
Of course, I agree. But I also follow Crawford's 5th law (you pick the number): If you invite government in to help you with one problem, you risk government messing you up on another. So how do we have government protect the seashore in this case? On the one hand, I want competition and thus deregulation: Let many parties, including local governments, compete to provide me with open bandwidth. On the other hand, we want assurances of noninterference in our right to swim from the landowners. So how do we do it in this case?
Jeff — I've been saying that competition is the answer myself, for a while now. But the depressing sight of the cable guys and the telcos smugly dividing up the world between themselves has been bothering me recently. So I am trying to work up a principled way to invite protection in without a lot of baggage. Just exploring here - you're right, it's a hard problem. Susan
After working in the Internet Access world both on hardware and services for the last 13 years, I have concluded that the physical plant for the last/first mile is a natural monopoly.
Now, I'm referring to just the physical plant, layer 1; Conduit, utility poles, dark fiber, rights-of-way, physical interconnects that go from homes and businesses to municipal meet points/peering centers.
This physical plant has almost no electronics and nothing that gets obsolete faster than 10 - 30 years and mainly need “men in trucks” to install and maintain it.
This layer 1 infrastructure is a perfect match for municipalities that already have similar ownership, management and maintenence for roads, water and sewers. And if not municipalities, then horizontally divested regulated monopolies broken off from the RBOCs and Cable Companies.
The layer 1 infrastructure would be made available to all commercial and community entities in an open access way based on costs ammortized over the 10 - 30 year period. These third parties could offer services on top of the fiber (from lighting it to delivering content) to the citizens and businesses of the municipality on a competitive basis.
We should consider as a basic tenent that control of Content must be seperate from the control of transport. Anything else leads to stagnation of innovations, thought and governence.