Unbridled discretion and prior restraint: the Verizon and Comcast stories
Let’s say that providing communications infrastructure is an inherent function of a state. Most people think of the internet as a telephone system, and most people think the telephone companies aren’t supposed to choose which calls will go through based on their content. People think that because they think internet access, like telephone access, is a utility — like electricity conduit, water pipes, etc. — that has something to do with the government, and the government isn’t supposed to discriminate.
If it’s true that there’s something about communications infrastructure that is government-like, or government-related, then the companies involved in providing that infrastructure may have obligations to the public not to interfere with the speech of those using their facilities. This makes sense in the current market context, which isn’t very competitive.
(These obligations wouldn’t extend to the applications used by people online. If the infrastructure is the water pipe, then online applications are the soup made out of the water. Or something like that.)
These obligations include, under U.S. law, a respect for free speech.
Even if the network providers don’t have a legal obligation to respect free speech under current law (because they’re not “state actors,” a term that has a thicket of caselaw surrounding it), the role they play in society carries with it an obligation to respect this legal regime.
And yet. The network providers want to have complete control over what speech goes through and what doesn’t (BitTorrent v. streaming video from their partners). They want some speech to arrive more efficiently than other speech (tiering v. the “best efforts” network that is the internet). They want to have, in effect, power over a licensing regime. But that licensing regime carries with it the power to offer no choices at all. It has no objective limitations.
If a state government did this, we’d be horrified. We’d say that allowing the government to pick and choose which speech goes through allows that government to engage in viewpoint discrimination. We’d say that the government was engaging in prior restraints on speech. We’d say this is unconstitutional censorship.
We’re usually deeply skeptical of licensing schemes that grant unbridled discretion to government officials. Why be unsuspicious of the filtering actions of these state-like network providers?
The petitions filed in connection with the Comcast spoofing are asking, in essence, for narrow, objective, and definite standards to guide the licensing authority of the network providers. If they have to have “network management” control, then let’s say what constitutes legitimate network management.
Otherwise we’ve just set up a system of uncontrolled discretion in the hands of a few large companies that grant us access to the internet.
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I am not a big fan of knee jerk government intervention, so I wonder if there isn’t a middle ground, between enacting net neutrality, as difficult as that is, and doing nothing, as distasteful as that is.
What I have in mind is legislating transparency. There’s plenty of precedent for this in the history of monopolies and near monopoly industries. For example, in terms of laws that set railroad transport pricing. Or in consumer protection laws, setting standards in how interest would be computed on consumer loans in the rent to own industry. So a simply rule on pricing transparency for ISP’s would go a long way in getting information out there. As von Hayek noted, the market really is largely about information flows, and more and better information means better operation of authentic market forces. That is what I propose.
Simple stated, ISP’s should charge either a flat fee for access, or a metered fee. And they must disclose all protocols used and those that they interfere with. It really seems a lot simpler than legislating net neutrality. It seems that law alone would have prevented Comcast from trying to do what they were doing–because they lied about it so much. A really simple observation–if someone lies about something, they probably realize they are doing something they shouldn’t be doing.
So, first let’s try to legislate open pricing, clearly defining what services (protocols) are and are not interfered with.
IF that does not work, then we can talk about legislating net neutrality.
However, a couple of possibilities I am waiting for: some entity like Comcast using the anti-circumvention provisions of the DMCA to go after those who do forensics on their network.
Also possible: Comcast canceling service to those who were involved in diagnosing their strange handling of Bit torrent traffic. Either of those should be a big red flag that Comcast has decided to fight this one out, rather than change their repressive policies.
Excellent parallel of public utilities and Internet access. Now to get others to see Internet access in this light.