I haven’t written much about Net Neutrality.  A few years ago I did say this:

Concurring Opinions writes in favor of Net Neutrality — a key issue, and one that affects the ability of everyone in the world to get his thoughts on the Internet, as well as for everyone else to read them. But, of course, someone has to pay for everything. Some of the ones paying are inclined not to provide quite so much free-riding on the system as is available to you and me right now. As Frank Pasquale notes, considering Lawrence Tribe’s recent pronouncements on the subject:

Many First Amendment absolutists [such as Tribe] would like to see it eviscerate the public’s rights to privacy and cultural self-determination.

Now, I get the point: Tribe says if the First Amendment says that, say, a parade organizer has the right to decide who marches in his parade, why doesn’t a broadband owner have a right to govern which electrons march in his? The analogy is pretty lame; if a parade is indeed protected speech, a copper wire certainly isn’t.  In other words it is not like a parade marcher, whose presence in the parade is a message.  A copper wire, by contrast, has no message of its own; it is only a medium.

That sentence was troubling. I wrote in the comments:

Notwithstanding the characterization (“eviscerate”), this sentence names three competing “rights”: Free speech, privacy and cultural self-determination. For 20 points, how many of those rights are in the Constitution?

I count one. Now, I love Net Neutrality. And I am not an expert on the competing constitutional interests at stake — which, let’s face it, are already far-fetched analogies to anything the framers of the Constitution could ever have contemplated regarding free speech.

But we’ll have to do a lot better preserving it than positing either a right to privacy, itself only the product of those famous emanations, or “cultural self-determination,” as worthy of offsetting what may or may not be legitimate First Amendment rights.

I got one comment, from “Hands Off,” which for the sake of one-click shopping I’ll also reprint here:

I’m not sure I agree with your take on this matter.  Although to be fair, I also work for Hands Off the Internet, so that certainly informs my opinion.

But let’s assume even that I do concede there is a chance ISPs will block content, I still argue that explicit net neutrality regulations are unnecessary. Antitrust laws already exist to penalize ISPs if they engage in anti-competitive behavior, which includes blocking certain sites.

But I do say this with every confidence that a) ISPs would be stupid to block bits, and b) they don’t want to anyway. After all, the very few isolated cases of blocking before were settled without these kinds of laws!

But I do also think Tribe has a point. The Dorgan-Snowe bill for example would certainly limit ISPs ability to monetize their pipes. And that is a restriction on their property. Only if they abuse it should something be done. So far, there isn’t the need.

Evidently Congress agreed.  Dorgan-Snow died a fairly quiet death.  On the other hand, “rely on the Sherman Act” is not a particularly compelling argument, by my lights.  Private antitrust litigation is expensive and protracted.  It requires a high degree of lawyer ability as well as the engagement of high-priced economics talent.  Even then, you need a judge — and often more than one — to agree with you on something pretty esoteric.  And by the time you get a result, the damage is likely done.

If you accept the premise that there out to be regulation of things such as monopolies, natural or otherwise, there are much better ways to do it than through the courts.  Is the FCC the better way?  It may be as good an agency as any, and perhaps better because of its expertise, but it’s never been clear what jurisdiction the agency has over Internet connectivity.  My senior thesis in college, unlike the senior theses of certain of my classmates, will never be of general interest — I hope.  It was abysmal work.

But it did take off, if at all, on Ronald Coase’s original work on the economics of spectrum allocation under the Federal Communications Act.  And all I’m saying is there was nothing in that legislation about any intertubes or nothing.  Evidently the courts agree that that hasn’t changed since I wrote that atrocious work 1985.  Congress will probably have to act to change that, or unless the Federal Trade Commission ends up asserting itself.  On the other hand, the FCC does have jurisdiction over a lot of those wires in the ground — you used to need them for phones — and over that part of the “ether” utilized for Internet connectivity.  And, it says, there’s other stuff, too.  Clearly — well, perhaps I mean, “surely” — the FCC will still be heard.

Meanwhile, how about private agreements, such as the much-talked-about deal between Verizon and Google?  Those could, in theory, raise different antitrust issues — though not necessarily excluding monopolization — if seen as collusive.  At least one commentator has suggested that this particularly deal is probably more for show than anything else, and may end up technologically irrelevant anyway.  I have yet to see a clear explanation for why this big-deal double-entente is actually going to have an effect in terms of intertube connectings or anything, as opposed to being at worst a public relations pose and at best a strategic, uh, something.

I don’t know.  I can’t even tell what the “free market” — which I intuitively trust, being a bit of a student of planned economics — would look like here.  Despite the anarchic nature of the state of the Internet, the allocation of connectivity resources does not begin in anything resembling a state of nature.  That’s how it’s been since Al Gore invented the whole thing.

In other words, I don’t really understand this too well, and I’m a guy who not only went to university for seven years — I even studied some of these parts.

But I know is this:  The further we can keep all of this bit of the good thing that is the Internet from government, the Thing That Wouldn’t Leave in every single aspect of life it drops in on, the more hope that this will maybe just not also get ruined.  Is that too much to ask?

By Ron Coleman

I write this blog.

6 thoughts on “Net Neutrality: Only one thing could be worse.”
  1. Maybe you wrote this in a rush, but not everything was clearly written in this article. You have a few typos here and there that muddle your meaning a bit, I think.

  2. Joseph:

    Errare humanum est, stultum est in errore perseverare.

    The point is not THE meanings being muddled, but the ability of a reader to interpret the concept of the post (not to mention their delicate manners). Maybe.

  3. I think the analogy is a good one! I own a private wire that passes through my home. Who are you to tell me that I have to give half of it to Verizon and the other half to Cablevision?

    Now if I’m Verizon or Cablevision… they’re private entities just like me (sort of). Why do they have to give equal time to me and equal to my neighbor? It’s their wire!

    I think it’s an apt analogy. Here’s why they have to give equal time and I don’t: common carrier. Just as a bus needs to pick up everyone and give them the same seat, regardless of race or religion, an internet provider is like a bus driver. They have to provide the same for everyone.

    One might even regulate an ISP like a utility. For that matter, I have more choice in supplier of my electricity than I do my high speed internet. That’s why they need to give equal access or “net neutrality”. If the market were wide open with hundreds of providers to choose from, then I’d say let the market work out net neutrality on it’s own.

  4. Absolutely agree! Furthermore, the topic is more complex — the post provides a fine outline on the situation within a politically, economically democratic society. For a broader perspective, take an ISP in a 4-letter country eastward Israel: THE regime_has_the Net. Not Matrix. On a global level, the array of the stake institutions: governments of all sorts to private investors to end users.
    Excellent post, many thanks to the Author for sharing!

  5. Point of order: out of “Free speech, privacy and cultural self-determination”, I believe all three to be in the constitution.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    That’s still the law of the land, isn’t it? Just because it isn’t enumerated (like privacy) doesn’t mean that it isn’t a right.

  6. Phelps – “privacy” and “cultural self-determination” are not in the original Constitution or Bill of Rights. Justice Douglas et al found them emanating in the penumbras.

    You are correct in asserting the 9th Amendment in support of the proposition that the failure to include a right in the Constitution, as amended, does not mean that we the people do not have such a right. But you go too far in asserting that any such right is therefore protected by the federal Constitution. Reading these rights into the US Constitution flies in the face of the 9th Amendment which you cite, and the 10th Amendment which specifies where the rights ultimately lie – in the people and the states (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) What “rights” will others using your same reasoning argue should be found emanating in the penumbras of the US Constitution? Polygamy? Net neutrality?

    Our founding fathers apparently believed our states/people were the appropriate venue/authority to address those matters not expressly set forth in the US Constitution. (see, e.g., 10th Amendment). We should be seeking unity, not uniformity, among the states. Net neutrality would seem to be another one of the issues that should be decided in the laboratory of the states, rather than by a heavy handed federal government demanding uniformity across the nation on this issue.

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