I’m accustomed to finding myself on the same page as the American Civil Liberties Union–and in particular with the razor sharp Jay Stanley, who heads their Technology & Liberty program. But their recent report urging the necessity of net neutrality regulation only makes me more skeptical. I’ve always pretty much shared the position of my colleague Tim Lee: The open, end-to-end nature of the Internet is an important driver of both innovation and free expression–important enough that if it were systematically threatened, there would be a decent case for regulatory intervention. But that end-to-end architecture is also pretty resilient, even if some ISPs might wish otherwise. And while it’s easy to think of deviations from neutrality that would be pernicious, it’s also not hard to imagine specific non-neutral practices that might benefit consumers without undermining that broader end-to-end structure. The real policy question ought to be how to get enough competition in broadband markets that consumer choice selects for the latter against the former. Since broadband isn’t all that competitive in many regions, the question is whether we can afford to wait and deal with problems as they arise in a narrowly tailored way, or whether there’s some urgent need for a broad architectural mandate.

The ACLU says there is, and cites ten terrifying “abuses” that supposedly show the need to legislate now. But as I read over the list, I found I couldn’t help but think of those old Saturday Night Life “Coffee Talk” sketches, where a farklempt Mike Meyers would throw out such food for thought as: “Grape Nuts contain neither grapes nor nuts, discuss.” Because ACLU’s list of abuses mostly consists of examples that either aren’t actually net neutrality violations, or for which there are obvious remedies that don’t require neutrality regulation. Let’s discuss:

• AT&T’s “jamming” of a Pearl Jam concert, in which singer Eddie Vedder’s remarks attacking then-president George Bush were bleeped out of a webcast. Obviously, it would be pretty troubling if your ISP were filtering your datastream to remove political content of which it disapproved. But that’s not what happened here at all. AT&T, via a deal with the Lollapalooza music festival, was streaming the Pearl Jam concert on its own content hub. Now, obviously, whoever was editing the stream and decided to treat criticism of Bush as equivalent to profanity made a highly dubious judgment call, but the point is that AT&T was acting as a content provider here, not a carrier: The filtering happened before the content hit the network, and no proposed neutrality rules I’m aware of would have prohibited this.
• BellSouth’s “censorship” of Myspace. According to BellSouth’s own account, a glitch in their system temporarily left their outraged users unable to access the popular social networking site. “Some suspected” that the company was actually testing some kind of tiered access system, and decided to do so by blocking a popular site without notice, antagonizing their paying customers. Some also suspect the moon landing was faked, but I wouldn’t make it the basis of legislation.
• Verizon briefly denied the abortion-rights group NARAL access to a program whereby users who texted a dedicated “short code” could sign up for SMS updates; the company almost immediately reversed its decision. This is, obviously, not a case involving Internet neutrality, and while it’s certainly a case involving the ability of a network owner to discriminate between users of its network services, the issues involved are pretty different. These “short code” services often permit users to either sign up for fee-based updates or donate money to causes via charge added directly to their monthly phone bill. As indicated by their prompt reversal, the rationale for denying NARAL here–desire to avoid partnering with causes on either side of a “controversial” issue–was probably ill considered, but this is clearly a case where the company is partnering with the provider in a way that goes beyond carriage, because they’re also effectively acting as a payment processor. That means they’ll have an interest in vetting partners in a way you wouldn’t expect a mere carrier to vet every content provider on the network. Even if you think this particular type of discrimination ought to be prohibited, this is really a distinct case raising issues separate from those involved in the Internet Neutrality debate, and ought to be considered separately.
• Proposed filtering for copyright infringement. This is indeed a terrible and, in practice, unimplementable idea–for one because there’s no easy way to distinguish illegal from legal copying (as when I stream music I’ve purchased from my desktop or server to a mobile device). There’s also a pretty good case that this would already be illegal under federal wiretap laws…which may be why the “proposals,” referenced in an article from January 2008, haven’t actually gotten anywhere.

There are a handful of other cases that either may or definitely do count as potentially troubling neutrality violations–the most famous being Comcast’s throttling of BitTorrent traffic. At least two involve ISPs in Canada, which I wouldn’t have thought is the FCC’s problem. In some of these cases, I’d even agree that regulatory action is justified–but by the FTC, not the FCC. If you are advertising access to “the Internet,” then choking off access to whole classes of popular services or degrading throughput well below advertised speeds, well, that’s what we call a deceptive business practice. (In a more libertarian world, this might be handled by another mechanism; in the world we’ve got, it’s the FTC’s lookout.) Maybe there’s a case to be made for more specific transparency rules to establish when and how consumers have to be informed about non-neutral routing policies–certainly no ISP should be allowed to block access to a website and conceal the policy by making it look like a technical glitch–but I have no idea why you’d make the leap to a sweeping architectural mandate before trying something along those lines.

More generally, I’m a little puzzled about why the ACLU is weighing in on this at all. It’s true that ISP routing practices, like the practices of many private firms, could have implications for “free expression” broadly conceived. But not everything that might promote or hinder expression is part of the civil liberties portfolio, which has traditionally been limited to restraints on freedom imposed by government. To the extent federal policies inhibit broadband competition, one might say the government is in some sense complicit in whatever private policies restrict expression, but here again, the obvious remedy is to look for more pro-competitive policies. In any event, this is far enough outside their usual wheelhouse that you’d think it would make more sense for them to remain, well… neutral on this one.

The Phantom Menaces in the ACLU’s Case for Net Neutrality is a post from Cato @ Liberty - Cato Institute Blog

A Pew Internet and American Life poll out this week finds: “By a 53%-41% margin, Americans say they do not believe that the spread of affordable broadband should be a major government priority.” Non-Internet users are less likely than Internet users to say the government should prioritize spreading access to high-speed connections.

The federal government spent $7.2 billion in “stimulus” money on the premise that the federal government is supposed to do this kind of thing. And the Federal Communications Commission’s “National Broadband Plan” is premised on the idea that there is supposed to be a national broadband plan. It isn’t, and there’s not.

Much as I love using the Internet for work, entertainment, and social connection, I recognize that people can live perfectly happy lives without it. The invention and growth of the Internet should always be seen as having opened new avenues for people, not as having created a national communications medium in which participation is required to live a full life. Social engineers, stand down: people will use the Internet if they want it, and they won’t if they don’t.

Government Promotion of Broadband? No, Thanks. is a post from Cato @ Liberty - Cato Institute Blog

Yesterday the D.C. Circuit ruled that Congress hadn’t given the Federal Communications Commission power to regulate the Internet and the FCC couldn’t bootstrap that power from other authority. It was a rare but welcome affirmation that the rule of law might actually pertain in the regulatory area.

But the Open Internet Coalition put out a release containing threat exaggeration to make Dick Cheney blush:

“Today’s DC Circuit decision . . . creates a dangerous situation, one where the health and openness of broadband Internet is being held hostage by the behavior of the major telco and cable providers.”

That’s right. It’s a hostage-taking when consumers and businesses—and not government—hammer out the terms and conditions of Internet access. Inferentially, the organization representing Google, Facebook, eBay, and Twitter believes that Internet users are too stupid and supine to choose the Internet service they want.

What these content companies are really after, of course, is government support in their tug-of-war with the companies that transport Internet content. It’s hard to know which produces the value of the Internet and which should gain the lion’s share of the rewards. Let the market—not lobbying—decide what reward content and transport deserve for their roles in the Internet ecosystem.

As I said of the Open Internet Coalition’s membership on a saltier, but still relentlessly charming, day: “[T]hese companies are losing their way. The leadership of these companies should fire their government relations staffs, disband their contrived advocacy organization, and get back to innovating and competing.”

Consumers in the Driver’s Seat—Oh, the Humanity! is a post from Cato @ Liberty - Cato Institute Blog

I’ve seen plenty of stories and gotten a fair number of calls from reporters about the national broadband plan. They generally want to get some insight from down in the weeds of the communications world. What do you think of this part? What do you think of that?

But I’m keeping my eye on the ball: This is another industrial-policy boondoggle. It’s a government spending program, created by the so-called “Recovery Act,” that will distort the communications marketplace, and it comes at the cost to taxpayers of having their resources taken from them and handed out to the firms that are best equipped to lobby for government succor.

I don’t care which community gets 1-gigabit connections. The money to pay for it should have been left with the American people to spend as they choose—on 1-gigabit connections if they choose. The debt overhang produced by all this spending makes us worse off, not better off, and the shiny bauble of hi-def, two-way video doesn’t change that.

The Federal Communications Commission should be shuttered. That’s the gist of what I have to say about the “National Broadband Plan.”

The National Broadband Plan Is Bad. Period. is a post from Cato @ Liberty - Cato Institute Blog

Nate Anderson at Ars Technica has a good write-up of the New America Foundation’s interesting proposal for labeling of broadband services, something akin to the nutrition labels we have for food.

Labeling and disclosure are better than direct regulation of the terms on which goods and services can be sold, of course. Labeling does not presume to decide unalterably what factors are or will be the most salient to consumers. But it does seek to channel those interests, and it does presume that consumers discover information that is important to them via labels. (I dealt with some of these concepts in my recent post about privacy notices.)

What labeling is really about, I believe, is pushing consumers to focus on the terms that intellectuals believe are most interesting. Smart people’s interests often match up with everyone else’s, but not always. Anderson’s write-up wonders aloud “whether requiring disclosure of the ‘maximum round-trip latency to border router’ will do more than induce eye glaze among most broadband users.”

I want my ISP to give me a live tech-support person that can solve the problem with my wifi router, but that didn’t make it into New America’s labeling plan. Any labeling plan will likely be either overinclusive or underinclusive or both, obscuring and omitting the most relevant information.

Yes, labeling is “market-friendlier” than regulation dictating what broadband providers can and can’t offer. But if we believe that markets discover the dimensions of goods and services that are salient to consumers, we can also believe that markets discover what information consumers want, and how they best learn it.

Many years ago, I spoke to a panel of regulators about a financial privacy “short notice” project that — heck — may still be going on. I passed around a small package from which I had eaten baby carrots the previous day. Along with a nutrition label, it had a picture of a cornucopia spilling forth vegetables and fruits, with the legend “Five a Day!” This, I suggested, communicates more salient information to consumers than nutrition labels: eat more fruits and vegetables. “But I use nutrition labels,” countered a well-meaning regulator, extrapolating from her own experience to that of all Americans.

Commerce is alive with trade names, trademarks, symbols, messages, notices, and signals about the content, quality, and desirability of goods and services. Consumers get much more relevant, actionable information this way, I think, than through mandated labels.

They do not intellectualize about these things, but that’s fine. Time is scarce, and it’s not worth it for people to intellectualize about the details of most purchases. Those who do, and those who talk about it, press the market toward what is good for all. The average consumer can gather just enough information to be relatively confident of being satisfied overall with any purchase. On the whole, consumers and markets will gravitate toward products and services that make all better off.

There may be consumer demand for organized, industry-wide labeling in some areas, of course. It’s a fine thing if there is. 

Anderson takes NAF’s plan to be a call for a government mandate, but the write-up itself is vague, saying that broadband providers “should” do various things and observing the absence of a legal requirement for notice. It takes pains to use the passive voice when ordinary speech would identify what actor should establish a labeling regime. 

If only there were a label about that salient feature of the proposal!

Consumer Protection for Intellectuals is a post from Cato @ Liberty - Cato Institute Blog