More Nuanced Net Neutrality Discussions

Lynne Kiesling

I am happy to have seen more nuanced net neutrality discussions this fall than in the past. In November this Eric Raymond post caught my eye because it dealt with the problems a libertarian faces in net neutrality policy:

Mistake #1 for libertarians to avoid is falling for the telcos’ “we’re pro-free market” bullshit. They’re anything but; what they really want is a politically sheltered monopoly in which they have captured the regulators and created business conditions that fetter everyone but them.

OK, so if the telcos are such villainous scum, the pro-network-neutrality activists must be the heroes of this story, right?

Unfortunately, no.

Your typical network-neutrality activist is a good-government left-liberal who is instinctively hostile to market-based approaches. These people think, rather, that if they can somehow come up with the right regulatory formula, they can jawbone the government into making the telcos play nice. They’re ideologically incapable of questioning the assumption that bandwidth is a scarce “public good” that has to be regulated. They don’t get it that complicated regulations favor the incumbent who can afford to darken the sky with lawyers, and they really don’t get it about outright regulatory capture, a game at which the telcos are past masters.

Yes, precisely. This is the dinner-table argument that the KP Spouse and I have been having for years. Eric’s suggestions:

So, what are libertarians to do?

We can start by remembering a simple truth: The only substantive threat to the telco monopoly is bandwidth that has been removed from the reach of both the telcos and their political catspaws in the regulatorium. Keep your eye on that ball; the telcos know it’s the important one and will try to distract you from it, while the “network neutrality” crowd doesn’t know it and wastes most of its energy self-defeatingly wrestling with the telcos over how to re-slice the existing pie.

Go active whenever there’s a political debate about “unlicensed spectrum”. More of it is good.

Here is an area where I think we still need more nuance. He argues that allowing any device to use spectrum when it does not create destructive interference is a way to reduce the market power of the telcos, which is likely the case. But there are lots of unresolved common-pool resource issues in the use of unlicensed spectrum. I’d like to see more discussion of how to govern those commons privately without having cumbersome and politicized government licensing schemes.

Another good commentary along the same lines came from Julian Sanchez at Ars Technica. In commenting on a new Cato study on net neutrality from Tim Lee, he observes

The debate over net neutrality typically pits proponents of an open Internet defined by an end-to-end architecture against defenders of more selective, less egalitarian routing by service providers. But in “The Durable Internet,” a paper released Wednesday by the libertarian Cato Institute, Tim Lee argues that the “openists” and the “deregulationists” both rely on the same mistaken assumption: that the Internet’s neutral structure won’t survive without government intervention. …

Lee argues that dispersed users tend to spontaneously organize to detect, circumvent, or protest any attempt to censor or degrade service to certain sites. As he points out, even the Defense Department was unable to effectively crack down on uses of ARPANET it considered frivolous. Contemporary broadband providers, whose direct control is always limited to a tiny fraction of the network’s pipes, are unlikely to fare much better. And indeed, had Comcast not backed off its plan to throttle BitTorrent traffic, Lee argues that the cable company would simply have hastened the adoption of header encryption by users.

Julian’s Ars Technica article also points at some other authors who have commented on Lee’s paper, and if you are interested in net neutrality I encourage you to follow those links. What I find interesting and useful about this turn in the discussion is that it brings regulation and durability/resiliency into direct contact — one reason why the Internet has been so valuable is its plasticity, and some of the net neutrality regulation proposals could inadvertently reduce that plasticity.

In both of these strands of discussion I see movement beyond the binary argument that had been the norm in net neutrality discussions over the past several years. This is a good thing, and I hope it leads to beneficial policy discussions and decisions.

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