Balkinization: The Future of Free Expression, Part II-- Network Neutrality

The Future of Free Expression, Part II-- Network Neutrality

In the first post in this series, I argued that the most important decisions affecting the future of freedom of speech in the digital age may not occur in judge-made constitutional law; many of them will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. In the twenty-first century, the values of freedom of expression will become subsumed in an even larger set of concerns that I call knowledge and information policy.

My first example is the current debate over network neutrality. On August 1st the FCC held that Comcast illegally (and secretly) blocked the use of a file sharing service called BitTorrent, which is used to move large files across the Internet. The FCC held that broadband providers can't employ secret techniques to block traffic that have no demonstrated connection to reasonable network management policies like reducing network congestion. The FCC pointed out that Comcast was blocking BitTorrent regardless of the amount of traffic. (A more detailed ruling is expected shortly.)

This decision is quite important. In fact, it is as important as the Supreme Court's Reno decision in 1997, because it begins a serious legal movement toward network neutrality. And what is particularly noteworthy is that this decision comes not from a court construing the Constitution but from a federal administrative agency regulating the technical aspects of broadband services.

The goal of network neutrality is to keep digital networks open for many different kinds of content and for many different types of applications and services that people may devise in the future. Put another way, the goal of network neutrality is to ensure that the Internet, as much as possible, remains a general purpose data transport system through which many different kinds of content, services, and applications can flow.

What does the debate about network neutrality have to do with the First Amendment? Under current doctrine, the First Amendment doesn’t really say much about network neutrality one way or the other. And yet whether network providers can discriminate against content, sites and applications touches on important free speech values. Vast numbers of Americans now communicate with each other through broadband access; and we can expect that the percentage of communication through these digital networks will only increase over time. Network providers offer an indispensable service to the general public that makes much public (and private) communication possible. If network providers could discriminate against content and services flowing through their networks, they would be the most powerful censors in America. And since we live in what is effectively a cable-phone duopoly for broadband services, market competition would not necessarily counteract this censorship.

But the debate over network neutrality is about more than whether network providers can discriminate against certain types of content or services. In most cases large corporations won’t discriminate against communications because of their politics or their moral tone (although there have been a few well publicized exceptions, like Verizon's recent attempt to block short text messaging services from NARAL). Rather, most network discrimination will be for economic reasons—to favor business partners and protect incumbent business models.

Thus, the debate over network neutrality is really about the best way to spur competition and promote innovation. Defenders of network neutrality rules argue that digital networks will generate more useful applications in the future—and thus help people generate and distribute more information—if digital networks remain as neutral as possible between different kinds of content and applications.

If you want to promote the growth of new kinds of information services, including services we haven’t even imagined yet, it’s important to keep networks non-discriminatory rather than built to favor the current businesses that network providers are aligned with. While it’s true that network providers can be important sources of innovation, they may frown on new kind of products and services that they didn’t invent, that they don’t provide and that might threaten their existing ways of doing business. For example, AT&T was uninterested in developing Internet technologies decades ago because it would threaten their control of the phone system.

A non-discriminatory Internet decentralizes the sources of innovation, because everyone can create their own services and applications. People who are not affiliated with broadband companies can come up with the next eBay, Google, Blogger, YouTube, Flickr, or Facebook. None of these applications, as far as I am aware, originated with a broadband company.

This is all very well and good, you might say, but what does it have to do with the First Amendment? Why should promoting innovation matter to people who care about freedom of speech?

A system of free speech depends not only on the mere absence of state censorship but also on an infrastructure of free expression. The infrastructure of free expression includes the kinds of media and institutions for knowledge creation and dissemination that are available at any point in time. It also concerns the kinds of opportunities that are available for people to create and build technologies and institutions that other people can use for communication and association.

Two contemporary examples are Internet telephony and filesharing services like BitTorrent. These new applications—which allow people to communicate and trade information and files cheaply— were possible because entrepreneurs could lay new applications on top of Internet protocols. People could create them because the structure of the Internet allowed this sort of experimentation without getting anyone else’s permission in advance. By choosing a regulatory scheme that lets the Internet function more or less as a general data transport system we open up possibilities for a wide variety of new applications and services that can let people share information and opinions, build things together, and form online communities.

Consider, for example, the wide variety of social software sites that have sprung up on the Internet in the past decade. These include Web 2.0 sites like Facebook or Flickr. Such sites perform several different functions simultaneously. They are hosting sites for multimedia content (Flickr hosts photographs, for example, and Facebook can host a variety of different media); but they are also online community platforms that allow people to communicate with each other and pursue common interests and activities through online media. Policies that facilitate this kind of innovation—and that allow many people, not just network providers, to engage in it— better serve the interests of freedom of speech in the long run, even though such innovation policies don’t, at least on their face, seem to be about government censorship.

To be sure, advocates of network neutrality have often made their case before the public by focusing specifically about the dangers of content censorship. That may be easier for people steeped in our first amendment traditions to understand. Yet the larger question in the debate over network neutrality is innovation policy; that question has enormous implications for media access and for future opportunities to speak, listen, share information, and associate with others.

Posted 1:11 PM by JB [link]

Comments:

This is like the old saw that the only people who have freedom of the press are those who own the presses. I don't see why it's so great that the FCC rather than a court is involved when we don't have protective substantive law. We have its BrandX decision, which is going to mean the end of the smaller ISPs. We don't have the protection of common carrier status, which would require the oligopoly carriers to build out plant rather than limit traffic. We certainly can expect the FCC to support the blocking of access to sites offering computer-animated porntoons. We can expect the FCC to control technology by specifying encryption techniques, verification-of-adulthood standards, mandatory intellectual property rights control, etc. And all of this would be reviewed under a deferential standard rather than an invidual rights framework. "Industry capture" is a well-known feature of regulatory agencies, and the FCC is caught.

# posted by

Anonymous : 3:35 PM

Jack,

I'm pro net-neutrality and all that stuff, but I think that Bittorent raises issue other net neutrality matter do not raise. Specifically, whilst bittorrent does indeed have some legitimate use, the primary use for bittorent is to share illegal music and movies. Furthermore, it is exponentially more difficult to find those sharing files via bittorent than it is on services such as Napster, which is why the only real way to fight piracy over bittorent is to try to shut down the service.

Bittorent also poses more stress on the ISP than a regular website, or even other service such as gaming because of the large amount of traffic involved. Both of these(especially the former) are reasons to block the service unrelated to net neutrality.

# posted by

Zvi : 4:07 PM

Prof. Balkin:

If you want to promote the growth of new kinds of information services, including services we haven’t even imagined yet, it’s important to keep networks non-discriminatory ...

I understand what you're saying, but:

If you want to promote "new kinds of information services", you should block some of the ones we already have (whichis what Comcast did, by selectively blocking traffic on certain ports).

When you block such ports, you will encourage the users to develop "new" techniques of doing the same thing functionally (say, by setting up encapsulated private protocols which hide the port usage) so as not to incut the wrath of Comcast netcops. Not to say that this is productive or in society's best interests; in fact, FWIW, any such protocols or "private VPNs" that hide traffic type and content may make the gummint snoops' ability to listen in more difficult. ;-)

Cheers,

# posted by

Arne Langsetmo : 6:11 PM

There are deep and important points made here, but I worry that the "innovation policy" focus will invite conservative economic theorists to further colonize this debate. For example, the DOJ appears to have assumed that one only needs economic analysis to assure "a thriving and dynamic Internet capable of meeting the demands of consumers for fast and reliable access to a rich variety of content and applications," as I discuss here:

http://www.concurringopinions.com/archives/2007/09/black_box_agenc.html

Kang's article Race.net neutrality brings the cultural concerns into high relief. I have also tried to show the partiality (in the sense of both incompleteness and bias) of think tanks' analysis of the topic here:
http://www.concurringopinions.com/archives/2006/10/net_neutrality.html

Finally, here is an interesting article by Brett Frischmann connecting tech, econ, & the First Amendment in a way that may alleviate some of the concerns I raised above: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1082497

"[E]conomics may help explain speech and the First Amendment in more than a metaphoric way. This essay, written for the Law in a Networked World conference hosted by the University of Chicago Legal Forum, explores how the First amendment may operate to sustain a spillover rich networked environment. The essay focuses on (i) the economics of speech externalities and (ii) the functional role of the First Amendment in constraining the government's ability to force or enable actors to internalize externalities associated with their speech."

# posted by

Frank Pasquale : 11:38 PM

You make two good points: (1) that an architecture that promotes innovation can also be an architecture that promotes free expression, and (2) network neutrality promotes innovation. Your argument for the latter point is largely empirical; rather than turning to economic theory, you give examples of past innovations. I made a similar argument a couple years ago from a 25-year perspective; at the time, it was Congress rather than the FCC that was in the spotlight, but otherwise the situation was similar.

# posted by

Max Hailperin : 8:45 AM

I think this line of thought blurs the distinction between free speech rules and rules regarding intellectual property. The original purpose of government control of copyrights and patents on behalf of the citizenry was to make sure that there was a limit to the ownership of ideas, and that they eventually ended up in the public domain. Where this now falls apart is in the massive extension of copyright to, in some cases, 150 years, and in the new tendency to make any idea whatsoever patentable. The laws governing intellectual property need to be returned to that original purpose to protect the free transmission of ideas from corporate ownership.

Corporations usually shy away from censorship of content for purely business reasons: The belief is that if you maintain a neutral pipe, you are not responsible (liable) for the content that flows in it, but as soon as you interfere on the basis of content, you become responsible for every idea that comes through your tubes. That is an expensive responsibility, since it requires a lot of equipment and people just to look at all that content.

Finally, just to mention two of your examples, the basic idea for services is often something that flows from service providers and communications companies, even when the final product does not. Google, for instance, is the latest (well, was) in a series of search engines, the first of which did arise in companies providing internet service (DEC, for instance). Flickr is, likewise, the latest interface innovation on an idea that arose in the camera companies and service providers, the original digital camera company is, in fact, a large internet service provider and communications giant, but not in this country (Sony).

A final barrier to free speech - in its form as stated here which is mixed with innovation - is money. Venture capital censors more ideas than anyone when it comes to innovation on the internet. The barriers to entry are very low, but only if you do not need to eat off your invention.

# posted by

ondelette : 9:15 AM

arne writes:
When you block such ports, you will encourage the users to develop "new" techniques of doing the same thing functionally (say, by setting up encapsulated private protocols which hide the port usage) so as not to incut the wrath of Comcast netcops.

I somehow think that JB meant to speak about innovation in a sense broader than playing dodgeball with port numbers (darknets notwithstanding). Blocking port numbers will just make people adept at switching port numbers - although that in itself spurs some really interesting developments. I also don't think the ends justify the means even if those ends are innovations. While darknets are pretty interesting, I think innovations like hyperlinks that automatically propagate changes are more interesting. It just seems like those kind of innovations grow better in a garden fertilized by something other than narrowminded policing.

ondelette wrote:
Finally, just to mention two of your examples, the basic idea for services is often something that flows from service providers and communications companies, even when the final product does not. Google, for instance, is the latest (well, was) in a series of search engines, the first of which did arise in companies providing internet service (DEC, for instance). Flickr is, likewise, the latest interface innovation on an idea that arose in the camera companies and service providers, the original digital camera company is, in fact, a large internet service provider and communications giant, but not in this country (Sony).

If one were to look at Internet traffic by volume of protocol, then the Internet is dominated by protocols whose roots are anywhere but in the halls of commercial origins. Bittorrent is the brainchild of Bram Cohen and filesharing goes back past FTP (Jon Postel and Joyce Reynolds both academics) to xmodem and CBBS - while Ward Christenson wasn't an academic it would be inaccurate to say that filesharing or bulletin board systems grew from a service provider or communications company. The notion that services and innovation flows from companies doesn't really stand up well under historical review.

# posted by

John : 3:27 PM

bitswapper:

I somehow think that JB meant to speak about innovation in a sense broader than playing dodgeball with port numbers (darknets notwithstanding). Blocking port numbers will just make people adept at switching port numbers - although that in itself spurs some really interesting developments. I also don't think the ends justify the means even if those ends are innovations.

I don't disagree. But that hardly means they haven't come up with something new (particularly if they do stuff more along the lines of evanescent private networks with encapsulation and encryptation, rather than just changing ports).

More to the point, the idea of "P2P file-sharing" rather than the centralised-server/user-client architecture of the older paradigms is an innovation in itself, even if it was done primarily with the idea of keeping "questionable" content off of readily identified and fewer main servers in the hands of corporations with nit-picking lawyers....

Cheers,

# posted by

Arne Langsetmo : 4:15 PM

bitswapper:

I dunno, I was only disputing the idea that companies like Google are responsible for the whole enchilada on innovation, when actually they stand on the shoulders of giants, and sometimes those giants are actually service providers and telecoms.

As for the whole debate about corporate v. academic, I usually like to stay out of it. I've watched far too many academic claims to having conceived and built the original arpanet, as if everyone else (BBN, Honeywell, ARPA) had a role similar to the gardener outside tending the ivy. In reality, it was an academic-corporate-government partnership, and so are the developments of many, many protocols, with many others developed in consortiums that contain the same mix. It's also very hard to say how many things flow from systems, UNIX for example, that seem to be newly invented but have extremely strong roots. If one looks at popular use of application, email reigns. It was invented at a company.

What I said above about venture capital holding court over new ideas could be said identically about academic credentialism. Point of fact is that innovation doesn't usually flow from establishments, it flows from countercultures. IP laws and contracts, however, favor establishments.

I don't think a business plan has anything to do with innovation, but there are very many who would disagree with me.

# posted by

ondelette : 2:14 AM

In the realm of decentralised services, maybe a tip'o'da'hat to such as Usenet and IRC for leading the way for the file-sharing innovations. These "people's networks" arose without corporate sponsorship; only later in the game did the corporations see there was something there that might be sold, and jump in....

Cheers,

# posted by

Arne Langsetmo : 12:50 PM

um, yeah. except that the first newsgroup was actually a list of good automobile mechanics in Fresh Pond, Cambridge. It was at BBN. Agreed that it had no corporate sponsorship and no one thought of making it commercial, though.

# posted by

ondelette : 5:07 PM

In reality, it was an academic-corporate-government partnership, and so are the developments of many, many protocols, with many others developed in consortiums that contain the same mix.

My favourite example of "partnership" was a newspaper article taped to one of the MIT AI lab PDP-10s, saying that Ted Kennedy had congratulated BBN for their contract for one of the first "interfaith message prcessors". ;-) We could use a few more of those nowadays....

Cheers,

# posted by

Arne Langsetmo : 4:25 PM

JB:

The threat of censorship by the networks is certainly a big worry, but you are continuing to ignore the problem of arbitrary censorship of visitors' comments and contributions on blogs and other websites (notably Wikipedia).

Also, we need laws against the use of IP addresses to block access. IP address blocking is illegal or frowned upon in Europe.

# posted by

Larry Fafarman : 12:35 AM

JB, you are really hurting your credibility by continuing to ignore the problem of arbitrary censorship of visitors' comments and contributions on blogs and other websites. At least the FCC is able to do something about access blockage by networks -- the FCC cannot do anything now about this arbitrary censorship on blogs and other websites. This arbitrary censorship is a particularly big problem because blogs and other websites (notably Wikipedia) are often authoritatively cited by court opinions, scholarly journal articles, the regular news media, etc.. Perversely, the dissenting comments most likely to be arbitrarily censored contain persuasive arguments and/or inconvenient facts. Dissenting comments that just contain unpersuasive arguments are usually allowed to remain as examples of the supposed weakness of the opposition.

# posted by

Larry Fafarman : 12:23 AM

Larry Fafaman said petulantly:

Perversely, the dissenting comments most likely to be arbitrarily censored contain persuasive arguments and/or inconvenient facts. Dissenting comments that just contain unpersuasive arguments are usually allowed to remain as examples of the supposed weakness of the opposition....

Sometimes a cigar is just a smoke.

Cheers,

# posted by

Arne Langsetmo : 2:49 PM

>>>>> Sometimes a cigar is just a smoke. <<<<<<

What in the hell is that supposed to mean?

Cheers,

# posted by

Larry Fafarman : 4:07 PM

Larry Fafarman:

"... dissenting comments most likely to be arbitrarily censored contain persuasive arguments and/or inconvenient facts. Dissenting comments that just contain unpersuasive arguments are usually allowed to remain..."

Sometimes a cigar is just a smoke. And a deleted comment ....

Look, you're smart. You figure it out.

And with that helpful hint, I will say no more and encourage no more.

Cheers,

# posted by

Arne Langsetmo : 6:31 PM

>>>>>> Sometimes a cigar is just a smoke. And a deleted comment ....

Look, you're smart. You figure it out. <<<<<<

And you're stupid.

I googled "sometimes a cigar is just a smoke" and most of what I found was "sometimes a cigar is just a cigar, " which seemed to have something to do with a cigar being a phallic symbol. But I could find nothing related to my comment. I can only presume that your statement is breathtaking inanity.

# posted by

Larry Fafarman : 2:55 AM

Friendship is like money, easier made than kept.
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# posted by

Unknown : 11:48 AM