Wednesday, December 29, 2010

The Legal Academy’s Phantom Svengalis (Net Neutrality Edition)

Frank Pasquale

I've been disappointed by the FCC's recent moves on net neutrality. They are not only weak substantively, but also appear vulnerable to jurisdictional challenges.* Like many others, I've been wondering what the FCC chairman was thinking as he delayed action and then ultimately proposed rules that, as Craig Aaron states, are "riddled with loopholes." A recently published reflection on Tim Wu's book The Master Switch by Bruce Gottlieb (who "worked, until this summer, as a senior advisor to [FCC] Chairman Genachowski and was involved in some of the earlier actions that led up to last week's decision") offers some insight.

Gottlieb's piece is perceptive and engaging, but one part of it struck me as surprisingly off-base. After describing the work of Wu and Larry Lessig as policy entrepreneurs, he laments the scarcity of countervailing voices in the legal academy:

[Wu] is one of perhaps half a dozen closely-allied academics on the law faculties of elite universities like Harvard, Yale, Michigan, and Stanford (at varying times) who share the same concerns and a critical but nevertheless firm belief in the need for a broad government role. Inexplicably and disappointingly, there is little counterweight in the elite legal academy on the side against. A few high-profile academics, mostly on economics or engineering faculties, have written against Net Neutrality and related ideas. But they remain less effective and, apparently, less interested in making an impact in Washington.

Is it really possible that Gottlieb has not heard of the work of Christopher Yoo and Wu's Columbia colleague Scott Hemphill? Did he miss predictions from a law school center that net neutrality could cost 502,000 jobs? I cite many legal academics critical of net neutrality in this piece; what are they, chopped liver? One need only turn to the pages of the University of Colorado's Journal on Telecommunications and High Technology Law to see the many twists and turns the debate has taken over the past half-decade.

Now let's consider another possible implication of Gottlieb's piece---that engineers are an inadequate counter for silver-tongued lawyers. It turns out that what will likely be seen as the capstone work of the entire net neutrality debate---the most comprehensive and profound analysis---is Barbara van Schewick's Internet Architecture and Innovation. van Schewick is a powerful voice in favor of net neutrality, and yes, she does teach on the Stanford Law Faculty. But she also has a PhD in computer science and is an Associate Professor of Electrical Engineering. So can we dispense with the idea that the "real techies" are being drowned out by a starry-eyed legal elite?

There is no need for yet another sloppy characterization of the legal academy as out-of-touch do-gooders. What's remarkable here, as in many other policy debates, is not the bias of "liberal professors," but the fact that the US is so slow to even consider sensible reforms long ago adopted by other advanced industrial nations. Where Gottlieb sees pie-in-the-sky proposals, I see only a technocratic (and often tepid) response to what is becoming a crisis in Internet openness and accessibility. If people like Wu, Lessig, and Susan Crawford have have some influence on internet regulation, it is because of the power of their ideas, not the failure of the "elite legal academy" to provide a counterweight. Academic bias in this area is trivial compared with the warped information environment a non-neutral internet would create.

*Just to be clear: I am not saying that the FCC's proposed jurisdictional basis in Section 706 is wrong, just that it is vulnerable to attack as not actually supporting the FCC's claim of ancillary jurisdiction here.

X-Posted: Concurring Opinions.