Title II a Win, But I'm Still Worried

The Ruling

Last week, after a very long campaign by various interest groups, on both sides of the debate, Tom Wheeler finally announced his proposal for FCC rules governing the internet. What seemed highly unlikely a year ago, now seems highly probable: FCC will use its Title II authority to reclassify the internet, a strong win for Net Neutrality. What is even more is Wheeler announced that he plans to include “bright line” rules for mobile broadband as well.

Win. Win. Win. Throw a Party. Let’s hear it for Net Neutrality.

Not So Fast …

Okay, just to be clear here, I am a strong proponent of Net Neutrality. Indeed I think it is probably one of the most important policy issues facing not only our government, but global governance structures as well. And, I am glad that the FCC is moving to reclassify under Title II. During the SOPA and PIPA debates it seemed to me that we were rapidly moving towards a structure where monied intrests and government would look to control internet governance and architecture. And while SOPA and PIPA were defeated, it looked like to me that rather than legislate the internet in one big package, we would see a bunch of small moves that would eventually degrade the integrity and value of the network (Netflix’s deal with Comcast being one of the premiere examples here). So, it is encouraging to get such a big decision that clearly moves to protect the internet, arguing that ISPs should be held to “common carrier status.”

But while many of the citizen groups that campaigned hard to see this happen celebrate, I am still worried. I don’t think this was necessarily as “big” a win for grassroots movements as some want it to be. To be clear here, I have no doubt that organizations like Demand Progress and EFFplayed a significant role in helping to secure a Title II ruling, and these groups deserve a lot of credit, and if all my donations to EFF ever did was to help make this happen I would consider it my best yearly donation I ever make, but still there is something about the way this ruling went down that ought to concern the wider public.

Why This All Matters

To see why I am concerned I want to take a step back and point to what I think is important about Net Neutrality. To look at this issue from the perspective of politics and communication.

I don’t think I would overstate the case to say that the operating architecture of a good Democracy is communication. That is to say, that a democracy functions only on condition that citizens can communicate to and with one another.

In _The Republic_ Plato says that the optimal size of a democracy is 5,040 people. This seems like a strange idea, that democracy has an optimal size, and indeed one so small given the size of many contemporary democracies. But Plato’s point was that a democracy could function only in so much as the people could adequately communicate with each other, have their ideas heard by the other members of the polis. The 5,040 number reflects the largest number of people that could gather in one place and be heard.

Indeed at the founding of the United States, one of the arguments mounted by the anti-federalist is that the United States is just too big too spread out to be capable of becoming a democracy. Its size and diversity, what we now see as an advantage of the US nation state, was seen as a serious impediment to democracy. Madison’s answer to this critique was “roads, and post offices.” Or more precisely that given the new technological affordances of the late 18th century a democracy could work, because the ability to communicate across distances had greatly increased.

Communication is central to the functioning of a democracy. There is a much longer argument here, and one that would take us away from the direct topic at hand, but suffice it to say the technology of communication shapes the possibilities (the limitations and affordances) of how publics are able to talk, deliberate, discuss, and form. Indeed this would be my reading of the first amendment, a model for how democracy works: freedom to determine personal views (religion), the ability to meet to discuss those views (right to assemble), the ability to share and discuss those views (press and speech) and then the ability to use that discussion to alter civic life (petition the government). Any such system requires a robust communication mechanism.

And in the long form of this argument I would make the case that the broadcast era, television and radio, are low points in democracy, because they centralize the means of communication, enabling a select few to reach a very wide public, and short circuit any kind of mass deliberation. Broadcast media are actually pretty bad for a democracy because of the centralization of communication.

Enter the digital network. The particular affordance of the digital network is that it allows the largest number of participants to (in theory) participate in the discussion. While attention may be centralized, the communication architecture treats all communicative utterances equally, at least at the technical level, this is the central idea behind Net Neutrality. Indeed it actually isn’t such a strange idea, or a particularly new one. (The Post Office was originally conceived of as a net neutral way of communicating, and foundational for the operation of the American democratic process.)

Back to Wheeler

This brings me back to Wheelers comments on the move to classify ISPs under Title II. What is particularly striking about his comments is the _utter lack of civic justification_ for Title II, but rather a heavy reliance on the economic, innovation argument for reclassification.

In the opening paragraph Wheeler says, that he is moving to “preserve the internet as an open platform for innovation and free expression.” What is concerning though is after this initial opening sentence the rest of the remarks drop almost any mention of the “free expression” justification, and instead rely almost entirely on the “preserve innovation” argument. Indeed the rest of the article pits commercial interests against consumers, treating the public’s interest in this matter as simply one of economics and consumerism. Indeed the only other mention of the internet as a means for public communication, community development, and individual expression comes in the closing paragraph where the internet is cited as, “an unprecedented platform for innovation and human expression.”

The story Wheeler tells to justify the switch to Title II is of a company, NABU, that gets locked out of the market because the networks were able to act as gatekeepers. Throughout his remarks he shows that open networks allow for economic innovation and progress, while closed ones slow down the march of progress and benefit a few players.

Okay, so fine, I have no doubt that open networks foster innovation, that the greatest measure of progress occurs when there are not limits to the barriers to entry. But honestly the fact that NABU got squeezed out of the market by AOL seems to me only a secondary reason to argue strongly for Net Neutrality.

The primary argument for Net Neutrality is, and ought to remain, the principle that an open network invites the largest range of participants to the communicate, to share ideas, form communities and engage in civic conversations. Honestly even if Net Neutrality hurt economic innovation, the political and civic justification would outweigh the economic one.

Basing a decision on the information architecture of our democracy on whether or not it fosters economic innovation seems like a bad policy. A proposal whose logical justification turns on economic innovation and progress is a weak endorsement of a central civic institution, a bit like saying lets support libraries because people go to them to research how to open businesses. Sure that’s one use for the system, but that’s not its most important one, not even close. Or if you rather its a bit like saying the Postal System is great because it allows for businesses to engage in direct mailing to promote their business.

In some sense I understand this. In order to win the battle for Net Neutrality activists concerned about the civic function of the internet sided with the powerful business interests that want an open net. Government works in large part due to money spent and having powerful allies like Google, Netflix, Twitter, and Facebook who can bankroll lobbying efforts is important. But let’s also be clear many institutions supporting the move to Title II do so not because of any social benefit, but merely for an economic one, and if they suddenly were to benefit from a more restricted, business determined structure they would switch sides by the close of the stock market that day.

And I don’t mean here to poor cold water on all the work activist did. I have no doubt that the heavy public commenting (which Wheeler mentions) and aggressive civic campaigns helped tip the battle here, but lets also be reasonable in our assessment, this was also in large part effective because the monied interests were divided, and an justification for Title II that rests in part, and in this case in main, on innovation and progress as the reasons is a weak one indeed.

Importantly here, let’s keep in mind that a Title II reclassification isn’t Net Neutrality, and it isn’t reclassifying the net as a utility or a civic institution. This ruling doesn’t recognize that citizens have rights online, it doesn’t regulate what ISPs or businesses can and can’t do relative to privacy (Facebook, Google, etc would fight this), it just gets us closer to the reclassification and protecting the network according to common carrier status, that’s it. Yes a step forward, but also a reminder that there is lots still to be done.