California Law Attacks Veterans

Stanford law professor Barbara van Schewick wants you to pay more for Internet service. The professor, hand-picked by Democratic presidential candidate Larry Lessig to succeed him as head of the Google-founded Center for Internet and Society, wrote California’s net neutrality law as well as most of the Tom Wheeler FCC’s Title II net neutrality regulation.

She has been roundly praised by Title II fans as the most energetic lobbyist for their cause [Emphasis mine]:

While teaching a full load at Stanford, [van Schewick]  flew to Washington almost monthly and had more than 150 meetings at Congress, the FCC, and the White House. No one individual met more often with the White House or FCC on the issue, according to public records. The FCC’s decision (and footnotes) reflect her work. She had a bigger impact than entire institutions. She is not a normal human, but thankfully she’s on the public’s side.

It’s no exaggeration to say van Schewick is obsessed with net neutrality. She once wrote a 600 page book arguing that the design of the Internet as well as the economics of the digital economy depend entirely on strict regulation of Internet service providers as well as a regulatory blind eye to merchants, such as Google, whose businesses depend on it.

Egg on her Face

Van Schewick is having a bad day. Politico reports that her California law will block a sponsored data app used by the Department of Veterans Affairs to make free health care available to vets.

Sponsored data is the system that allows service providers such as the VA to cover costs clients would otherwise incur for broadband services. The FCC refused to ban sponsored data in its Title II order, realizing that it could be beneficial in some, if not all, cases.

The significantly less knowledgeable California legislature followed its pied piper without misgivings, but they may be up for a mulligan. It’s one thing for a for an idealistic immigrant law professor to accidentally trample America’s vets, but state legislators should know better.

State Legislators Don’t Do Surgery

California’s term-limited legislators don’t have time to learn complex issues nor does its bureaucracy have much capacity for nuanced enforcement:

While the Title II order failed to issue outright bans on zero-rating and paid interconnection, California appears to be moving in just that direction. It’s generally necessary for any state-level net neutrality to be more hard-edged than an FCC rule because states lack the expertise to engage in case-by-case assessment of nuanced, sophisticated practices.

While the FCC took the position that zero-rating offers had to be examined on an economic and innovation basis, California simply says: “No, you can’t shift consumer costs onto platform providers ever, for any reason; no, no, no.”

The same logic goes for interconnection and Quality of Service. The definitions are hard-edged and  only the consumer can pay, regardless of the price, the conditions of sale, or any other factor. This is not exactly a sophisticated use of economic analysis.

Chainsaws aren’t good tools for public policy, but they’re all that California has at the moment.

Van Schewick’s Laughable Workarounds

In a blog post meant to stop the heckling, van Schewick offers a number of workarounds that might keep veterans healthy despite the trauma wrought by her obsession. After writing and testifying about net neutrality for twenty years, her ideas strike me as unlawful, unrealistic, or both. Let’s take a look at them.

Exempting Apps and/or People

  • To help, carriers could exempt all conversational video apps like Skype, Zoom and the V.A.’s telehealth app from people’s data caps. That way veterans, teachers, police officers, suicidal teens, retirees, people with low incomes and members of traditionally marginalized communities can all work, learn and get critical healthcare virtually.

Excuse me, but doesn’t this discriminate against all “non-conversational video apps” and well as all members of unfavored communities? Doesn’t this amount to a major violation of the spirit of a law meant to reduce ISPs to what Larry Lessig called: “daydreaming postal workers that simply move the data and leave its interpretation to the applications at either end?”

It’s also unenforceable. Many of us use Zoom for meetings in which we actively participate, but we also use it to attend webinars. Is Zoom a conversational video app when I use it to watch a city council meeting that’s also on YouTube?

What if I raise my hand and make a public comment? And what’s going on if I watch a Congressional hearing on YouTube while sending Twitter DMs to staffers? These questions are hard to answer because they come down to the totality of the usage.

Arbitrarily Reducing Prices Across the Board

  • Alternatively, carriers could offer more affordable unlimited plans just for veterans. That’s technically simpler than zero-rating and removes the need for it entirely.

Technical simplicity isn’t the issue, a fair price for a fair service is. While van Schewick’s first suggestion is flexible about who gets what from whom, she refuses to budge who pays the bill. Her position clearly advantages incumbents with massive private networks (read: Google, Amazon, Facebook) and impairs the ability of upstarts to level the playing field from the consumer point of view.

Free for Some, More Costly for Most

  • Carriers can also lower the cost of unlimited plans for everyone so people can use the internet in the way that’s best for them. That’s the real solution, not allowing ISPs to pick and choose what apps and what segment of the population gets relief from low data caps.

Carriers need to make profits, just as the firms sponsoring the Center for Internet and Society do. So no, carriers are not unique among businesses in being able to give services away for free.

Sponsored data allows them to provide free services without going out of business by sending the bill to someone like the VA. Such practices lower the overall subscriber cost of broadband without compromising quality.

In the absence of sponsored data, the average consumer price of broadband will increase, all other factors being held constant. VA has an interest in using broadband as much as possible because telemedicine delivery is more effective and efficient than face-to-face interactions at the clinic.

Snooping on Private Affairs

  • While not a solution to the real problem, carriers could turn off the program for California customers and just bump up California veterans’ data caps, while keeping the program the same in all the other states.

This is probably impractical because people are mobile. Does a Colorado veteran using VA telemedicine while visiting California pay broadband costs for visits? What about a Californian logging in while out of state? Does the VA know or care where a telemedicine user lives? Does the carrier providing a service to the VA know the identity and whereabouts of each user?

Putting Principles Above People

Coupled with the predictable consequences of the zero-rating ban, van Schewick’s pathetic workarounds highlight a defect in the overly ideological reasoning of the True Believer. The obsessive van Schewick is more concerned with the neatness of her collection of bans than with genuine consumer welfare.

Zero-rating is simply a subsidy that makes telemedicine and other advanced services available to a deserving population at public expense. It’s no different in principle than the Lifeline and Emergency Broadband Benefit programs.

Van Schewick clearly disfavors it because she believes it conflicts with an old, well established practice in Internet economics to the effect that everyone pays for their own service. But Internet economics doesn’t really conform to any such edict, and if it did we would have to abolish it.

Let the Internet be a Force for Good

People in need of help must be allowed to get it, regardless of anyone’s narrow ideas about who the correct payer is. This principle of the public good trumps Lessig’s and van Schewick’s immature notions about the source of the network’s virtue.

To the extent that the Internet is a positive force, it enables people to get their needs met. Arbitrarily making it more costly to consumers does not help.

The only way to correct this legal error is to amend or repeal the California law. I think all reasonable people can see that.