How the tables have turned. At the dawn of the net neutrality debate, the good guys in the Internet marketplace were the scrappy platform startups created in dorm rooms and garages. The large, hidebound, incumbent infrastructure companies from telecom and cable wore the black hats, even though they weren’t the powerhouses they are today either.

Comcast, for example, was incorporated in 1969, the same year that ARPANET was rolled out. And the Bell Operating Companies were created by the 1982 divesture of the Bell System.

But there was a pre-existing hostility between telecom and the Internet owing to the fact that the people who created the computer-oriented Internet regarded themselves as revolutionaries. The opposing camps were labeled “net heads” and “Bell heads” by the net heads. Bell heads simply regarded net heads as customers.

Internet’s Critical Dependency

Net heads had an inkling that networks of computers were going to revolutionize the ways that people access information and communicate with each other. But they were also keenly aware that their innovation was critically dependent on the digital communications networks built by the cable and telecom industry.

Net neutrality codified their fears in the form of a proposed legal regime designed to force commercial networks to behave in a very restricted way. This regime was meant to ensure that the net heads would control the Internet in all its future forms.

So the fear that the old guard might someday take over the Internet, remolding it in the image of the traditional telephone network, motivated a regulatory preference that also ensured that very little progress would take place in the real networks. Net neutrality fans were willing to give up network innovation in order to dominate the Internet.

The Net Neutrality Sideshow

Implicitly, the net neutrality campaign steered policy makers’ eyes away from the early signs that the Internet may not always be the non-commercial utopia that connected universities in the 1970s without the perils we see today. Thanks to a restrictive acceptable use policy and limited reach, the early Internet was free of both ads and criminals.

But even in the ivory tower context, things weren’t always rosy: the first spam email was sent over ARPANET in support of a political candidate; the Morris worm invaded hundreds of computers; and the early phase-out of ARPNET gateways brought about congestion collapse, a condition in which broad swathes of the Internet were unable to communicate with each other.

The 1995 transition of the non-commercial Internet to the open, public system we see today benefited from free content. Some was offered by media properties interested in exploring new opportunities and the rest was simply stolen by firms such as Napster.

Many early Internet businesses were shady, offering content without license or selling unlawful goods. But the creation of net neutrality created a distraction that focused policy discourse on innovation harms that might take place in the future rather than present misconduct.

The Head Fake

In a 2008 San Francisco Chronicle op-ed, “Google’s Political Head-Fake”, I suggested that the rush of the platform monopolies to embrace net neutrality was a public relations ploy. At the time, Google was exploring a takeover of Yahoo!, its only remaining search competitor, and I believed the court of public opinion was vulnerable to manipulation. Here’s the money graf:

Any anti-competitive concerns motivating the net neutrality movement are theoretical, as no single carrier today has the power to fix prices. Consumers have an increasing menu of options for broadband networks, many of them wireless. A search monopoly is, however, a true gatekeeper, directing Web surfers toward some sites and away from others. When that power is combined with the ability to set prices for advertising, it’s a disaster not only for the Web but for democracy.

The Chronicle summarized the reason for a pending Congressional hearing on the merger in an eerily prescient way: “There is concern that tracking individual’s [sic] Internet activities violates their privacy.”

So here we are, nine years later, finally exploring the implications of massive platform monopolies riding on Internet broadband networks. Yes, they surveil our every digital move, push fake science and faker news on us, influence elections, endanger public health, and bankrupt entire industries, only some of which had it coming.

So this was the fate of the scrappy underdogs armed with nothing more than their genius and the marvelous wonder of a neutral Internet: they became monopolists while we were taken in by a sideshow.

The Road Ahead

The show isn’t over and the end of the world is not near. The Internet has also done plenty of wonderful things, such as extending education and business opportunities everywhere, personalizing entertainment, opening up communication between perfect strangers, and enabling discriminating readers to learn subjects quite quickly that we’ve never studied before and to update our knowledge on those we have.

We can only maximize the good and minimize the bad by sharpening our abilities to distinguish good information from junk, real news from fake, and snake oil from medicine. Tracking web visits isn’t inherently bad, but we do need serious controls over the sharing, retention, and protection of our personal history logs.

We don’t have the traditional gatekeepers helping us distinguish true from false information, so we need new ones that work in our more distributed world. And we have to be skeptical of information bubbles and echo chambers. And most of all, we have to recognize that the digital platforms can’t control our lives unless we play along.

The Platform Monopoly Problem

That being said, there’s a role for policy and regulation in the platform monopoly space. This begins, I believe, with the recognition that monopoly platforms like the Frightful Five aren’t very different from the cable and telecom networks that have taken the brunt in the net neutrality battles.

Since the FCC’s Computer Inquiries, communications policy has distinguished content and processing from communications infrastructure. Because we believe content is more valuable than carriage, the law gives the Frightful Five favors that the carriers don’t have.

But this distinction is faulty. Google, Facebook, Amazon, Apple, and Microsoft (and their weak sister, Twitter) are not content creators, they’re infrastructure and transmission companies. The content is created by we the users of the Internet and all they do it make it available.

Platforms all the Way Down

Without user-generated content and professional content from Hollywood and Nashville, there’s nothing for Google to index, Facebook to connect, Amazon to house in its cloud, Apple to sell from its app store, or Microsoft’s applications to format. So the platform monopolies are simply building more infrastructure on top of  the carrier infrastructure.

The Frightfuls have advocated for strict regulations on carriers – and none on themselves – by making the argument that there’s a fundamental difference in roles. But that difference is illusory. Google no more makes the web it indexes than Verizon makes the phone calls it carries over its networks.

Google’s algorithm is no more sophisticated than the traffic algorithms embedded in mobile networks. All in all, Google search is child’s play compared to the global LTE network.

When we recognize that both of these industries are doing essentially the same thing, it becomes rational to subject them to a uniform regulatory code. And when we do that, we eliminate the incentives for the games of regulatory arbitrage we see when the Frightfuls advocate for Title II on carriers and carriers advocate for the wholesale revision of the Section 230 free pass the platform monopolies enjoy.

Section 230 Not a License to Kill

Section 230 of the Communications Decency Act allows web sites to censor when they want and to refuse to discriminate the rest of the time. We can see the value of constructive non-neutrality at the platform level. Google’s search algorithm once returned more conspiracy theory sites (6 out of ten) to the query: “do vaccines cause autism?” than it does today (zero out of ten).

Google has been able to adjust its algorithm to eliminate the junk. It’s not unreasonable to demand the same level of diligence from Facebook with respect to fake news, Amazon with regard to placebos, Apple with apps, and Microsoft with botnets. The law makes this possible, but not necessary.

It’s prudent to ask for more. When Section 230 was drafted, the Internet economy was in its formative stages and lawmakers were right to adopt a framework that allowed it to flourish. Now that it has established itself as the dominant platform for commerce and communication, it’s reasonable to revise its regulatory apparatus so that we Internet users can flourish as well.