Net Neutrality Fight Brewing in Congress

I can’t say I was entirely surprised to learn that Senators Markey and Wyden and Congresswoman Matsui are preparing net neutrality bills. The status quo is unworkable with the courts stripping the FCC of its Congressionally delegated authority to set national broadband policy and states stepping into the void with their own poorly-reasoned laws.

The timing for such a measure is apt because any FCC action to impose telephone-style Title II on the Internet is likely to run afoul of the Supreme Court’s new stance on major rules. Continuing the fight to confirm Gigi Sohn to the FCC while the legal status of her pet issue is in doubt would be fairly pointless.

Chair Rosenworcel certainly supports Title II regulation of Internet service, but with much less enthusiasm than she has for other initiatives. She’s all for breaking the shackles of constricted Internet service by pushing wired and wireless connection speeds to ever-higher plateaus. Improving quality means more to her than the largely symbolic equity goals of the net neutrality seekers.

Of Course it’s Not Going Anywhere

60 votes in the Senate for a Title II bill is the smokiest of pipe dreams; the two-page bill would be lucky to get 45 votes. Even if it were to pass by some miracle, the consequences of treating broadband as a common carrier service would be severe across the entire Internet today.

The desire of the anti-science crowd to treat social media as common carriers flounders on the fact that even broadband ISPs are not currently subjected to that archaic regime. But social media critics from Justice Thomas to Sen. Cruz, former president Trump, and the Texas legislature have advocated for anti-censorship regulations on social networks.

I would expect to see the Markey/Wyden bill subjected to amendments broadening its scope to social media if it were ever to get a hearing. Democrats such as former Senator Franken have argued that net neutrality should apply to social networks in the past, so some may even favor such expansion.

Gatekeeper Power Never Was an ISP Thing

Net neutrality has undergone a number of reincarnations from its original attempt bypass the consumer welfare standard that stifled  neo-Brandeisian antitrust advocates. It became the Internet’s first amendment and then a bridge across the digital divide.

The fundamental premise in each case was that ISPs had unique “gatekeeper” power because of their proximity to the consumer. This argument is flimsy because most of us use more than one ISP and no ISP serves most Internet users. In reality, cloud and CDN services have a better shot at blocking or managing access to content.

Not only do they serve all major Internet sites, many literally sell a gatekeeping service (Cloudflare blocks DDoS attacks,) all promise accelerated “fast lanes.” Then-Chairman of the House Communications and Technology subcommittee Marsha Blackburn once held a hearing on gatekeeping inspired by one of my tweets in response to Cloudflare founder Matt Prince.

Regulating the Content Moderators

To the extent that anyone cares about Internet gatekeeping these days social networks are in the crosshairs. They should have been all along because ISPs have never monetized content moderation while all social networks do. If you’re worried about the spread of online disinformation or about its opposite – the censorship of your favorite fabrication – social networks are your target.

And if you’re upset about the ability of deep pockets to buy faster Internet service, capitalism is your target because there are so many ways to get it done: expand your private network, interconnect at the best locations, build or buy a CDN, install more servers, pull your own undersea cables, or even redesign core protocols in your own browser.

If ISPs were never the scariest forces in stifling speech and the Internet’s growth, why did a movement make them Internet enemy number one? To understand that we need to understand both the Internet’s history and the personalities of the net neutrality hucksters.

It’s Not 2002 Anymore

Sure enough, when Tim Wu delivered his first paper on net neutrality in 2002, ISPs were the largest players in the Internet marketplace. Content was spotty and poorly monetized and today’s behemoths were in their formative stages.

Google in particular was seen as a scrappy upstart rather than an abusive monopolist. It bankrolled Public Knowledge (Gigi Sohn’s child) and the rest of the movement. Its image helped it escape regulation as it gobbled up potential challengers such as DoubleClick.

Surely, Wu and his mentor Larry Lessig could have foreseen the rise of the edge players. The lawsuits over content practices and consolidation were underway in the 1990s and the trajectory was pretty obvious. Section 230 was written in response to one such suit, the 1994 case of Stratton Oakmont, Inc. v. Prodigy Servs. Co.

Personal Motivations

It would not be outlandish to suggest that Wu and Lessig seized on net neutrality more to make an impact on the present – Wu’s desire to become a public intellectual – than to make a lasting impact on public policy. If that’s the case, it certainly worked as Wu is now a special assistant to the president for technology and competition policy while we’re still waiting to see the Great ISP Takeover.

Similarly, Senators Markey and Wyden pioneered the 1996 Telecommunications Act and Section 230 respectively, but they’ve had very little impact in the Internet since. It just so happens that this bold new legislative move puts them back in the spotlight while cementing Wu’s place in history.

We have to wonder whether we’re seeing now seeing insight or mere persistence. One thing is clear, however: if this bill passes it will have more to do with the Supreme Court’s revival of the Major Questions Doctrine than with the state of the Internet in 2022.

I’m looking forward to a lively debate, but the focus will be on content moderation rather than on (largely non-existent) abusive ISP business practices.