The Internet’s Lost Decade

Since the Internet was opened to the public in 1995, we’ve made very little progress in deciding how to regulate it. Contrary to claims that this new network is simply an extension of the well-regulated telephone system (most notably made in former FCC Chairman Thomas Wheeler’s 2015 Open Internet Order and related court filings,) the Internet is something altogether new.

As it offers unprecedented opportunities and pitfalls, the Internet demands a fresh new policy framework consistent with its design. The failure to create such a framework increases the chances that the Internet will do more harm than good in the long run.

Legal scholars sounded this alarm in the 1990s. Harvard Law professor Lawrence Lessig prefaced his 1999 book Code with the critical question for the Internet generation: “How do we protect liberty when the architectures of control are managed as much by the government as by the private sector?”

China’s Internet is a System of Social Control

China makes Internet-based businesses censor political speech. It awards “social credits” for compliant behavior based in personal information it harvests from the Internet. Its state-sponsored businesses have the capacity to surveil Internet users in other countries, although there is no public evidence that it has exploited this capability.

Fortunately, the US is not China. But the relationship between our government and our dominant Internet firms is often much too cozy. During the Obama Administration, a revolving door between Silicon Valley and the public policy apparatus appears to have shielded dominant firms from antitrust scrutiny. The FTC was aware of abusive conduct on the part of Google and did nothing to rein it in.

Still Much Too Cozy

Today, the Defense and Homeland Security departments are much too cozy with Trump advisor Peter Thiel’s Palantir surveillance firm. The Commerce Department favors foreign-owned Rivada Networks’ ambitions by obstructing the FCC’s efforts to make radio frequency spectrum available to US 5G operators.

High-ranking Commerce official Earl Comstock is a former lobbyist who argued that the FCC’s 2015 order didn’t go far enough in applying telephone regulations to the Internet.

Two administrators of the National Telecommunications and Information Administration – the Commerce division charged with advising the White House on Internet and spectrum issues – have abruptly left government service this year because of the Department’s bizarre priorities.

Vague and Ambiguous Goals and Objectives

The regulatory status quo permits government abuses because it’s too vague on the goals of Internet policy and the roles of government and the private sector. The primary law of the Internet is Section 230 of the Communications Decency Act, 26 words that shaped the Internet.

CDA 230 immunizes web platforms such as YouTube and Backpage from liability for enabling unlawful activity. Under its logic, wrongdoers themselves should bear responsibility for their actions, not the platforms that merely enable them to find audiences.

This logic seemed compelling in the happy time of its enactment, 1996. Protecting websites from public obligations enabled US firms to lead the world in creating a prosperous New Economy of good, high-paying, clean jobs.

Accountability is Lacking by Design

The remedy offered to victims of unlawful and malicious Internet content proved empty. The public is unable to assert rights or collect compensation from malefactors known to us only by cryptic pseudonyms. We can petition for more information, but we’ll typically only obtain a temporary IP address and a transient Gmail account name.

We can only have genuine accountability when platforms are required to verify identity before making content available to the Internet. One way to do this would be to require solid identification such as a credit card or a government ID. Such IDs are commonly stolen, so a waiting period might be in order.

Civil libertarians will complain that whistleblowers require anonymity. While this is true, it’s a special case that can be handled by the platform accepting responsibility for anonymous content.

Privacy has Never Been Fully Discussed

While Congress has held hearings on Internet privacy since the 1990s (I testified at one in 2009,) it is yet to produce a law. The FTC has been able to enforce Internet privacy to an extent, but states are muddying the waters with confused strictures such as the California Consumer Privacy Act, set to take effect next month.

The problem with privacy is that we don’t know what we want in a federal Internet privacy law. It’s not reasonable to ban the collection of preference and browsing information because that will make the Internet much less valuable to users and services alike.

The endless stream of cookie notifications mandated by Europe’s General Data Protection Regulation is a nuisance that benefits large companies. Some analysts suggest that privacy is less important than data protection against hackers.

It’s reasonable to allow Internet sites to collect as much information about us as they want as long as they actually use it to provide us with services and can protect it from unauthorized access. It’s also reasonable to require them to report to an online system easily accessible to Internet users the permissions we’ve granted them and the types of data they’ve retained.

Blocking, Throttling, and Prioritization

Regulations promising – in the name of net neutrality – to protect Internet users from blocking, throttling, and unfair leverage by platforms were a failure not because the FCC repealed them but because they never made any difference to begin with.

While we have all experienced viewpoint-based censorship and disfavor in our Internet lives, Internet Service Providers have never been to blame. Dominant Internet platforms such as Google search, Facebook, YouTube, Cloudflare, and Netflix select viewpoints for unfavorable treatment for reasons either good, bad, or algorithmic; AT&T, Comcast and Verizon don’t.

Net neutrality campaigners charge that the FCC’s 2017 repeal of the Title II regulations adopted to enforce net neutrality changed the Internet, but the only offenses they can cite would not have been prevented by the defunct regime.  American ISPs have never been in the business of deciding what sites we can visit or how fast pages load; they’re not about to change business models now that competition is on the rise.

A Thicket of Thorny Issues

Net neutrality burst on the Internet policy scene in 2003 when policy wonks were just beginning to grapple with anti-competitive practices on the part of the big Internet firms of the day. Questions about sharing or refusing to share content were vexing, especially in the light of CDA 230’s “anything goes” subtext.

Consolidation was a big deal, with competition authorities routinely approving efficiency-enhancing vertical mergers, as they should, over the objections of advocates more concerned with the “big is bad” mantra. But their penchant for also approving competition quashing horizontal mergers was troubling. The complexity of interpreting the first amendment so as to protect both speakers and platforms also engaged policy thinkers.

As noted, issues of privacy and surveillance were already concerning to lawmakers and policy analysts, most of whom appreciated the importance of advertising in enabling free content sites to sustain themselves. Lawmakers in particular found it difficult to draw lines around permissible practices in all of these areas.

A Lost Decade for Policy

The advent of net neutrality was a godsend in many respects: it was a simple issue that seemed to resonate on both sides of the political aisle. Net neutrality offered to ensure that the Internet would develop in the best possible way on all fronts: it offered policy prescriptions on consolidation, intellectual property protection, and privacy through simple rules.

Net neutrality sucked the oxygen out of Internet policy for a decade, turning every discussion of Internet policy into a debate over the best way to ensure the Internet remained true to this newly discovered foundational principle. But these promises were hollow because net neutrality only applied to one part of the Internet, data transmission.

While lawmakers worried about exceptions to a ban on the non-existent problem of Internet fast lanes, consolidation, surveillance-based business models, and random acts of censorship proceeded unchecked. It took the wholesale abuse of personal history by Cambridge Analytica in the US presidential election and the UK Brexit referendum to open eyes to the path along which the Internet was actually developing.

Playing Catchup

Perhaps the support for extreme net neutrality regulations on the part of the Internet’s most dominant firms – Google, Microsoft, Amazon, and Facebook were all boosters – wasn’t entirely altruistic. The neglect of the business practices that enabled them to rise to dominance went hand-in-hand with increasingly bellicose claims about the importance of controlling ISPs.

While it’s certainly important to ensure that the public interest isn’t neglected as advanced networks roll out in neighborhoods and rural markets across the nation, keeping these networks neutral is less important than having them provide universal service, high reliability, and ever-improving quality at affordable prices. Neutrality would be much more important if it applied to social networks than to broadband, but even there it falls short.

Market concentration, privacy abuses, security lapses, intellectual property theft, election manipulation, and false news are all burning issues; not one has come about because of a shortage of neutrality.

There are literally a dozen issues more important to the Internet than neutral broadband; they now deserve a great deal more attention than they’re getting. It’s time to put net neutrality out of its misery.