Looking for Libertarian help with Saving the Net

Interesting video on the Threat to Net Neutrality.

Well done, but I’m not crazy about bills that legislate something that isn’t well-enough defined or understood. By which I mean both the Net and Neutrality.

Here’s S.215, for example. (Full text here.)

What’s meant by “lawful”? Or “broadband”? I suspect the language in this bill will be as antique in five years as the languge of the 1934 act is today. And if this new bill passes, the untintended legacies of both will still be in force.

The framing bothers me too. It is all inside what Bob Frankston calls The Regulatorium. I’d rather see the Net defined and understood outside of that.

This is not to say I don’t think the Net is threatened. It is. I just think its biggest enemy is lack of imagination, not lack of regulation. And by that I mean lack of imagination by both the carriers and their opponents.

The carriers have trouble imagining being in any businesses other than the “triple play” or “quad play” they’re offering now, or to imagine there are any benefits to incumbency other than improvements on the customary forms of coersion.

The pro-neutrality folks have trouble imagining any case to make other than one that involves more lawmaking and regulatory relief.

Both are arguing inside the Regulatorium.

By policy and temperment Libertarians and dynamists like to think and work outside the Regulatoriium. So I’m wondering where creative ones might want to go with this thing. Adam Thierer’s 2004 Cato Institute policy analysis on Net Neutrality makes some important points, especially about unintended consequences of legislation, but it’s framed entirely within The Regulatorium, and the belief that the Net is (in Bob Frankston’s words) a “thing” we “consume”. And the somewhat Libertarian Wall Street Journal, now more than ever the Church Bulletin of the Republican Party, still sees “The Market” (at least where the Net is concerned) as “Your Choice of Lock-In”.

I’d rather look at the Net as the best marketplace the world has ever known. Nothing is more wide open and supportive for business, as well as culture. Is the best way to grow that marketplace to have it reduced to a crippled “service” offered as gravy on top of TV and telephony? Or to oppose that with legislation?

I think the Net will grow best if lots of players enter its marketplace with new value-adds — including the carriers themselves, leveraging advantages to incumency other than their position to charge monopoly rents.

I think there is lots of opportunity for individuals and small businesses to take the lead by connecting to each other any way they can, with or without carrier help.

Think about all the small businesses that could be liberated to do inventive new stuff if the carriers didn’t overcharge “business” customers (a legacy of Ma Bell that hasn’t gone away, and needs to). Think about how many generic (and generative) servers, services and data storage facilities could be installed in old switching plants and cable head-ends, operated by the carriers themselves or in partnership with the likes of Amazon, Google or Rackspace — taking advantage of both existing real estate and low latency connections to customers. Think about what will happen when the last mile becomes the first one — when consumers not only become producers, but when electricians, small contractors and homeowners can start deploying their own infrastructure from the edge inward. For a peek at how that will start to work and look, check out some of the pictures here.

My point is that we need other voices here, other ideas, new arguments. Fighting threats is good. Pursuing opportunities is better.

13 comments

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  2. Crosbie Fitch’s avatar

    The crusade for network regulation in the name of neutrality moves on apace and collects an ever larger entourage of concerned, but misled citizens.

    People are misled, because they imagine that ‘neutrality’ means that their communications must be treated irrespective of content and communicants.

    What neutrality actually means is that whatever communications are permitted must be treated irrespective of content and communicants.

    Enforcement of neutrality means that the state will regulate what communication is permitted and regulate ISPs to ensure it is treated neutrally.

    Thus it’s quite possible for certain communications to be denied because of their content (copyright infringing content) or their communicants (seditious or obscene sites, wifi points open the public, etc.).

    What would be far better would be to regulate the market of communications providers, ensuring it is competitive, than to regulate communications providers themselves. After all, ISPs couldn’t start offering preferential treatment to publishers if their otherwise captive and suffering customers could find alternative ISPs that sold a non-preferential service.

    Extracted from Regulation of Communications (Net Neutrality).

  3. Kevin Werbach’s avatar

    Doc-

    Right on. A lot of people involved with the technical or business aspects of the Net have been uncomfortable with the Net neutrality debate all along, for the reasons you outline. The FCC hearings over Comcast’s BitTorrent manipulation are a perfect illustration. Even if we say retrospectively that Comcast did “A Bad Thing,” that can’t mean the FCC should dictate the proper use of RST packets.

    I wouldn’t get your hopes up for the libertarians, though. They’re the ones convinced the market solves all problems. Most libertarians categorically distinguish between restrictions imposed by private companies, and those imposed by governments. They’re still thinking from the center, not the edges.

    My starting point for the answer is to refocus on interconnectio rather than non-discrimination. This is about how my devices, services, and data connect with the rest of the network. It’s fundamentally similar to what’s going on now with the social networks over data portability/availability/etc.

    The escape from the Regulatorium, I’m beginning to think, is to restructure the FCC as a quasi-standards body, like some of the open source foundations. Not to define the standards, but to provide a forum for adopting and implementing them. It’s not a perfect analogy, but think of the role the IETF and W3C played in the growth of the Net.

  4. toivo’s avatar

    My point of view. Telcos are monopolies owning the pair of optical cable. There is no need to have twice the cables to cover specific area (for the short term. On the long term the demand grows). There are quite harsh entry barriers (coffee shops vs telco)

    Thus. Monopolies should be regulated. Possible options: a) higher corporate tax and\or b) “be fair to others”. So the government could take money from telcos operation on the urban areas and cover the cost of building the internet infrastructure for the countriside

    What do you think?

  5. Doc Searls’s avatar

    Kevin,

    My appeal to Libertarians goes straight to the open source/free software readership of Linux Journal, where I would have posted this if I hadn’t run into a temporary glitch there.

    The problem for many Liberatarians is that “the market” too often takes the form of giants that gobble up a category leaving no choice but that between Tweedle Godzilla and Tweedle King Kong. This can be rationalized as “okay” as long as government isn’t involved, but the virtues of entrepreneurship, choice and other forms of free market goodness tend to be prevented when only the Grendels rule a category.

    This is why I tried with that argument to appeal to Dynamists as well. Seems to me the Net is a perfect environment for dynamistic activity out the wazoo, as long as the monopolists and duopolists, and their running dogs at the FCC, don’t work to prevent it.

    And right now the Net as “delivered” via crippled services (blocked ports, hard-to-get IP addresses, prohibitively high “business” pricing, bandwidtch subordination of the Net to live TV) prevents more business than it supports. Thus few of us know, as long as our “bandwidth” keeps going up by small measures, what we’re missing.

    I like the interconnection angle. It seems somewhat similar in its virtue set (though not its focus) to what Bob Frankston has been saying about connectivity as the superordinate virtue.

    I like scaling back the FCC’s purview in general. We’ve lived too long in 1934.

  6. Richard Bennett’s avatar

    The Celtics won game 7 of the Cavaliers series by employing a very simple strategy: get the ball to Paul Pierce and get out of the way. The FCC does its best work when it employs a similar strategy, as it did in the cases of WiFi and UWB. They identified some swaths of bandwidth, set transmit power limits, and got out of the way.

    When the agency gets closely involved in operational details, they generally blow it.

    One area where they’re pretty weak is in the resolution of ambiguities in regulations. There were questions about how to measure the power level of UWB devices with different on-off duty cycles, and that lead to a split in the standards community between approaches dictated by different interpretations of the regulations.

    I’d like to see an experiment where the FCC licenses some spectrum to a standards organization, which then draws up a standard and a certification process such that any conforming device can use the spectrum with no further licensing. This would actually be the best way to approach the White Spaces, as the approach put forward by Google et. al. is unworkable.

  7. Russell Nelson’s avatar

    Kevin says “libertarians are convinced the market solves all problems.”

    Stuff and nonsense! Nobody thinks that the market solves all problems. What libertarians believe is that the market solves most problems better than politics. You might be able to find a few problems which politics solves better than the market … however if you give them the power to fix those problems, politicians won’t be able to stop using it to solve other problems for which politics is inappropriate.

    When all is counted, political solutions are worse than market solutions. The only helpful role the government has to play is to keep violence at bay.

  8. Kevin Werbach’s avatar

    Russell, you’ve illustrated my point perfectly. If “nobody thinks that the market solves all problems,” why do you think “the only helpful role the government has to play is to keep violence at bay?”

    Of course we’re choosing between options here. My comment to Doc, which you’ve reaffirmed, is that libertarians will reject government intervention of the sort Doc is seeking. They will take an innovation-killing market equilibrium over an innovation-promoting intervention, because they believe in the Schumpeterian instability of those equlibria and are radically skeptical of interventions. That’s the problem. (Well, the problem is also the small matter of ignoring that the initial conditions are not a market solution to begin with.)

  9. Kevin Werbach’s avatar

    Oh, and Richard, why stop at spectrum?

  10. Richard Bennett’s avatar

    It seems like a good place to start.

  11. Richard Bennett’s avatar

    …because the standards bodies aren’t all that functional either, you see, so we can’t give them too much power right off the bat.

  12. Mike Warot’s avatar

    The situation is pretty glum right now, there probably won’t be a migration to IPV6 in our lifetimes, if J H Woodyatt is right. This will be a reason to lock everyone behind NAT eventually.
    The security situation on the PC front is equally bad, regardless of operating system, they all run with ambient authority, and thus can’t be made secure. This will be an excuse to filter the net.
    The political expediency of forbidden content continues to grow, thus giving justification for searching our laptops at the borders, and watching all of our Internet traffic via Carnivore, Echelon, and who knows what other systems out there sniffing every byte we emit or consume on the net.
    George Orwell layed this all out for us in 1984, an there doesn’t seem to be any way to stop it.
    –Mike–

  13. Russell Nelson’s avatar

    Kevin, I said that the market cannot solve all problems, and that government has a role to play. How is this contradictory? That role should be limited because the nature of government limits what it can effectively accomplish.

    I think we’re making different assumptions about the nature of government. Please read
    http://cafehayek.typepad.com/hayek/2008/05/willie-sutton-a.html to help understand the difference. I subscribe to the public choice theory of government, but I suspect you subscribe to the market failure theory.

    Yes, this problem has been created by government intervention in the first place, and libertarians (for whom I do not speak except for myself) tend to want to see that intervention removed and not replaced by something potentially worse. On the other hand, you’ve got undesirable starting conditions to deal with, but given that the government has done a bad job so far, expecting government to fix it is faith-based governance (if you do the same thing and expect different results, you’re not rational.)

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