Outsourcing Big Brother Redux and Network Neutrality

About a year ago, I gave a speech to the ACLU called Outsourcing Big Brother. In it I argued that a big problem with consolidation in the media and telecommuniations industries is that it facilitates a partnership between big government and big business in which we, as citizens, lose.

Yesterday’s revelation in USA Today provides yet another chilling reminder of why we need to embed principles like network neutrality and competition into law, and vigorously defend them if we care about our civil liberties.

As I keep saying, since the telcos and cable cos and others keep wanting to frame it this way, Network Neutrality isn’t AT&T v. Microsoft. Yes, the economics matter, and, as I’ve said before, I think abolishing NN is a disasterous economic policy. But, at the end of the day, I care because it goes to the heart of democracy and self-governance.

More below . . .

Last July, as part of a larger speech, I wrote:
“Consider the Internet. For the last decade, the Internet has created an unprecedented opportunity for people to speak and disseminate speech. In numerous court cases and testimonials, we have hailed the Internet as a true technology for freedom.

This nirvana of free speech did not arise spontaneously out of nature, or even as the result of technological determinism. The internet grew out of two important principles. The first was “common carriage,” the idea that the provider of the essential service (here, the phone lines that carried the original dial-up internet) must make that service available to everyone at the same rate and cannot interfere with anyone using the service. Mark Cooper has called this principle of common carriage “essential to the DNA of capitalism.” Historically, we have applied it to inns and tolls, so that goods could move freely. We applied it again to railroads, then public utilities like electricity and phones. This prevented the entity that controlled transport of goods or information from using control of this essential facility to extort monopoly prices or favor one type of goods or services over another.

The second principle was the right to interconnect. If I run a communications network, I have a right under US law to interconnect with any other communications network. This allows networks to compete. Without this principle, a rival network could never have a chance. The competing network would refuse to connect, and the few customers on the new network would not be able to reach the majority of people on the other network. (Economists call this phenomenom a “network effect.”)

The internet arose from this universe of common carriage and interconnection. It placed control of content and services in the hands of the people at the edges of the network, rather than under the control of the network operator.

But the FCC has eliminated both of these requirements, a decision affirmed by the Supreme Court in the Brand X case. This changes the nature of the internet.

Suddenly, only a very few networks – cable companies and telephone companies — control the bulk of subscribers. These companies can use their control of the network to block or degrade content or rival services. Or, through their user agreements, can access information and turn this information over to the government. What had been a technology of freedom now becomes a way to outsource censorship and spy on citizens without a warrant. Because the government that “deregulated” the broadband companies could reregulate them unless the companies play along.”

The latest disclosure of NSA spying once again proves the point. But we must understand that without legal safeguards such as Network Neutrality (or even better, interconnection and common carriage), we will continue to see incidents like this again and again.

This does not happen because phone companies or cable companies are evil. A few months ago, we learned that Yahoo! and Microsoft, companies on the “good” side of the Net Neutrality debate, also turned over search data to the government. These things happen because as fewer and fewer companies control al aspects of our communication and access to information, the more they become dependent on keeping the government happy and maintaining the status quo. And the more the government has a vested interest in supporting the status quo.

Certainly some companies“just say no” to the government. Google declined to share information with the government unless presented with a warrant. Qwest refused to share phone information.

But as consolidation without regulation continues, companies willing to refuse a government “request” become increasingly rare. Not that we find anything as obvious as a “let us spy on you or its Net Neutrality time!” Qwest did not suffer any obvious harm by playing odd telco out. But I wonder, if Qwest had outbid Verizon for MCI, would the Department of Justice been quit so willing so willing to sign off on the merger as it did with Verizon buying MCI and SBC buying AT&T? And while the cable companies and the telephone companies conversion to ecoming supporters of the FCC’s efforts to extend CALEA to all broadband providers has its roots in wanting to impose huge costs on potential rivals, it doesn’t hurt that it also buys them brownie points with the Department of Justice.

Robert Heinlien, the Libertarian Science Fiction author, put it best in The Moon Is A Harsh Mistress. In the novel, Manuel Garcia O’Kelly and Professor De La Paz (Heinlien did diversity when it was still subversive rather than cool) have come to Earth to represent the rebellious lunar penal colony. “Mike,” a self-aware computer, controls all aspects of communication on the moon. They have the following discussion:

Professor De La Paz: Kerala had a planned famine last year. Did you read it in the news?

Manny: No.

DLP: Because it wasn’t in the news. A managed democracy is a wonderful thing, for the managers….and its greatest strength is a “free press” when “free” is defined as “responsible” and the managers define what is “irresponsible.” Do you know what Luna needs most?…A news system that does not bottleneck through one channel. Our friend Mike is our greatest danger.

Manny: Huh? Don’t you trust Mike?

DLP: Manuel, on some subjects I don’t trust even myself. Limiting the freedom of news ‘just a little bit’ is in the same category as the classic example ‘a little bit pregnant.’ We are not yet free, nor will be as long as anyone — even our ally Mike — controls our news.

The telcos and cable cos tell us that Net Neutrality is a “cure in search of a solution.” Tell me, when do you get vaccinated? After you get smallpox or before you get small pox? By the time we feel the symptoms of the disease, it will be too late for the relatively painless Net Neutrality “cure.”

Stay tuned . . . .

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