This is the fourth of a six-part series on public policy and the trouble the U.S. government has with balancing its role in providing access, on the one hand, and policing content on the other. This part focuses on the the current debate on net neutrality. The first three parts of this series are available here, here, and here.
While Congress was enmeshed in debates about the ill cognitive effects of screens on children, increasing indecency fines, and banning social networking use among teenagers from libraries and schools, there were important issues of access being raised on the blogosphere, in the popular press, and in Congress as well.
These issues include debates about fair use (look here, here, and here; also, see Siva Vaidhyanathan's Copyrights and Copywrongs and the Brennan Center for Justice's Will Fair Use Survive: Free Expression in the Age of Copyright Control.)
They also include the struggle of citizens to gain some abilities to be able to quote effectively from visual and audio texts through their own video commentaries and parodies (look at Kembrew McLeod's Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity), as well as potential ways to bridge the digital divide to provide access to digital and broadband technology across geographic and socioeconomic boundaries. Seth Shulman writes in Owning the Future, page 183, "The Internet stands at a crucial juncture: This new communication tool could benefit all citizens, or it could line the pockets of select groups, reinforcing existing disparities." However, the battle for a free market and more equal access does not have to inherently be opposed, as the question about which aspect of "free market" a libertarian perspective would take into account indicates.
Yet, perhaps the most central online legislative issue of the past year has been net neutrality.
The net neutrality debate became a key issue last summer, when the House discussed abandoning the principle of network neutrality in favor of allowing service providers the chance to favor some sites over others, especially after the FCC diminished net neutrality rules. Telephone companies are leading a strong campaign stating that service providers should not be required to give equal service to sites which use more bandwidth, as these companies claim neutrality places an unfair burden on their ability to provide efficient service. The issue had first entered the popular press in early 2006, when journalist Christopher Stern wrote, "The telecommunications companies' proposals have the potential, within just a few years, to alter the flow of commerce and information--and your personal experience--on the Internet. For the first time, the companies that own the equipment that delivers the Internet to your office, cubicle, den and dorm room could, for a price, give one company priority on their networks over another."
The immense power of these service providers' lobby groups made a difference in 2006, as a variety of decisions indicated the abandoning of a content-neutral atmosphere online. See March Ash's interview with PBS journalist Bill Moyers for more on this perspective.
However, net neutrality has opened up a key debate for American libertarian values in particular. While traditional arguments may be that a lack of government intrusion means that these service providers should have the right to regulate the content that flows on their sites how they see fit, another argument would be to see the Web as a marketplace of its own, in need of governmental protection to ensure a free market online. In that case, net neutrality is essential from a libertarian perspective, to ensure competition in the market. For instance, Ira Magaziner points out in "Democracy and Cyberspace: First Principles" (part of the Henry Jenkins' and David Thorburn's Democracy and New Media) that, "increasingly, economies are going to be dependent upon the Internet for their economic growth over the next couple of decades." If the Internet becomes an extension of the market itself, according to this perspective, then net neutrality becomes an important feature.
Further, from this libertarian perspective, service providers become carriers for that service who must remain neutral to hold the market together. In this regard, the following quote from Philip E. Agre in his essay "Growing a Democratic Culture" (also in Democracy and New Media) is illuminating: "No technology is ever a sufficient condition for anything. It only facilitates." In this case, Agre was discussing utopian ideals that the Internet provided, de facto, an equal ground for every social group and pointing out that the technology may provide opportunities but not social realities, an appropriate point for this second libertarian stance on net neutrality.
The Senate Commerce Committee initially removed a rejection for the addition of a net neutrality clause to current legislation aimed at easing restrictions for telephone companies to get involved in pay television, and the main tenants of net neutrality had already been rejected by the House and were on the Senate floor.
However, the end of the year brought the AT&T/BellSouth merger, in which a clause stated that, "Effective on the Merger Closing Date, and continuing for 30 months thereafter, AT&T/BellSouth will conduct business in a manner that comports with the principles set forth in the Commission's Policy Statement, issued September 25, 2005." However, the FCC press release emphasized that these "conditions are voluntary, enforceable commitments by AT&T but are not general statements of Commission policy and do not alter Commission precedent or bind future Commission policy or rules."
Then, at the beginning of January 2007, the new U.S. Senate launched a renewed push for network neutrality, with a bipartisan effort through the Internet Freedom Preservation Act, introduced by Byron Dorgan, D-ND, and Olympia Snowe, R-ME, the same senators who proposed the bill in 2006.
The news was predicted by Scott M. Fulton III at BetaNews. He wrote, "Last March, a bipartisan telecommunications reform bill that had arguably gained bipartisan support in both houses, sponsored in large part by Sen. Ron Wyden (D - Oregon), was indefinitely tabled by the leadership of both the House and Senate committees on commerce. Its replacement was a hastily drafted substitute bill, penned by House Energy and Commerce Committee Chairman Joe Barton (R - Texas), with the key objective to specifically enable cable TV providers (CATV) to apply for national licenses that could permit them to do business in areas where other broadband providers may already have acquired local or municipal licenses."
Perhaps, with the regime change in Congress, the senators hoped to ride that momentum and the recent consessions made by AT&T, as Cynthia Brumfeld suggests. The bill is backed by senators like John Kerry, Hillary Clinton, and Barack Obama.
The proposed bill would prohibit activities that, as Sen. Dorgan said in a statement, would "fundamentally change the way the Internet has operated and threatens to derail the democratic nature of the Internet." Anne Broache with CNET News writes of the movement in support of net neutrality that statements from the industry that they should have the right to charge content providers for better placement in order to help offset infrastructure costs promoted "Internet companies, consumer groups and a number of high-profile backers--ranging from actress Alyssa Milano to Vint Cerf, one of the Net's technical pioneers--to mount grassroots campaigns calling for federal regulations barring such a practice. They content that any prioritization threatens the freedoms that Internet users have always enjoyed."
Snowe calls the very idea of charging content providers a "toll road" for the Internet, as others have labeled such activities in the past, and Dorgan was quoted as saying, "The Internet became a robust engine of economic development by enabling anyone with a good idea to connect to consumers and compete on a level playing field. The marketplace picked winners and losers, not some central gatekeeper. That freedom-the very core of what makes the Internet what it is today - must be preserved." However, Verizon's Peter Davidson calls the proposals "Net Regulation" that is "trying to solve a problem that doesn't exist."