Communication, Law, & Power | The Net Neutrality Debate

Net Neutrality The Internet as Power Apparatus and the New Culture War Pasquale J. Festa INF390N Communication, Law, and Power Prof. Stein 5.11.2007

Festa 1 Pasquale J. Festa INF390N Communication, Law, and Power Prof. Stein 5.11.2007

Net Neutrality: The Internet as a Power Apparatus and the New Culture War Introduction.

It seems that in our contemporary day, despite countless court battles and an exhaustive degree of political activism on the part of the progressive left, we find ourselves in a world where the individual’s freedom of speech is threatened with the silencing hands of marketplace and political forces. Currently, the battle over Net Neutrality is being waged in corporate offices and on the legislative floor. The possibility of the Internet turning into a glorified boob tube is on the horizon. Net Neutrality advocates such as Lawrence Lessig and Timothy Wu are making arguments pointing to the fact that, at some point in the future, we may very well find ourselves roaming around a completely different Internet. Issues such as blockage, data management and propriety content are of great concern to those advocating Internet freedom. Already in Canada, a society usually regarded as socially liberal by American standards, we find the case of Telus Telecommunications blocking access to labor organization sites that were in dispute with the company from their customers. Is it the case, perhaps, that the days of the much trumpeted social network utopia of the Internet have already reached their zenith? Are we to go nowhere but down from here? The fear is real and the crisis is eminent.

To understand the full spectrum of the Net Neutrality debate it is imperative to take a number of perspectives in terms of analysis and critique. While, for the most part, issues of Net Neutrality deal with corporate control over the physical network structure (what is referred to by many as “the tubes�) and their subsequent desire to tier service for the sake of maximizing profit

Festa 2 and recouping wasted bandwidth, it is also of grave importance to come to a theoretical conceptualization of the Internet in terms of its sociopolitical and cultural facets. It is, at once, a series of wires and a social community. Issues of free speech and expression, trans-national communication and the new era of empowerment given to activist organizations and marginalized portions of the population through the digital realm can not be ignored. As the Internet is believed to be the most democratic communication tool the global community has at its disposal, proponents of Internet sovereignty are being instigated by the very thought of legislative regulation and corporate control over the technological apparatus.

At the current point in history, our boat is floating on the high water mark of Internet freedom. The boom in social participation and the exponential growth of “born digital” information characterized by the Internet renaissance period known as Web2.0 gives clear evidence of digital media’s utility. A human society which has historically come to know the world through the one-way channeling of broadcast media is now finding its own means to print, publish and disseminate information to the masses. Blogging, social network tools, active information indexing and the opportunity for co-operative and collective effort in terms of political and social activism have lead to a cataclysmic change in terms of social interactions and the realm of the public sphere. While, historically speaking, the idea of “mass media” may have been that of a collective conscience built from a top-down communication apparatus, today we are finding that such a term may mean quite the opposite. The idea of “mass media” in contemporary society now points to the democratic participation of individuals in forming, shaping, validating and disseminating information in a multi-dimensional space. Nonetheless, it must not be forgotten that the digital netherworld of the Internet is still governed by forces that lie outside of “the tubes.”

What follows in this report is an attempt at crystallizing the Net Neutrality debate, a coming to an understanding of the varying viewpoints in terms of how to maintain Internet freedom and a critique of the issue as a broad conceptual spectrum. It is imperative to have a

Festa 3 firm understanding of the intricate weaving of threads that make up the fabric of this current hot bed issue. Issues of technology, the telecommunication marketplace, legislative efforts and actions, democratic free speech, and socioeconomic and cultural influence will be discussed for the sake of painting an accurate portrait of the Net Neutrality debate. What seems to be a cut and dry issue on the surface level will be revealed to be an intricate intertwining of disparaging streams of thought that make for shaky tectonic landscape.

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Technology and the Marketplace: A Battleground.

The Internet is a network of networks, owned and operated by a mixture of public and private entities that voluntarily share open-network protocols. It provides a relatively affordable, open, and equitable communication environment.1

Net Neutrality has become an issue of great concern for multiple parties in the social sphere. Individual consumers, technology and software producers, telecommunication companies, digital service organizations and the legislative body have all become involved in the debate over “the tubes�. This ideological quagmire is due in part to the different stakes each player holds in the war for the Internet. One the one hand, the Internet can be conceptualized as nothing more than glorified phone lines linked to computer systems (a stance that the telecommunications company camp will take). If we are to look at the Internet through this lens we find underneath our gaze a technological labyrinth of fiber optic corridors, filtered gateways, and crosswired intersections. The digital superhighway, much like the physical interstate system, is an architecture for the movement from one point to another.

As telecommunication companies have watched the Internet boom into an integral part of life, much fear and trepidation has come about due to the inherent conflict the new media has with the old. Currently, small and independent businesses are blossoming into market giants through the utilization of the Internet. Google, which was started by two young Computer Science students at Stanford, has become, seemingly overnight, a monolithic adversary to the traditional telecommunication market players and one of the chief contenders for the Microsoft crown. Voice over Internet Protocol (VoIP) telephone providers, such as Vonage, have started to undercut land-line telecommunication company profits (ironically enough, the same companies that are providing the access to the Internet). Old guard market prizefighters are finding themselves inside a new ring with young and energetic underdogs. There is a

Festa 5 fundamental air of fear and anger in the glass towers of telecommunication corporations over these young entrepreneurs’ utility and creative endeavor. The fight is as much about wires and hardware as it is about freedom of speech and expression. As AT&T CEO Ed Whitacre states, “Now what they [Google, Vonage, etc.] would like to do is use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it.”2 Due to the overwhelming need for arbitration between the general public, telecommunication corporations and Internet service organizations (Google, Wikipedia, etc.) the Federal Government has had its hand forced into the matter. In the past year alone there have already been two committee hearings in regards to Net Neutrality.3 The issue becomes sticky when all sides are heard from for the sake of making some form of policy that allows telecommunication companies to benefit as ISPs while maintaining a free and nondiscriminatory access system. The Federal Government has stated that the democratic nature of the Internet and its identity as an idea fostering environment is something to be upheld as it has been a large part of it from the very beginning. As Utah Representative Chris Cannon states, “The continued success of the Internet depends on unfettered interconnection and the ability of consumers to connect and access online information, content, goods, and services in a nondiscriminatory manner.”4 A growing fear among citizens and Internet Service Organizations deals with the nature of the beast in terms of regulation and corporate domination. As regulation of the communication industry has illustrated that, for the most part, corporate interests are placed ahead of consumer safety and freedom, there exists a lingering doubt that any approach to keeping the Internet “as-is” through either marketplace competition or legislative action will lead to the same dead end: an Internet controlled by owners of the infrastructure rather than participators in the cultivation of the landscape. If the stakes of rival business organizations makes the Net Neutrality issue seem difficult to get a grip on, factoring in the sociopolitical implications it has for a burgeoning democratic society makes the problem even more difficult.

Festa 6 This of course, is all spoken of in terms of its national consequence. The Internet, by its very nature, is a transnational communication medium that extends beyond time, space and borders and allows for the collective gathering of individuals from a multitude of geographical locations.

While, on the one hand, we may be speaking of nothing but routers and fiber optic wire, on the other we are placing an emphasis on the Internet as a social mediator and tool for democratic speech. While issues of blockage and censorship are only starting to emerge in America,5 internationally such actions are well documented as in the cases of France and China. Perhaps, the wave of fear and activity that has swelled due to the issue of Net Neutrality extends not only from the aspect of Corporate profiteering, but more importantly, is based in the activist tradition of combating totalitarianism and the threats to democracy. What we find in the Net Neutrality debate is more than just another example of the American people screaming “hands off” to government and big business. In Net Neutrality, as a broad conceptual diamond looked at from varying view points, we seem to the find the seeds for a new, technologically based culture war of vast proportions and an unknown outcome.

What poses a great problem in terms of Internet freedom is the fact that what we see as the Internet (i.e. the pages that flash across our screen and the services they offer) is inexplicably tied to an infrastructure of physical parts that is in fact real property to a group of holders. While users of the Internet and Internet Service Organizations use the infrastructure for their own particular reasons, the fact that there are telecommunication companies who own the physical wires and networking apparatuses can not be overlooked. While the Internet is trumpeted as a communication and information device and allowing corporate control to reign over it would have detrimental effects on free speech and information access, it can not be argued that a set of companies have laid a substantial sum of money into the physical network development and, being entities in a capitalist society, will want to see return on what they have paid out.

For the most part, ISP telecommunication companies have been looking at pushing a “quality of service” approach to Internet access. Services would then be offered at a tiered

Festa 7 level where the amount one pays would coincide with a certain bandwidth allowance.

Individuals would be required to pay more for faster streaming of data over the wires to their personal computer. The more one pays, the faster information would be retrieved and loaded.

Already, the consumer market is being targeted as a realm for potential profiteering in regards to access. The telecommunication industries most powerful weapon for the implementation of such actions seems to be embedded within the network structure itself. A number of “choke points” exist within the physical network (i.e. “the tubes”) that would allow telecommunication companies to have an unprecedented amount of control in regards to tailoring access, controlling data flow, and outright blocking information. A physical description of a simplified network makeup can be found below in illustration 1.

Illustration 1: A Simplified Broadband Network Infrastructure.6

What is slightly less known is the fact that such tiering of service would also be applied to Internet Service organizations such as Google, Yahoo! and any other information provider on the Internet. William Smith of BellSouth had already called for a “pay for performance” marketplace where information providers could have their content “pushed to the top” by the ISP for higher prices.7 Fundamentally, such an approach would change the level playing field we see now in

Festa 8 terms of the Internet and would allow organizations with deep pockets to have a larger broadcast spectrum over the web.

What makes this all possible is the fact that large telecommunication companies already have ownership of the network itself. Network operators are put in a position that allows them to easily identify where information is coming from and where it is going and can slow down data movement, stop it, or move it to the front or back of the line.8 By building in a ‘pay to play’ statute into the user agreement, telecommunication organizations would inherently be allowed to choose what data is sent to you based upon how much an information service organization is willing to pay and would then, based upon how much a user pays, could up or down the loading time on anything one wished to access. While proponents of Net Neutrality have been battling for so-called “end-to-end” connecting, it seems that the telecommunication community would like to see such access have a doubled up toll booth approach: you pay to get on the bridge and you pay to get off it.

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The Role of Legislation.

There's clear incentive there for those who have the economic interests to discriminate. That's why it's necessary to ensure that there's a level playing field and you have to do that legislatively.9

In recent years the Federal Government has been forced to step into the debate over Net Neutrality. The noise being made on both ends, from Net activists and Telecommunication companies, has been so loud that regulation and legislation is starting to be believed to be the only way to calm the storm. In February of 2006 the Senate Committee on Commerce, Science, and Transportation held a hearing on Net Neutrality. Witnesses at the hearing included members of Internet Service organizations (such as Google and Vonage), Federal Institutes, Telecommunication company representatives and distinguished members of the law community, Lawrence Lessig being one among them.

In general, the consensus of our legislative representatives seems to be in favor of keeping the Internet as open, democratic, and free as possible. As Senator Daniel K. Inouye states, “According to recent press reports, network operators are planning to charge application providers additional fees for access to their broadband networks. This is ample cause for concern.”10 Already representatives of the community are seeing the implications “quality of service” approaches to Internet access could have on its innovation and evolution.

Lawrence Lessig himself has stated that the possibility for fast and economical access to the Internet exists in America by pointing to France and noting that citizen’s have access to the Internet at $1.80 per megabit, roughly 11 times less in price than anything offered by Verizon in the United States.11 While the idea of legislation to keep the Internet open may sound tantalizing on its first few notes, there exists an overwhelming amount of debate in terms of actual regulation

Festa 10 implementation. For the first part, legislators are at a loss as what to actually do to keep telecommunication companies under control. As Mr. Cannon has stated, “Principles of net neutrality have been successfully articulated, but the mechanism to enforce them has not”. 12 While some have already been hit with fines by the FCC for blocking access to application providers (such as in the case of Madison River Telecommunications and Vonage) it has been noted that the FCC has been able to do very little in terms of being a watchdog over the telecommunication community in regards to making sure they “play by the rules”. In addition, historically speaking, the FCC has at times made regulatory changes that have actually weakened consumer rights, such as in the case of wireless network billing with cellular phone use.13 While legislatures and Internet freedom activists have been pushing for governmental methods to curb misconduct by telecommunication organizations, a number of consumer and activist groups have come out against government involvement in keeping the Internet open.

Most notably Hands Off the Internet, an anti-legislation movement (whose affiliate member organizations include, ironically enough, Cingular Wireless and Cinergy Communications), has been offering up statistics and links to pertinent articles to battle against legislative efforts.14 The argument is being made that proponents of Net Neutrality will be, in fact, causing an opposite outcome than what they claim to be pushing for. A number of individuals, including TCP and IP inventor Bob Kahn (noted by some to be the “father of the Internet”), have come out saying that legislative regulation of the Internet will freeze innovation and keep it from moving forward.15 Individuals from this particular camp are claiming to be “Net Neutrality oriented” by pointing out that Net Neutrality would require a governmental hands-off approach.

The issue of Net Neutrality then becomes very blurry when the disparaging views are taken into account. On the one hand, there are a number of individuals claiming to be pro-Net Neutrality and anti-legislation while on the other there are groups who call for legislation as the only means for protecting Net Neutrality. When looking at the issue broadly and taking into

Festa 11 account all the facets and arguments, is it no surprise that Congress is finding difficulty with coming to some consensus on what to do. If they do nothing, consumer and application producer’s rights are at stake. If they do something, telecommunication companies and the possibility for innovation can be harmed. What comes from this is an ideological cold war in terms of Internet control. We find in Net Neutrality the stakes and claims of both the owners of the network infrastructure and the users and suppliers of the services piped through it coming head to head in terms of how the virtual world should be governed.

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Cultural Implications: A Conclusion.

Computer-mediated communication also extends the forum, by providing a new unbounded space for communicative interaction. Buts its innovate potential lies not just in its speed and scale but also with in new form of address or interaction: as a many-to-many mode of communication, it has radically lowered the costs of interaction with an indefinite and potentially large audience, especially with regard to adopting the speaker role without the costs of the mass media.16

What seems to be of even greater importance to the Net Neutrality community is the capacity for, either from State or Corporate entities, there being a push towards censorship and a chilling of freedom of speech. No matter who controls the network infrastructure, be it government agency or corporate entity, the holder of the scepter wields an enormous degree of power. The ability to censor speech, promote propaganda, and skew information is a plausible reality when “ownership� of the Internet is looked at. Currently, Net Neutrality advocates have been up in arms over any possible encroachment on speech rights, so much so that simple technological glitches causing interruptions to access have been blown out of proportion as intentional censorship (as was the case with the Craig’s List and Cox Communication fiasco of 2006). Telus Telecommunications of Canada has already been targeted for such actions as it blocked access to pro-Union websites when it was in the middle of a heated labor dispute. On the governmental end, France and China have been notorious for blocking citizen access to content the government has deemed inappropriate. While all of these examples come from outside the United States, they all speak to the fact that fears of censorship, banning, and blockage are very real and very much alive on the Internet.

The issue of Net Neutrality and censorship, I would argue, goes even deeper and further than just encroachment upon First Amendment rights. Net Neutrality, on the one hand being a battle over fiber optic wires and their potential profits, has deep social and cultural implications.

Festa 13 The Internet, in its current state, is an almost perfect democratic speech world; small blogs and large corporate media outlets can both be easily accessed and the ability for all individuals to make commentary, voice opinions, and object to statements is level and equal. With the rise of the digital world, once silenced voices are finding a new means for amplifying their speech.

Such tools for message dissemination did not exist 20 years ago. For the most part, social and political activist movements have been using the Internet as a way to communicate their messages, consolidate their resources, and share information. While Net Neutrality would have an impact on everyone from the young student checking his or her MySpace in the library to the grandmother sending e-cards to beloved grandchildren on their birthdays, the social and political activist sect of the American population has the most at stake in terms of lose of rights.

Just this week (the nature of Internet fluidity and perpetual change making such a critique and examination such as this one a difficult task) the Internet blogging community has been screaming about Republican candidate Ron Paul being locked out of MSNBC election coverage online and even MySpace blockage of supporters’ profiles (let us not forget that Fox News mogul Rupert Murdoch, a person notorious for mixing his politics with his business, is now the owner of the popular social networking site).17 A recent cease and desist order handed over to Digg.com in regards to publishing links to the newly hacked HD-DVD encryption code (the now infamous 09-F9-11-02-9D-74-E3-5B-D8-41-56-C5-63-56-88-C0 string) has spurred as much debate about freedom of speech as it has about patent and copyright. Digg has even gone as far as outwardly saying that it will not block access to sites publishing the code due to freedom of speech issues and made claims that it would rather go down fighting than concede to the powers that be (this is, of course, after the site bowed to authorities but then lost credibility with its user base and lost a number of customers to rival Reddit).

I would contend that in the Net Neutrality debate we find embedded a new form of culture war. Much as there exists a fundamental battle between mainstream and progressive views of law, there too exists a battle between conservative and liberal parties in terms of

Festa 14 Internet regulation and neutrality. While, for the most part, those who want the legislature to keep their hands off the Internet are fundamentally unafraid of corporate domination of the wires, small businesses, social activists, and participatory democracy advocates are calling for government intervention to protect the only communication medium in existence that levels the playing field in terms of broadcast capabilities. With the Internet, and particularly with the recent developments and innovations that have come with what has been coined Web2.0, members of society that have been historically relegated to the role of the consumer have now been empowered with the ability to become the publisher: the viewer has become the broadcaster, the reader has become the writer.

The Internet, being more than just a set of wires and computer modules, has lead to a fundamental shift in the power paradigm. While media communication was historically a topdown system, the ability to actively engage in discourse and dialogue have led to a shift in social, national, and even transnational communication practices. Fundamentally, the participatory nature of the Internet threatens old world notions of social reality. As the corporate media influence has historically had control of the means of production in terms of social and cultural mind shaping, the Internet poses an explicit threat to the established power structure and its control apparatus. While Net Neutrality, on one level, can be conceptualized as an attack on consumer rights and freedom of speech, it can, when closely read and deeply analyzed, be understood as an attack on cultural and social evolution. Leaving the shaping of the Internet to the marketplace economy invites corporate domination and control of technological architecture. Allowing legislative regulation and shaping of the digital landscape puts the Internet in the hands of the government and brings with it the potential for political speech censorship. Taking a hands off approach only brings us back to square one, allowing the telecommunication companies free range in terms of shaping and controlling access and information flow. When taking into account all the facets of the Net Neutrality debate, it seems as if our boat is shakily trying to navigate between the whirlpool and the sirens. At the present

Festa 15 time it seems that we have a wolf before us and a precipice at our backs (as the Latin phrase goes, a fronte praecipitium a tergo lupi). In trying to formulate a hypothesis in regards to how we could best approach the Net Neutrality issue, it seems that we have come to create for ourselves a quagmire of epic proportions. While articulating the issues and explaining the dilemma is something that can and has been accomplished, finding an efficient, effective, and ideal methodology for formulating policy escapes our grasp. When all is said and done, it seems that at the present moment we are living in the golden age of the Internet. With time, the freedoms taken for granted and the boom of participatory political and social action that is flourishing in the digital public sphere has the potential to dwindle away right before our eyes.

The threat is real and the risk is high. What we hold in our hands today is slipping through the cracks between our fingers like grains of sand. What shape will the Internet take in the months and years to come? No one is sure. What can be said, however, is that the digital landscape we have become accustomed to will surely change and evolve into a different world than what it is at the present moment. Only with time and patience will we come to find what our new virtual environment will be.

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Endnotes.

1

Stein, L. (2006). Speech Rights in America. Chicago: University of Illinois Press. 81.

O’Connell,P. (2005, November 7). At SBC, It’s all about “Scale and Scope”. Business Week Online. Retrieved May 2, 2007 from http://www.businessweek.com/@@n34h*IUQu7KtOwgA/ magazine/content/05_45/b3958092.htm.

2

On February 7th 2006 the Committee on Commerce, Science and Transportation held its hearing entitled “Net Neutrality” and, only two months, later on April 25th 2006 the Committee on the Judiciary held its hearing entitled “Net Neutrality: Competition, Innovation, and Nondiscriminatory Access”.

3

Task Force on Telecom and Antitrust of the Committee on the Judiciary. (2006). Net Neutrality: Competition Innovation, and Nondiscriminatory Access. (Serial No. 109-109) Washington, DC: U.S. Government Printing Office. 2.

4

Current hot topics include the Digg.com fiasco involving the publication of the HD-DVD encryption code and the subsequent actions taken by the film industry to silence the noise as well as political speech in terms of supporters of Republican candidate Ron Paul claiming that both MSNBC and Myspace.com have been blocking exposure to accurate campaign information as well as supportive dialogue.

5

6

Task Force on Telecom and Antitrust of the Committee on the Judiciary. 46.

Krim, J. (2005, December 1). Executive wants to Charge for Web Speed. Washington Post Online. Retrieved May 2, 2007 from http://www.washingtonpost.com/wpdyn/content/article/2005/11/30/AR2005113002109.html.

7

8

Ibid.

Canadian Broadcasting Corporation. (2006, November 3). Battle for “Net Neutrality” arrives in Canada and can forever alter Internet. Retrieved May 2, 2007 from http://www.cbc.ca/consumer/story/2006/11/02/tech-neutrality.html.

9

Committee on Commerce, Science and Transportation. (2006). Net Neutrality. (S. Hrg. No. 109605). Washington D.C.: U.S. Government Printing Office. 77.

10

11

Ibid. 53.

12

Task Force on Telecom and Antitrust of the Committee on the Judiciary. 11.

13

Ibid. 78.

14

Hands Off the Internet. (n.d.) Retrieved May 2, 2007 from http://www.handsoff.org/blog/.

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Orlowski, A. (2007, January 18). Father of the Internet warns against Net Neutrality. The Register.

Retrieved on May 2, 2007 from http://www.theregister.com/2007/01/18/kahn_net_neutrality_warning/ 15

Crossley, J. and Roberts, J. (Eds.) (2004). After Habermas: New Perspectives on the Public Sphere. Oxford: Blackwell Publishing. 134.

16

In recent days stories regarding these two topics have been at the top of the list on the Internet social headline site www.reddit.com. While censorship and encroachment on Internet freedom of speech seemed to be something far in the distance, recent events are proving otherwise and pointing to the fact that the First Amendment is already under attack in this critical pre-election moment in time.

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