Just over a week ago, a federal appeals court handed down a decision that may radically alter the relationship between Americans and the Internet. Since 2004, in an effort to uphold the ideal of net neutrality, the FCC has enforced non-discriminatory practices among Internet service providers (ISPs), forcing equal treatment of all traffic. However, with the court’s decision in Verizon v. Federal Communications Commission to gut net neutrality (at least temporarily), equality on the web is no longer legally guaranteed. Companies are now free to give preferential treatment to certain sites and thereby financially assert more control over the content their customers can access.
Few things tickle my libertarian fancies more than deregulation, and some have tried to cast the recent appeals court decision in those terms: the defeat of big government trying to impose populist ideals on business. After all, consumers have the right of choice, and if preferential treatment of content providers and a reflective fee structure is unacceptable, they can choose to use a different carrier. As reluctant as I am to defend big government, this treatment is an obfuscation of the facts, and the court’s decision demonstrates an inherent misunderstanding of the importance of an open web in an increasingly interconnected world.
In the modern world, the Internet is more than a series of tubes that delivers cat videos and enables folks worldwide to collaboratively slay dragons online. I don’t think I’m exaggerating when I say that the net is the 21st century equivalent of the Library of Alexandria, the Athenian Agora, and the Parisian Salon combined. Yet despite its importance, between SOPA, revelations of NSA espionage, and the inordinately heavy-handed persecution of Aaron Swartz (a subject of which the Institute has washed its less-than-clean hands quite vigorously), it hasn’t been a good couple of years for the open Internet. These incidents, however, portend a state of affairs grimmer than unreasonably restrictive access to JSTOR articles or unilaterally accountable piracy probes; they are indicative of an enormous threat by several corporations to what should be recognized to be as crucial to democracy as libraries or newspapers.
First, I want to tackle the natural elephant in the room that always accompanies talks about economic freedom: choice. Ordinarily, I’d be inclined to say that competitive markets need no regulation. But Internet service providers do not exist in a competitive market. The realities of telecommunications infrastructure reinforce oligopoly; only a few, very large companies can afford to deal with the regulatory nonsense (with ample use of lobbyists), and as a consequence, internet service providers are few and far between. Speaking naïvely, this alone shouldn’t stifle competition. If I find the terms of Time Warner’s service offerings unacceptable, I can still switch to Comcast!
Unfortunately, for many Americans, choice in ISPs is purely illusory. Municipalities and neighborhoods are carved up between the big carriers, and as a result, if my family wants Internet, they must submit whatever Charter deems acceptable. When it comes to the Internet, there is none of the sort of constant negotiation and renegotiation between service providers and customers necessary for well-lubricated capitalism. I don’t mean to sound Marxist, but the common man truly is held hostage by the cable company capitalist.
Thanks to the appeals court’s decision, the oligopoly of Internet service providers is now more gravely empowered to effectively price-out content providers as corporations see fit. If you will indulge me in a hypothetical, suppose Comcast determines that some news outlet is giving them too much bad press. Now, the company can decide to charge punitively high rates to carry the service, effectively silencing dissenters. Without the infrastructural friction inherent to utilities, there’d be no problem; customers could simply switch to see the content if they so chose. But woe be to the consumer whose home lies only in the coverage zone for Comcast! For her, this act of corporate censorship would be absolute and final; she would have no recourse and no choice.
Think I am waxing paranoid? Consider the damning effect on record sales that inevitably results should Wal-Mart refuse to sell a CD because the chain and its hypocritically religious owners find the content objectionable. Corporate censorship has real effects, but I’m not about to suggest that any store be compelled to sell goods against its wishes. Still, the combination of extraordinary oligopoly among Internet service providers and the extraordinary character of the net in the modern republic merits extraordinary regulation of the web.
As a regular patron of Hayden and a writer for The Tech, it pains me to admit that the physically written word is on its deathbed. Newspapers and books have been supplanted not by the skeuomorphic e-reader, but by the Internet. And in most ways, the net is a superior conduit for a more democratic discourse — no longer is there the sort of capital requirement for the publication of literature or diatribe that so plagued would-be novelists or revolutionaries under the realities of the publishing industry. I previously compared the Internet to the Agora; in fact, it places a line direct to the hill without even the inconvenience of leaving our homes. The web is a boon to the free exchange of ideas and words and must be recognized by the courts and legislature as such, lest we lose our liberty to a few businessmen concerned more with profits than the wellbeing of a great, interconnected democracy. The times are changing, and we cannot submit to corporate tyranny disguised as beneficent stewardship. We cannot excuse oligopoly of the same trespasses we would find so objectionable should the government instead pull the strings. We cannot allow our American pride in the free market to blind us to what amounts to an unwieldy check on our rights to free speech and free assembly online.