p2pnet - rss feed: Common carriage —
p2p news / p2pnet: Translating common carriage to the 21st century internet is difficult, because companies and regulators are getting used to cutting across the protocol stack. So much more of this will happen, of course, in the absence of any rules saying discrimination is unlawful, and it will take years to write any such rules.
"Transport" wants to do more discrimination so as to make money for itself, and so is demanding the right to be free to run its "own" network. Many people think we should create and enforce the norm of neutrality, thus ensuring that no applications or content or devices are ever discriminated against.
But applications want to discriminate too. Should email providers be forced to provide address portability? Should search engines be forced to reveal the algorithms that they use, so that they can be checked for fairness? No, you say, shocked. But shouldn’t they be treated as common carriers if the transport layer is? Where does the principle of nondiscrimination stop?
Can’t you imagine law enforcement requiring end-to-end encryption so that no discrimination could possibly occur (no packet inspection possible) but then saying that as a trade it will need the keys to all of this within two hours after any encryption scheme is released?
And what if the transport layer sees itself as a speaker - doesn’t it have First Amendment claims (however specious) about wanting to support its own video and gaming services that could tie us up in court for years?
What happened to all of the deep concerns about technical mandates that came out in the broadcast flag context? Do they just disappear at the lower layers? Are the lower layers incapable of innovation? Should they be fixed in one form? Wouldn’t it be better just to force access providers to be truthful about what they did, so that consumers could figure out what was going on and decide for themselves?
I am as committed to the ideal of the open internet as the next guy, and my dream is to have OneWebDay support that goal. But the mischief that can be done to our future (in so many unexpected ways) by insisting on statutory and regulatory definition of neutrality seems to outweigh the possible benefits of this path.
There is so much nonsense, so much horse-trading, between where we stand now and the glorious goal of neutrality. The sad fact is that Americans don’t mind vertical integration one bit, and the duopolists know that. Not only that, but price discrimination in a competitive market is actually a good thing. Now all we need is a competitive market.
I’d rather see a future that doesn’t depend on a "third pipe" but that includes broadband internet access that is neither cable nor DSL. I can imagine a network owned by its users, or by a cooperative, or subsidized by a large company that has no interest in controlling use of the network. Our devices will be doing most of the computation, so there will be no way to tell the difference between devices and routing. We’ll have network-aware applications, too.
This admittedly techno-determinist view fits with how the internet was supposed to work. Routing is not supposed to be centrally determined, and the idea of mesh networks pushes this even more to the edge - individual devices will make decisions about routing. As long as we don’t make this kind of broadband provision illegal (even by accident, by some casual legislative drafting), it will likely emerge in time.
As David Reed might say, we’re in a phase transition of sorts, and there are many people who want to force us into hierarchical and rigid solids. Stay liquid, and the outcome will be extremely positive - as humans, we’re good at being liquid.
Susan Crawford - Susan Crawford Blog
[Crawford is a cyberlaw and communications law professor in New York City. She’s working on OneWebDay, a global celebration of the internet, scheduled for September 22, 2006.]
November 14th, 2005 at 5:09 am
Excuse me — what did you say?