The Future of Net Neutrality: YLPR Symposium Issue
I recently contributed to the Yale Law and Policy Review’s Inter Alia symposium on Net Neutrality, along with Susan Crawford, Dawn Nunziato, and Jonathan Zittrain. The Inter Alia editor, Christopher Suarez, has kindly allowed me to post his account of the symposium below:
As the FCC decides net neutrality rules, the Yale Law and Policy Review has released a symposium on net neutrality in its new online companion, Inter Alia.
The symposium considered various ways to frame the ongoing debate. Dawn Nunziato begins the conversation in The First Amendment Issue of Our Time by outlining the basic contours of the debate from a traditional economic frame. She argues that broadband providers should be regulated much like common carriers. Thus, both wireline and wireless providers should both be subject to nondiscrimination mandates with respect to all content. To the extent that such providers adopt specialized services–for example, a service focused on medical information–regulators should consider applying principles of public forum doctrine, which would allow providers to limit traffic to particular subjects or purposes for which the services are designed. Beyond those special circumstances, however, the internet should remain open and free.
Jonathan Zittrain then asks us to reorient our perspectives on net neutrality is his piece, Net Neutrality as Diplomacy. Instead of framing net neutrality debates in terms of economic efficiency and market choices, Zittrain argues that we should refocus the debate in a diplomatic frame. As individuals secure more and more outposts on the internet–through Twitter, Facebook, Picasa, and Quicken, for example–the internet increasingly becomes an extension of our identities. These outposts are analogous to diplomatic outposts, which serve as extenions of a particular country’s homeland. Thus, like diplomats who are free to travel between international outposts with the protection of la valise diplomatique–or the diplomatic pouch–packets of information that travel on the internet should, in this frame, receive similar protection.
In Search, Speech, and Secrecy: Corporate Strategies for Inverting Net Neutrality Debates, Frank Pasquale cautions against broad deference to corporate entities that may disguise their efforts to control data flows online. He fears that ISPs will use trade secret law and other legal tools to shield the underlying architectures of the internet from scrutiny. Infrastructural architectures–including those that govern search results–have a significant bearing on how all of us perceive information flows on the internet. He urges us to consider broader oversight of Internet companies that control these information flows–such as through offices that record, analyze, and scrutinize their practices.
Susan Crawford, finally, reminds us that net neutrality may be the least of our worries in The Looming Cable Monopoly. Given the limited deployment of fiber in the United States and our heavy reliance on cable broadband, a vast majority of internet users in this country will depend entirely on cable companies for their broadband. In such a world, net neutrality almost seems irrelevant. Instead of focusing primarily on net neutrality regulation, she appears to suggest that regulatory energies should be focused on busting the looming monopoly.
For more information on Inter Alia and links to all of these net neutrality symposium pieces, please visit http://www.yalelawandpolicy.org/interalia.