By Chris Witteman
In Internet time, things change fast. Google is moving into television. WikiLeaks is changing the paradigm of international relations. Newspapers, movies, radio and TV are all available on handheld devices. And the FCC is poised to act on far-reaching rules of the road for the Internet. Four new books offer different maps of this territory from different angles, none capturing completely the thin line we tread between information utopia and a preprogrammed cultural dystopia.
One book, Internet Architecture and Innovation, is by Stanford’s resident expert at the intersection of engineering, economics, and law, Barbara van Schewick, and it looks at these issues in a business context. Van Schewick compares how open and closed systems impact innovation in the electronic space. Her book is crammed with information, making the footnotes sometimes more interesting than the text, which is dense and often delivered at a level of abstraction that makes it almost unreadable.
Nonetheless, Internet Architecture and Innovation is an important work: it supplies a key piece of the broadband puzzle in its consideration of broadband transport as a necessary input for other businesses. Just like the railroads in the time of Hiram Johnson, broadband increasingly occupies a bottleneck position, giving network operators an inbred advantage in a horde of ancillary businesses. This can be particularly devastating for entrepreneurs who hope to take the broadband input and make something new out of it (think Google, Wikipedia, Facebook). Van Schewick’s fundamental premise rings true: only neutral networks promote competition and innovation.
Tim Wu’s The Master Switch is the most accessible and far-reaching of the four. He describes “information empires” from the early telephone network to succeeding radio, motion picture, cable television, and Internet media. In each, he traces what he calls “The Cycle,” a progression “from somebody’s hobby to somebody’s industry,” from a freely accessible channel to one controlled by a single corporation or cartel, from open to closed systems. In each of these industries, Wu looks for the “master switch,” the bottlenecks and industry structures that determines who gets heard.
The deeper problem with Wu’s book is that it does not look to what we’ve always assumed is the organizing principle for speech in this country, the First Amendment. Wu himself has an explanation for this: “the shape or even existence of any [free speech] marketplace depends less on our abstract values [read First Amendment] than on the structure of the communications and culture industries.” In other words, it is facts on the ground that determine who gets to speak, and what information is available.
The deeper problem is that the First Amendment is empirically blind. It is oblivious to speech and information bottlenecks. It is not in fact a “free speech” guarantee, but a limitation on government. The Supreme Court focuses more on the “no law” than the “freedom of speech” parts of “Congress shall make no law... abridging the freedom of speech.” While “no law’s” concern about state censorship is certainly well-taken, it is only half the story. It hobbles any government attempt to act against private censorship. (Indeed, corporations have discovered the First Amendment as a useful argument against many types of government regulation, from consumer disclosures to campaign finance.) In an ironic turn of events, the First Amendment is used against speech.
In the current net neutrality debate, for example, AT&T, Verizon, Comcast and other network operators have claimed they have a First Amendment right to control communications on “their” networks. It takes a moment for the stunning breadth of this assertion to sink in: if the network owners succeed in this claim, there will be only handful of fully vested First Amendment speakers in the country, and the rest of us will speak and receive information only to the extent that the network owners allow.
A book that describes the background of this “negative” interpretation of the First Amendment, such as DawnNunziato’s Virtual Freedom—Net Neutrality and Free Speech in the Internet Age, is thus especially timely. Ms. Nunziato patiently takes us through some of the disasters of recent free speech jurisprudence, culminating in the Brand X decision that turned the control of broadband networks, which had operated under traditional common carrier regulation, back to the network owners.
Virtual Freedom also proposes solutions: expanded public forum and state action doctrines, giving the First Amendment a broader reach, and particularly a reinvigoration of the common carrier concept abandoned in the first half of the last decade. The 2009 publication date for Virtual Freedom explains why it does not report the most recent news from this front: a Circuit Court’s voiding of the FCC’s net neutrality rules precisely because they were not founded on the common carrier statutes, and the final blow for the “negative” First Amendment, the Supreme Court’s recent rejection of campaign finance rules in the Citizens United case (deciding that corporations were full First Amendment speakers).
All of a sudden, what seemed fanciful has become factual: in recent filings with the FCC, the large telcos and cable companies have argued that any regulation of the transportation element of the Internet would violate their First Amendment rights. Thus the telcos are following in the path trod by cable TV operators who have argued (with more success than not) that they were First Amendment “editors” and thus able to keep an iron lock on programming.
A final book, Lee Bollinger’s Uninhibited, Robust, and Wide-Open, brings us back to the constitutional focus, painted with the broad strokes and plummy tones of a professor emeritus (Bollinger is in fact President of Columbia). Uninhibited takes us through some of the same territory as Nunziato’s Virtual Freedom, but from 50,000 feet in the air, seldom dirtying its hands with the messy empirical realities that Wu, Nunziato, and Van Schewick all address in their fashion. This same distance, however, allows Bollinger to bring in global aspects of the problem, and to resurrect long-forgotten chapters in our own free speech history. He quotes the Hutchings Commission Report on Freedom of the Press speaking of the impact of radio and news media consolidation in the 1940s, in terms that might be applied to the Internet today:
We have the impression that the American people do not realize what has happened to them. They are not aware that the communications revolution has occurred. They do not appreciate the tremendous power which the new instruments and the new organization of the press place in the hands of few men.
While the millions of Americans sending e-mails and logging onto Facebook are surely aware that something new is at hand, they have little idea how this technology is being brought to them. Bollinger himself appears unaware of the dimensions of the revolution now occurring in the Internet space. He writes, perhaps not intentionally, from the framework of the print vs. broadcasting battles of the 1960s and '70s (he discloses that he is a director of the Washington Post Co.), and not the arcane legal battles of today (telecommunications vs. information service, anyone?).
None of us fully understands how the new Gutenberg revolution will play out, but Bollinger nonetheless weakly acknowledges that the First Amendment of the 21st Century must address this phenomenon. Yet he misses the essential detail: how print, broadcasting, telephone and cable, facilitated by the lingua franca of Internet Protocol (IP), are all converging onto one all-purpose network, giving the owners of that network enormous power. The question for the 21st century is how a purely “negative” First Amendment can control that power, and keep the handful of network owners from censoring (channeling, slowing, distorting) the speech of the millions who use those networks. Here, Wu and Nunziato and Van Schewick are closer to the actual problem, and perhaps to the solution.
These questions take on immediate import given that the FCC is scheduled to announce tomorrow a rulemaking that will decide whether the Internet remains based on the open common carrier model of the phone system, or the closed model of cable television. Will the FCC allow the Internet to become an entertainment delivery vehicle like cable, or will it require network owners to keep their hands off of content, a separation for which Wu argues explicitly (and which is a tacit premise of the Nunziato and Van Schewick books as well).
FCC Chairman Genachowski’s recent public statements do not offer much hope for such a bright-line solution. The really chilling thing here is the historical parallels described by Wu—how, for example, the FCC has in the past sided with industry in taking a formerly open medium like early radio, and closing it for the benefit of the incumbent carriers. Déjà vu all over again?
In Internet time, things change fast. Google is moving into television. WikiLeaks is changing the paradigm of international relations. Newspapers, movies, radio and TV are all available on handheld devices. And the FCC is poised to act on far-reaching rules of the road for the Internet. Four new books offer different maps of this territory from different angles, none capturing completely the thin line we tread between information utopia and a preprogrammed cultural dystopia.
One book, Internet Architecture and Innovation, is by Stanford’s resident expert at the intersection of engineering, economics, and law, Barbara van Schewick, and it looks at these issues in a business context. Van Schewick compares how open and closed systems impact innovation in the electronic space. Her book is crammed with information, making the footnotes sometimes more interesting than the text, which is dense and often delivered at a level of abstraction that makes it almost unreadable.
Nonetheless, Internet Architecture and Innovation is an important work: it supplies a key piece of the broadband puzzle in its consideration of broadband transport as a necessary input for other businesses. Just like the railroads in the time of Hiram Johnson, broadband increasingly occupies a bottleneck position, giving network operators an inbred advantage in a horde of ancillary businesses. This can be particularly devastating for entrepreneurs who hope to take the broadband input and make something new out of it (think Google, Wikipedia, Facebook). Van Schewick’s fundamental premise rings true: only neutral networks promote competition and innovation.
Tim Wu’s The Master Switch is the most accessible and far-reaching of the four. He describes “information empires” from the early telephone network to succeeding radio, motion picture, cable television, and Internet media. In each, he traces what he calls “The Cycle,” a progression “from somebody’s hobby to somebody’s industry,” from a freely accessible channel to one controlled by a single corporation or cartel, from open to closed systems. In each of these industries, Wu looks for the “master switch,” the bottlenecks and industry structures that determines who gets heard.
The deeper problem with Wu’s book is that it does not look to what we’ve always assumed is the organizing principle for speech in this country, the First Amendment. Wu himself has an explanation for this: “the shape or even existence of any [free speech] marketplace depends less on our abstract values [read First Amendment] than on the structure of the communications and culture industries.” In other words, it is facts on the ground that determine who gets to speak, and what information is available.
The deeper problem is that the First Amendment is empirically blind. It is oblivious to speech and information bottlenecks. It is not in fact a “free speech” guarantee, but a limitation on government. The Supreme Court focuses more on the “no law” than the “freedom of speech” parts of “Congress shall make no law... abridging the freedom of speech.” While “no law’s” concern about state censorship is certainly well-taken, it is only half the story. It hobbles any government attempt to act against private censorship. (Indeed, corporations have discovered the First Amendment as a useful argument against many types of government regulation, from consumer disclosures to campaign finance.) In an ironic turn of events, the First Amendment is used against speech.
In the current net neutrality debate, for example, AT&T, Verizon, Comcast and other network operators have claimed they have a First Amendment right to control communications on “their” networks. It takes a moment for the stunning breadth of this assertion to sink in: if the network owners succeed in this claim, there will be only handful of fully vested First Amendment speakers in the country, and the rest of us will speak and receive information only to the extent that the network owners allow.
A book that describes the background of this “negative” interpretation of the First Amendment, such as DawnNunziato’s Virtual Freedom—Net Neutrality and Free Speech in the Internet Age, is thus especially timely. Ms. Nunziato patiently takes us through some of the disasters of recent free speech jurisprudence, culminating in the Brand X decision that turned the control of broadband networks, which had operated under traditional common carrier regulation, back to the network owners.
Virtual Freedom also proposes solutions: expanded public forum and state action doctrines, giving the First Amendment a broader reach, and particularly a reinvigoration of the common carrier concept abandoned in the first half of the last decade. The 2009 publication date for Virtual Freedom explains why it does not report the most recent news from this front: a Circuit Court’s voiding of the FCC’s net neutrality rules precisely because they were not founded on the common carrier statutes, and the final blow for the “negative” First Amendment, the Supreme Court’s recent rejection of campaign finance rules in the Citizens United case (deciding that corporations were full First Amendment speakers).
All of a sudden, what seemed fanciful has become factual: in recent filings with the FCC, the large telcos and cable companies have argued that any regulation of the transportation element of the Internet would violate their First Amendment rights. Thus the telcos are following in the path trod by cable TV operators who have argued (with more success than not) that they were First Amendment “editors” and thus able to keep an iron lock on programming.
A final book, Lee Bollinger’s Uninhibited, Robust, and Wide-Open, brings us back to the constitutional focus, painted with the broad strokes and plummy tones of a professor emeritus (Bollinger is in fact President of Columbia). Uninhibited takes us through some of the same territory as Nunziato’s Virtual Freedom, but from 50,000 feet in the air, seldom dirtying its hands with the messy empirical realities that Wu, Nunziato, and Van Schewick all address in their fashion. This same distance, however, allows Bollinger to bring in global aspects of the problem, and to resurrect long-forgotten chapters in our own free speech history. He quotes the Hutchings Commission Report on Freedom of the Press speaking of the impact of radio and news media consolidation in the 1940s, in terms that might be applied to the Internet today:
We have the impression that the American people do not realize what has happened to them. They are not aware that the communications revolution has occurred. They do not appreciate the tremendous power which the new instruments and the new organization of the press place in the hands of few men.
While the millions of Americans sending e-mails and logging onto Facebook are surely aware that something new is at hand, they have little idea how this technology is being brought to them. Bollinger himself appears unaware of the dimensions of the revolution now occurring in the Internet space. He writes, perhaps not intentionally, from the framework of the print vs. broadcasting battles of the 1960s and '70s (he discloses that he is a director of the Washington Post Co.), and not the arcane legal battles of today (telecommunications vs. information service, anyone?).
None of us fully understands how the new Gutenberg revolution will play out, but Bollinger nonetheless weakly acknowledges that the First Amendment of the 21st Century must address this phenomenon. Yet he misses the essential detail: how print, broadcasting, telephone and cable, facilitated by the lingua franca of Internet Protocol (IP), are all converging onto one all-purpose network, giving the owners of that network enormous power. The question for the 21st century is how a purely “negative” First Amendment can control that power, and keep the handful of network owners from censoring (channeling, slowing, distorting) the speech of the millions who use those networks. Here, Wu and Nunziato and Van Schewick are closer to the actual problem, and perhaps to the solution.
These questions take on immediate import given that the FCC is scheduled to announce tomorrow a rulemaking that will decide whether the Internet remains based on the open common carrier model of the phone system, or the closed model of cable television. Will the FCC allow the Internet to become an entertainment delivery vehicle like cable, or will it require network owners to keep their hands off of content, a separation for which Wu argues explicitly (and which is a tacit premise of the Nunziato and Van Schewick books as well).
FCC Chairman Genachowski’s recent public statements do not offer much hope for such a bright-line solution. The really chilling thing here is the historical parallels described by Wu—how, for example, the FCC has in the past sided with industry in taking a formerly open medium like early radio, and closing it for the benefit of the incumbent carriers. Déjà vu all over again?
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