Libertarianism and Net Neutrality

“Net Neutrality regulations also call into question how obscenity and other objectionable content on the Internet is treated,” warned the letter. “Let’s be clear, all content is not equal and does not deserve equal treatment, but net neutrality prohibits broadband service providers from prioritizing content consumers want and preventing peddlers of child pornography from having unblocked access to every home Internet connection.”

The above is from a letter to Washington legislators on the subject of net neutrality as reported by BigGovernment’s Mike Flynn. What will amount to be one of the most important discussions in the modern free world of the United States will likely come down to fear-mongering. This is nothing new to the typical discussion when it comes to censorship. Regrettably the free peoples of the United States haven’t seen that much real freedom come out of any public discourse. I’m loathe to argue that nudity and sex should be as freely shown as it is in other countries (some European countries allow partial nudity on commonly watched, non-premium channels). In the United States, the religious right has managed to make much headway in censoring content in the last century and the conservative Supreme Court could very easily side along with them.

Net Neutrality on the consumer side means a lot of different things but one of the most superficial explanations is that it disallows internet providers the ability to decide what content will be accessible or inaccessible (or, at least, difficult to access) over their pipelines. Without net neutrality, a Comcast that has merged with NBC can decide to limit access to Fox websites, including news sites such as Fox News. You want to watch Glenn Beck on Fox News argue against net neutrality? Sorry, you can’t because Comcast disallows access to Fox News content. Good job, Beck: you marginalized yourself, you idiot. With government enforced Net Neutrality, Comcast cannot limit your access to this content because it cannot discriminate what flows through its pipelines—hence “Neutrality”.

Wikipedia defines the Net Neutrality principle as stating “that if a given user pays for a certain level of Internet access, and another user pays for the same level of access, that the two users should be able to connect to each other at the subscribed level of access.”

From Google’s public policy blog goes into a teeny bit more detail:

If all these different activities are acceptable in Google’s view, what should the broadband carriers not be allowed to do? The answer is those last-mile activities that would discriminate against certain Internet applications or content with an anticompetitive intent. These would include:

  • Levying surcharges on content providers that are not their retail customers;
  • Prioritizing data packet delivery based on the ownership or affiliation (the who) of the content, or the source or destination (the what) of the content; or
  • Building a new "fast lane" online that consigns Internet content and applications to a relatively slow, bandwidth-starved portion of the broadband connection.

netneutrality2

The top quote on net neutrality is a very plausible way to look at the potential discourse on the subject. Child pornography is always going to be seen as one of the most vile things in existence—and justifiably so—however is it a reasonable excuse to justify Net Prejudice instead of Net Neutrality? Do Libertarians argue that private clubs should be regulated because something like North American Man/Boy Love Association (NAMBLA) can exist? Of course not; liberty is liberty, isn’t it?

I’ll say this much: Libertarians are consistent in their desire to see the government not meddle in the affairs of private industry. Thankfully the private Internet pipeline industry is not free of public subsidy and influence; the Constitution actually outlines the federal government’s ability to manage state commerce. Matthew Yglesias corrects the “interstate commerce” fallacy very well and very easily:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…

You often hear the phrase “interstate commerce” used in discussion of these issues, but it literally does not appear in the constitution. This reads to me like a laundry list of items aimed at establishing a federal government with comprehensive responsibility for the national economy. If you want to say that in the 1790 context a lot of people were engaged in purely local agricultural context and that sort of thing isn’t covered by this, then perhaps that’s fair enough, but basically none of the modern economy has that character.

The problem with the Libertarian stance, even beyond the constitutional non-reality the ideology festers under, is that the concept of positive and negative liberty is not being considered. Proponents of property rights during the Civil Rights Act era argued that the government shouldn’t meddle in the affairs of private enterprise (ironically, the states did mandate segregation in private facilities, further proving the case that libertarian property rights supports were full of crap on the segregation issue). They say that the right to manage one’s private property and to freely associate (or not associate) with blacks is an absolutely necessary liberty. They ignore the fact that blacks and other minorities were suffering from a lack of personal liberty as a result of this. Libertarians talk about the government limiting liberty (negative liberty) of property rights but don’t see the government adding liberty to blacks (positive liberty) by suppressing oppressors.

Will Wilkinson summarizes the positive/negative liberty issue very well here:

Federal intervention, while certainly limiting freedom of association and trumping more local jurisdictions, resulted IMO in an overall increase in freedom. That many traditional libertarian conservatives, such as Goldwater, seem to have been willing to sacrifice a great gain in overall freedom in order to maintain status quo levels local self-rule seems to me to betray a commitment to ancient ideals of liberty as community self-government in conflict with the modern idea of liberty as freedom from coercion.

The key thing to keep in mind is that there is a difference between negative intervention and positive intervention. Government intervention can always be seen as an evil on an ideological level but nothing is so simple in the real, non-ideological world. While property rights libertarians wil
l ar
gue that the government shouldn’t meddle in the private affairs of people, the government does have a constitutionally mandated responsibility to manage commerce and also protect individual liberty from the oppression of others. Property rights libertarians would argue that blacks shouldn’t have been emancipated because they were considered property and the government changing that is against liberty; never mind the fact slaves are human beings and have justifiable reason to believe they have human rights and liberties.

Looking at the negative/positive liberty argument in this manner changes things a bit, doesn’t it? Back to the Net Neutrality issue, though. Should the government have a hand in telling the Internet pipelines such as Comcast and Verizon that they have to look at content in the same way storefronts and Woolworth cafeterias need to look at content? If the government has the power and responsibility to make sure private stores don’t discriminate against blacks and minorities in lunchrooms, shouldn’t it also have the power and responsibility to make sure private Internet pipelines don’t discriminate against what’s going through their pipelines? Woolworth might have found blacks in their lunchrooms as disgusting and vile content just as much as Comcast-NBC might find Fox News video footage streaming through their pipelines as disgusting and vile content.

netneutrality Antagonists of Net Neutrality (or proponents of Net Prejudice, as I’d prefer to consider it) are making the mistake of only looking at negative liberty intervention: they see the government intruding in a private company (e.g. Comcast) and see liberty being taken away. What they fail to see is that without Net Neutrality, Comcast can and probably will (as it already has) limit access to online content through their pipelines. Essentially, Comcast is being given the power and liberty to limit free speech and access to speech. A friend of mine, Niklas Blanchard once said he’d rather change “free speech” to “free hearing” and I, at first, didn’t get it. I do now, though; the freedom to hear something includes the freedom to say what is to be heard—and the freedom to hear includes the freedom to access what speech.  Whereas government intervention with Net Neutrality might include the direct effect of negatively affecting liberty of the Internet pipelines, it will increase, or maintain, the status quo of neutral access of online speech.

Antagonists of Net Neutrality sill also argue that if the government can tell the Internet providers how to manage their pipelines, the government can also tell the Internet providers that they are not allowed to give access to certain content. Isn’t that, however, exactly what the religious right is saying that the government should do—limit access to objectionable content? Never mind the stupidity there. I’ve diverged from the subject of Net Neutrality enough in this post. What’s so difficult to understand about Net NEUTRALITY? If the law of the land is that Internet providers cannot discriminate between content flowing through its pipelines, how in the world does the idea that the government will tell Internet providers to discriminate against content flowing through its pipelines?

Antagonists of Net Neutrality will then say that if the Internet providers cannot discriminate against child pornography then child porn will flow freely and never be subject to legal action. I’m sure this is the next step in the discussion, isn’t it? Of course. That’s because these antagonists don’t bother to look at the full breadth of the issue. The Internet pipelines are different than content providers. Child pornography itself is illegal and so is the distribution of child pornography. The people/entities who own the pornography and distribute it aren’t the Internet providers, it’s the ones who have access to it and share it online. The government would retain the power to go after these people once they’re found out to have this content and distribute it. Content is different than transmission of data. Saying that transferring illegal data online should be regulated is like saying the hand motions between a drug dealer and a drug consumer should be regulated. It’s the actual sale that should, considering drug prohibition laws, be illegal, not the hand motions that lead to the actual exchange. It’s not coincidence that when two computers connect over a pipeline there’s usually a bit of hand shaking.

Antagonists of Net Neutrality will then say that people can simply choose to go with another Internet provider if they don’t like their current provider limiting access. That argument would make sense if everyone in the US had access to many different Internet providers. The fact of the matter is that is far from the case. Eric Bangeman elaborated the case against this line of thought in his piece called “Amazon exec: net neutrality necessary because of ‘little choice’ for consumers”:

The two largest telecoms in the US are proponents of a tiered Internet, in which an ISP would have carte blanche give priority to certain traffic at the expense of the rest. Joining consumers on the other side of the debate are companies that rely heavily or exclusively on the Internet for their revenue streams, like Google, Yahoo, and Amazon. In an interview, Amazon VP of Global Public Policy Paul Misener reinforces one of the reasons why we need net neutrality: our (lack of) choice when it comes to broadband.

[…]

By the FCC’s reckoning, that means I have broadband choice here on the northwest side of Chicago. Well, sort of. For cable, my sole choice is Comcast?and that’s what I use, with few service complaints. On the other hand, DSL is not an option for me because of the lousy infrastructure in my over 80-year-old neighborhood and my distance from the DSLAM. Broadband over power lines? Not yet. Citywide WiFi network? A gleam in Mayor Daley’s eye. WiMAX? Some day, maybe. Broadband choice? Not in any coherent sense of the word.

There goes that argument. Right now I have two choices: a small fixed wireless broadband service that barely registers as dependable and satellite “broadband” that wouldn’t register as real broadband ten years ago. DSL? Same problem as Bangeman’s. Cable broadband? Haha… maybe in the next 100 years. Broadband over power lines? I live in an area where, without government energy regulation requiring energy companies providing electricity to everyone, I wouldn’t have electricity let alone broadband over power lines. Citywide WiFi? My neighbor is a cow pasture, not another broadband consumer. Choice is limited and will be. Let’s not go into the issues of Net Neutrality that would lead to more choice.

As I said before, the religious right is priming to head into the Net Neutrality discussion using the scare tactic of child pornography. If history has shown us that the religious right has enough political sway to ban free speech on television, it’s likely that the technologically ignorant Washington legislators will end up siding with them. When you’ve got prominent senators like Ben Nelson of Nebraska saying they won’t vote for limiting the price of ATM fees because they don’t know much about ATMs and Supreme Court justices ignorant of the difference between text m
essa
ges and pagers, you know you’ve already lost the technology war.

Opposing Views on Net Neutrality.

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