Once upon a time, boys and girls, there were no big Internet sites like Google and Ebay, and no big Internet service providers (ISPs) like Comcast and Verizon. People accessed the Internet through thousands of small ISPs operating out of dorm rooms and coat closets. The sites they reached were mostly small and home-grown. Users formed networks serving all kinds of interesting and off-beat interests. Pornography, the universal early adopter for every new communications technology, flourished as well.
The FCC had resolved back in 1976 not to regulate “enhanced services,” a decision that applied to the later-arriving Internet. That was just as well, because the emerging Internet was so hopelessly decentralized that any effort at regulation would have been ludicrous. Users operated with complete freedom, beyond the reach of any authorities that might have cared.
No more. A small number of interests now run the facilities that most consumers need to access the Internet. As control continues to centralize, regulation becomes more feasible. But is it desirable?
Over the last few years, the FCC reiterated its 1976 hands-off decision as to facilities used for broadband Internet access. The current question is whether it should now step back in – not to control content, which would be unconstitutional, but to maintain free access to content. Four distinct viewpoints have emerged:
- Old-time users and their younger allies seek to preserve the Internet’s original wide-open, anything-goes character at all costs – even if that (paradoxically) takes regulation.
- Big ISPs invoke the Internet’s original wide-open, anything-goes character to fight Government regulation that might limit their profit opportunities.
- Operators of big commercial websites support or oppose regulation as needed to ensure unimpeded (or preferred) delivery of their own content to their customers.
- Law-and-order interests favor even intrusive regulation to thwart use of the Internet for illegal activity, ranging from child pornography and terrorism to copyright infringement.
Two case studies illustrate the problem.
Comcast vs. BitTorrent
Comcast is the largest cable TV company and the second largest ISP in the United States. Among other services, the cable business offers video-on-demand (VOD) for a fee.
BitTorrent is a popular Internet application that helps users share very large files, such as movies. As a group, people who obtain movies for free with BitTorrent are probably less likely to pay for Comcast’s VOD.
Comcast programmed its ISP servers to peek into subscribers’ communications looking for BitTorrent packets. When they found one, the servers sent out forged signals that instructed both ends of the communication to hang up. Comcast put out successive denials and explanations, all later shown to be untrue.
The FCC suspected that Comcast was interfering with BitTorrent to protect its VOD service from competition, and ordered it to stop all discrimination based on content. By then, Comcast had already done so. But it nonetheless appealed the order in federal court, questioning the FCC’s authority over its internal network management practices. Since the FCC had not fined Comcast, and the company was already in compliance with the FCC’s order, the appeal was purely a matter of principle.
Even so, Comcast may have a point. Possibly two points. The FCC gets all of its authority from Congress via particular statutes. Ordinarily an FCC order disposes of the authority question by citing the relevant statute. But the Comcast order, lacking a statute to cite, struggles through a dozen single-spaced, heavily footnoted pages to establish its authority. Comcast is betting the court won’t buy it. Moreover, the FCC does not claim that Comcast violated any specific regulation, there being none on this topic. The FCC does point to a published policy statement on broadband services under which, among other things, consumers are “entitled to access the lawful Internet content of their choice,” and “to run applications and use services of their choice.” But the FCC did not follow the procedure needed to put this language into an enforceable rule. Although Comcast’s actions may have been anticompetitive, discriminatory, and just plain unfair, they might not have been illegal. And the FCC has still not proposed rules to prohibit similar future conduct by others.
An early Internet application that long predated the World Wide Web, Usenet is hundreds of thousands of discussion groups covering every imaginable human activity (and also some others). The groups are organized into “hierarchies” with names like comp.*, rec.*, soc.*, and dozens of others. ISPs have traditionally made Usenet available as part of the service.
Eight of the major hierarchies – the so-called “big eight” – have loose rules for starting new groups. A ninth big hierarchy, alt.* does not. Anyone can start an alt.* group. Many have. Roughly 100,000 such groups exist, ranging from alt.history.ocean-liners to alt.swedish.chef.bork.bork.bork. Some concern out-of-the-way sexual interests. A few dozen are suspected of having been used to distribute child pornography.
That activity is unlawful. Enforcement authorities could have used appropriate procedures to shut down the offending groups, plus any new ones that pop up. But they did not. Instead, the New York attorney general called in the large ISPs and asked them to voluntarily block the entire alt.* hierarchy – including the 99.9% that is fully legitimate. AT&T, Comcast, RoadRunner, Sprint, Time Warner, and Verizon all complied. Verizon went further, and blocked all of Usenet except the big eight. Comcast went further still. It shut off its subscribers from all of Usenet.
Of course no large company wants to be seen as aiding child pornography. Yet subscribers have every right to the vast majority of Usenet that deals with other material. For an attorney general or a legislature to order the complete shut-down of alt.* would be unconstitutional. The same action, if carried out voluntarily by an ISP, would seem contrary to the Comcast ruling. Yet, the FCC’s response to the widespread blocking of Usenet, affecting a large fraction of U.S. Internet users, has been . . . nothing.
More Regulation, Fewer Restrictions
The Internet’s inventors thought they had built something so decentralized as to be immune to authoritarian control. They failed to foresee access becoming concentrated into a handful of large companies, or those companies caving so easily to law-enforcement authorities making improper requests. To achieve the dream of the unregulated Internet – everyone able to access content posted by anyone on the globe – the FCC may have to step in and regulate after all.