As I write these words, the FCC has just issued draft regulations abolishing the rules meant to secure “network neutrality” on the internet. Those regulations themselves were a surprising victory in the second term of the Obama administration. Obama had made neutrality a critical part of his first campaign. But it was a former industry lobbyist turned FCC chairman, Tom Wheeler, along with an extraordinary deputy, Gigi Sohn, who finally pressed a constitutionally resistant FCC to adopt a substantial body of federal regulations that would go a long way toward securing for the future of the internet the kind of competitive platform that defined the very best of its past.
Those regulations were astonishingly popular — with the users of the internet and those who developed content and applications. Not so much with the network owners. The battle to build pressure on the FCC to preserve network neutrality regulations is the most successful internet fight in the history of citizen organizing. More than 20 million comments were filed with the FCC by the end of last summer, the vast majority of which demanded that the FCC preserve the rules. The geeky John Oliver had set the terms of the debate — with multiple videos making the issue as clear as it could be (2014, 2017). The internet rallied in response.
I’ve been in the network neutrality fight for a very long time. My colleague Mark Lemley and I wrote a paper in 2000 about the need to protect what we then called, borrowing from network theorists David P. Reed, Jerry Saltzer, and David D. Clark, the “end to end” principle of the internet. At that stage the battle was about “open access” to the broadband net—the freedom of ISPs to connect to all broadband facilities, whether cable or DSL, and provide consumers with real broadband ISP choice. After George Bush became president, that fight was over. The Bush FCC not only refused to extend open access to cable, but also withdrew the regulations as they applied to DSL. There would not be real competition at the physical layer of the network, so that made it clear that we had to fight for neutrality at the logical layer. In my book The Future of Ideas (2001), I sketched that principle of a “neutral network.” In the summer of 2002, I tried to persuade one of the best students I’ve ever had, Tim Wu, to take up the project of what he called network neutrality. Luckily for mankind, he did. And that fall, stealing my former student’s framing, I testified before the Senate Commerce Committee about the need for network neutrality. Four years later, I made essentially the same pitch before the same committee. Two years after that, I did it again.
I say this not to take any credit for the incredible political movement that made network neutrality the law. I deserve no such credit. At just the moment this fight became political, I had shifted my scholarship and activism from internet policy to the corruption of our democracy. From the sidelines, I watched with admiration as Wu and others rallied an extraordinary movement of technologists and political activists to translate and make compelling the ideas that in my own hands had been, well, just academic.
Yet as I watch their great work get wiped away by an FCC chairman focused exclusively on making an industry happy, I can’t escape the recognition that led me to move on from this field just over a decade ago. For as I read the frantic activism on Reddit and Twitter, I just want to grab these great souls by the shoulders and ask them,
“Why would you ever expect network neutrality to survive within a government that has so completely given up on democratic neutrality?”
Because there is a deep but obvious link between the internet we want and the democracy we should have.
Think about it like this:
A neutral network has no particular stake in any particular application or content. It is independent of the particulars and simply serves all comers equally. Ideally, the net has no capacity or, alternatively, at least no legal interest in bending network service to one application or one kind of content. Its only interest is in serving the users of the network, as the users demand. If the users want to stream YouTube or Netflix rather than pay hundreds of dollars a month for cable TV offerings, the independent, neutral network says,
“Whatever. My job is to serve the bits as quickly and cheaply as possible. What the bits carry is none of my concern.”
That independence gave us the internet we know. Does anyone believe there would have been Netflix of YouTube if cable broadband owners were allowed to block or slow its content? Does anyone believe there would have been Skype had telephone networks — upon which the internet was born — been free to block applications they didn’t like? The great innovations of the internet came to us because the platform itself was independent of those innovations. Anyone could innovate, and the winners were the innovators that we, the users, liked best.
The same values should guide democracy as well. What our democracy does, it should do with representatives who are, analogously, independent. Not independent of us, the citizens, but of the equivalent to network intermediaries, the concentrated funders of political campaigns. Representatives must be free to aim for the policy that reflects the demands of the people, as efficiently and effectively as they can, independent of the interests of any powerful, and entrenching, intermediaries.
Yet that is not how our government operates today. Instead, on the network that is our government, there are extraordinarily powerful intermediaries. We call them the lobbyists and funders of political campaigns. Congress is deeply dependent upon these intermediaries. Those intermediaries pay the piper; our Congress is increasingly eager to sing their tune, with the result that our government doesn’t do what its people would want; rather, it does what the Congress-owners demand that it does.
Consider the internet “policy” of the Trump administration as Exhibit 1: There is no way to understand the mix of policies being pursued by the Republicans except as the most crass sellout to commercial, aka campaign funder, interests. In the old days, there was at least a pretense of neutral policy that was wrapped around bad ideas. Today, no one can even utter a principled justification without giggling. The Republicans have auctioned internet users’ privacy to the highest bidder — literally, passing the statute that did that in the same week Trump announced new privacy protections for lobbyists visiting the White House. Lobbyists, in Washington-land, get privacy (in the form of hiding the fact that they are lobbying Trump), but internet users get nothing beyond the deal they can strike with their network provider (and guess what — surprise, surprise!—there’s likely just one).
The same with the network neutrality rules soon to be banished from the FCC’s registry: The support for those rules was overwhelming. Never in the history of modern democracy have more rallied to demand an agency enact specific regulations. The arguments are complex, and people could be on either side with good faith. But what’s motivating the FCC chairman has little to do with reasoned argument. Ajit Pai is likely on his way — as practically every FCC chairman (though not all) has before him — to a cushy (as in literally a million-dollar salary) government relations job at a major network provider. (And if he isn’t, let him commit now never to work for those he’s working so hard to benefit just now.)
It was an extraordinary act of collective learning that led millions to recognize that the future of the internet depended upon something as obscure as “network neutrality.” No one two decades ago believed this could ever be a political cause; no one should underestimate the extraordinary effort of those who succeeded in making it politically salient.
But the same souls who see the neutrality that’s necessary for the internet now need to recognize that democracy depends upon that same neutrality as well. We won’t ever sustain network neutrality regulations so long as Congress remains the pathetically dependent institution that it is. We will never see Congress pass effective internet privacy regulations so long as it remains the pathetically dependent institution that it is.
Democracy needs independence — not from the people, but from the current Congress-owners—just as the internet needs independence from the potentially corrupting influence of its intermediaries: the network owners.
Neither is possible without both. And now that we may have lost the one, can we rally to the fight to secure both? We tried network neutrality first. That likely hasn’t worked. Let’s now try democratic neutrality first. And once we have a Congress that cares more about the people it represents than the funders of campaigns, we can then return to the fight for sensible internet policy. And climate change policy. And fair tax policy. And defense policy. And health care policy. And education policy. And drug policy. And, well, you get the idea.