Saving the Net: How to Keep the Carriers from Flushing the Net Down the Tubes

This is a long essay. There is, however, no limit to how long I could have made it. The subjects covered here are no less enormous than the Net and its future. Even optimists agree that the Net's future as a free and open environment for business and culture is facing many threats. We can't begin to cover them all or cover all the ways we can fight them. I believe, however, that there is one sure way to fight all of these threats at once, and without doing it the bad guys will win. That's what this essay is about.

Here's a brief outline of the article. If you want to go straight to the solution, skip to the third section:

Be afraid. Be very afraid. --Kevin Werbach.

Are you ready to see the Net privatized from the bottom to the top? Are you ready to see the Net's free and open marketplace sucked into a pit of pipes built and fitted by the phone and cable companies and run according to rules lobbied by the carrier and content industries?

Do you believe a free and open market should be "Your choice of walled garden" or "Your choice of silo"? That's what the big carrier and content companies believe. That's why they're getting ready to fence off the frontiers.

And we're not stopping it.

With the purchase and re-animation of AT&T's remains, the collection of former Baby Bells called SBC will become the largest communications company in the US--the new Ma Bell. Verizon, comprised of the old GTE plus MCI and the Baby Bells SBC didn't grab, is the new Pa Bell. That's one side of the battlefield, called The Regulatory Environment. Across the battlefield from Ma and Pa Bell are the cable and entertainment giants: Comcast, Cox, TimeWarner and so on. Covering the battle are the business and tech media, which love a good fight.

The problem is that all of these battling companies--plus the regulators--hate the Net.

Maybe hate is too strong of a word. The thing is, they're hostile to it, because they don't get it. Worse, they only get it in one very literal way. See, to the carriers and their regulators, the Net isn't a world, a frontier, a marketplace or a commons. To them, the Net is a collection of pipes. Their goal is to beat the other pipe-owners. To do that, they want to sell access and charge for traffic.

There's nothing wrong with being in the bandwidth business, of course. But some of these big boys want to go farther with it. They don't see themselves as a public utility selling a pure base-level service, such as water or electricity (which is what they are, by the way, in respect to the Net). They see themselves as a source of many additional value-adds, inside the pipes. They see opportunities to sell solutions to industries that rely on the Net--especially their natural partner, the content industry.

They see a problem with freeloaders. On the tall end of the power curve, those 'loaders are AOL, Google, Microsoft, Yahoo and other large sources of the container cargo we call "content". Out on the long tail, the freeloaders are you and me. The big 'loaders have been getting a free ride for too long and are going to need to pay. The Information Highway isn't the freaking interstate. It's a system of private roads that needs to start charging tolls. As for the small 'loaders, it hardly matters that they're a boundless source of invention, innovation, vitality and new business. To the carriers, we're all still just "consumers". And we always will be.

"Piracy" is a bigger issue to the cargo sources than to the carriers. To the carriers, "fighting piracy" is a service offering as well as a lever on regulators to give carriers more control of the pipes. "You want us to help you fight piracy?", the transport companies say to the content companies. "Okay, let's deal." And everybody else's freedoms--to invent, to innovate, to do business, to take advantage of free markets and to make free culture--get dealt away.

The carriers have been lobbying Congress for control of the Net since Bush the Elder was in office. Once they get what they want, they'll put up the toll booths, the truck scales, the customs checkpoints--all in a fresh new regulatory environment that formalizes the container cargo business we call packet transport. This new environment will be built to benefit the carriers and nobody else. The "consumers"? Oh ya, sure: they'll benefit too, by having "access" to all the good things that carriers ship them from content providers. Is there anything else? No.

Crocodile grins began to grow on the faces of carriers as soon as it became clear that everything we call "media" eventually would flow through their pipes. All that stuff we used to call TV, radio, newspapers and magazines will just be "content" moving through the transport layer of the pipe system they own and control. Think it's a cool thing that TV channels are going away? So do the carriers. The future à lá carte business of media will depend on one medium alone: the Net. And the Net is going to be theirs.

The Net's genie, which granted all those e-commerce wishes over the past ten years, won't just get shoved back in the bottle. No, that genie will be piped and priced by the packet. The owners of those pipes have a duty to their stockholders to make the most of the privileged position they've been waiting to claim ever since they got blind-sided, back in the 80s and 90s. (For an excellent history of how the European PTTs got snookered by the Net and the Web, see Paul F. Kunz' Bringing the World Wide Web to America.) They have assets to leverage, dammit, and now they can.

Does it matter that countless markets flourish in the wide spaces opened by agreements and protocols that thrive at the grace of carriage? Or that those markets are threatened by new limits, protections and costs imposed at the pipe level?

No.

Thus, the Era of Net Facilitation will end. The choke points are in the pipes, the permission is coming from the lawmakers and regulators, and the choking will be done. No more free rides, folks. Time to pay. It's called creating scarcity and charging for it. The Information Age may be here, but the Industrial Age is hardly over. In fact, there is no sign it will ever end.

The carriers are going to lobby for the laws and regulations they need, and they're going to do the deals they need to do. The new system will be theirs, not ours. The NEA principle--Nobody owns it, Everybody can use it, Anybody can improve it--so familiar to the Free Software and Open Source communities will prove to be a temporary ideal, a geek conceit. Code is not Law. Culture is not Free. From the Big Boys' perspective, code and culture are stuff nobody cares about.

That's us: Nobody.

The new carrier-based Net will work in the same asymmetrical few-to-many, top-down pyramidal way made familiar by TV, radio, newspapers, books, magazines and other Industrial Age media now being sucked into Information Age pipes. Movement still will go from producers to consumers, just like it always did. Meet the new boss, same as the old boss. Literally.

The deals that matter will be done between tops of pyramids. Hey, it's easier to do business with the concentrated few than the dispersed many. The Long Tail can whip itself into a frenzy, but all the tech magazines and blogs in the world are no match for the tails and teeth of these old sharks. (Hey, Long Tailer, when's the last time you treated your erected representatives to private movie screenings, drafted their legislation, ghosted their committee reports, made a blockbuster movie or rolled fiber across oceans?)

Google and Yahoo and Amazon and eBay and e-commerce and free software and open source and blogging and podcasting and all the rest of that idealistic junk have had their decade in the sun. Hell, throw in Apple and Microsoft, too. Who cares? Them? Doesn't matter how big they are. They don't matter. They're late to the game.

We all know the content business got clobbered by this peer-to-peer crap. But the carriers took a bath by building out the Net's piped infrastructure. They sank $billions by the dozen into fiber and copper and routers and trunks, waiting for the day when they'd be in a position to control the new beast fleshed on the skeleton that they built.

That Day Has Come.

It came earlier this month, when the November 7, 2005, issue of BusinessWeek hit the Web's streets. In that issue are "Rewired and Ready for Combat" and "At SBC, It's All About 'Scale and Scope'", which features an interview with Edward Whiteacre, CEO of SBC. Here's the gist of it:

If I were BusinessWeek, I'd ask:

What about the free and open marketplace that has grown on the Net itself? Do you have any interest in continuing to support that? Or in lobbying forms of deregulation that foster it? Or are you just in a holy war with the cable companies inside the same old regulatory environment you've known since forever?

I'd ask:

If you were to buy, say, Level 3, would you start to filter and restrict content at the transport level, to extract the profits you want, without regard for other market consequences? Would Cisco, builder of the great Firewall of China, help out?

I'd ask:

Which do you prefer: The regulatory environment where your business has adapted itself for more than a century, or a completely free and open marketplace like the rest of us enjoy sitting on top of your pipes?

Whiteacre's answers, of course, would be less relevant than the obvious vector of his company's intentions. For a summary of that, let's return to Lauren Weinstein of People for Internet Responsibility:

Don't blame BusinessWeek for not asking the important questions or for missing the Carriers vs. Net story. Biz pubs love to cover vendor sports. And there's certainly a big story here.

Great distraction, vendor sports. While we're busy watching phone and cable giants fight over a closed battlefield that ought to be open, we miss Net-hostile moves by other parties that result in other lost freedoms.

Take ICANN, for instance, where a new .com Registry Agreement allows Verisign to raise the rates for .com names by 7% annually, and to operate .com in perpetuity, and to "mak[e] commercial use of, or collect, traffic data regarding domain names or non-existent domain names", and to reap other rewards for what few other than Verisign would agree is a good job. Bret Faucett summarizes the darkest shadow across the noir scenario we've already described:

Bret has one of the most eloquent voices in the wilderness of clues the Big Boys would rather avoid. So does Susan Crawford, who was just, perhaps miraculously, named to the ICANN board.

For Bret, Susan and the rest of the restless natives of this new world, what matters most is Saving the Net--keeping it a free and open marketplace for everybody--while also making sure that carriers of all kinds can compete and succeed while providing much of the infrastructure on which that marketplace resides. That means we need to understand the Net as more than a bunch of pipes and business on the Net as more than transporting and selling "content".

This isn't a trivial issue. It's a matter of life and death for the Net itself. How are we going to fight?

Read on.

The deathblow comes from the muni Wi-Fi efforts. It doesn't matter whether they are viable or not--all they need do is give local connectivity the moral high ground and represent a grass roots effort that the legislature not only can't ignore but can embrace. --Bob Frankston

In ancient telco lingo, "bypass" is anything that works around the phone system itself. Susan Crawford wisely encourages bypassing not only the system but the whole notion of fixing it with "Network Neutrality" agreements or legislation. In response to the questions, "What, if any, version of common carriage rules should govern Internet communications platforms? More specifically, can some concept of Network Neutrality be defined and enforced proactively in the form of prescriptive regulations?", she answers,

Muni Wi-Fi is a form of bypass. So are other government-sponsored or assisted workarounds.

So are the private ones. If Om Malik and Business 2.0 are sniffing the right trail, that's what we'll get from Google. Here's what Om said on August 25, 2005, in "Free Wi-Fi? Get Ready for GoogleNet":

One contact in a Position to Know tells me that Google's purpose isn't bypass, but advertising. That's their revenue model, and if you follow the money--as well as the company's development and acquisition vectors--you get to a place where highly targeted advertising pays for everything. Should this be a problem? There are damn few large companies taking the Net's side here. If Google gets to be a major carrier as well as the major search engine and advertising pump it is today, that sure as hell beats the alternatives. Especially when Google is fighting the incumbents on the battlefield we call Congress.

For example, there's an Internet regulation bill working its way through the House of Representatives right now as part of a broad effort to replace the Telecommunications Act of 1996, which pretty much everybody agrees is in woeful need of an upgrade. Naturally, lawmakers and the lobbyists who employ them want more laws, more regulation, more favoritism. So, Brett Glass points out, "like earlier versions, it subjects all ISPs and VoIP providers to intensive Federal regulation and requires them to register before providing service. It also preempts state and local control over rights of way".

Google isn't merely against bills like this, it's opposing them publicly. Vint Cerf, Google's Chief Internet Evangelist, sent an open letter this past Wednesday to the Energy and Commerce Committee, speaking out against this bill and others like it. The key paragraphs:

Significantly, Vint Cerf, often called "The father of the Net", is the prime author of TCP/IP, the core protocol suite that the Net itself employs.

Bills such as this one travel through a pro-market Congress on the strength of "deregulation" claims by carriers, which are made on television as well as in the halls of Congressional office buildings. As Lauren Weinstein reports:

Of course, the carriers are plainly anti-market and have been for the duration. Such is the nature of corporate species that have thrived exclusively in a highly controlled regulatory environment.

Regulatory habitats are by nature anti-market as well, regardless of the pro-market leanings of their top officials. This is why regulatory reform itself is inherently nutty. This point was made expertly last Wednesday by Susan Crawford:

Glad you asked, Susan. I have the answer.

All due credit to the EFF, Creative Commons and every other organization in the pro-Net alliance, but there isn't much hope of changing hearts and minds as long as we think and talk in the transport language of the telcos, cablecos and "content" producers. When we do that, we lose. Case in point: Eldred vs. Ashcroft. Larry Lessig and other good guys fought the good fight on Eldred and lost when the Supremes sided 7-2 with Ashcroft. In January, 2003, I suggested that one reason the good guys lost was, literally, linguistic:

Larry Lessig replied:

The radicals in Larry's proximal debate are copyright extremists of the Sonny Bono school, which favors extension of copyright to "forever less one day". In this debate the radicals are the carriers. We need to fight them, just as Larry and crew need to fight the copyright extremists: by re-framing the subject.

To start we acknowledge the necessity of the transport metaphor; but also its insufficiency.

Of course, at its base level the Net is a system of pipes and packets. But it's not only packets, or "content" or anything for that matter). Understanding the Net only in transport terms is like understanding civilization in terms of electrical service or human beings only in terms of atoms and molecules. We miss the larger context.

That context is best understood as a place. When we speak of the Net as a "place" or a "space" or a "world" or a "commons" or a "market" with "locations" and "addresses" and "sites" that we "build", we are framing the Net as a place.

Most significantly, the Net is a marketplace. In fact, the Net is the largest, most open, most free and most productive marketplace the world has ever known. The fact that it's not physical doesn't make it one bit less real. In fact, the virtuality of the Net is what makes it stretch to worldwide dimensions while remaining local to every desktop, every point-of-sale device, every ATM machine. It is in this world-wide marketplace that free people, free enterprise, free cultures and free societies are just beginning to flourish. It is here that democratic governance is finally connected, efficiently, to the governed.

It is on and not just through--prepositions are key here--the Net that governments will not only derive their just powers from the consent of the governed but benefit directly from citizen involvement as well.

As a place, the Net has always been independent of the carriage on which it relies, which is one reason it also encourages and rewards independence. The independence of the Net and its inhabitants is precisely what accounts for countless new businesses and improved old ones.

The architecture of the Net's world is End-to-End (See "End to End Arguments in System Design" by J.H. Saltzer, D.P. Reed and D.D. Clark). In "The Rise of the Stupid Network", which he wrote for the benefit of his employer while he was still at AT&T, David Isenberg says "The Internet breaks the telephone company model by passing control to the end user. It does this by taking the underlying network details out of the picture." In "World of Ends", David Weinberger and I added:

The term "world of ends" was inspired by Craig Burton's characterization of the Net's "stupid" end-to-end architecture as a three-dimensional zero. "In fact," he says, "there's no other way to visualize a place comprised of nothing but ends, all zero distance from each other, where all the intelligence is on the outside". He adds, "It's important to remember that zero is the value here. You can't get in the middle of this world and say 'This zero isn't valuable enough. I'm going to improve it.' That would be like jumping in the middle of the Earth and saying 'I'm going to improve on this gravity business'."

While the Net's nature is a world-wide place, the Web's nature is a world-wide publishing system. The Web was invented by Tim Berners-Lee, a scientist who wanted a simple way documents could be published and read, anywhere in the world, without restriction by physical location or underlying transport system. That's why it has hypertext protocols, "languages" and "formatting" standards. It's also why we "write", "author" and "mark up" "documents" called "pages" and "files" which we "post", "publish" or "put up" so others can "index", "catalog" and "browse" them.

To sum up, the Net has all these natures:

--and others as well. But those aren't at war with one another, and that's what matters most.

Right now #1 is at war with #2 and #3, and that war isn't happening only in the media and in congressional hearing rooms. It's happening in our own heads. When we talk about "delivering content to consumers through the Net", rather than "selling products to customers on the Net", we take sides with #1 against #2. We unconsciously agree that the Net is just a piping system. We literally devolve: our lungs turn to gills, our legs turn into flippers, and we waddle back into the sea--where we are eaten by sharks.

What I'm talking about here isn't "just semantics" or trivial in any other way. It's fundamental, especially to lawmaking and regulation.

For example, if we describe speech and publishing, that stuff the First Amendment protects as "content", then the rights granted to speech become subordinate to regulations governing carriage. Look into the metaphors used by the Supreme Court in its decision in favor of the National Cable & Telecommunications Association, et. al., in that group's suit against Brand X. Internet Services, et. al.:

Disregard for now the opacity of the prose and even the complete absence of the place and publishing metaphors that define the Net and the Web. Just look at the time scale involved. There are a series of regulatory regimes here, beginning with the Telecommunications Act of 1934. Today we operate under the Telecommunications Act of 1996. Reforms of that act are likely to remain law for a long time.

Meanwhile, we have Section 1464 (Broadcasting Obscene Language) in CHAPTER 71 - OBSCENITY in PART I - CRIMES of TITLE 18 - CRIMES AND CRIMINAL PROCEDURE of the United States Code, which forced the FCC to rationalize stomping all over the First Amendment. Look at the headings under Chapter 71, and you'll find that most of the sections (including 1464) begin with transportational verbs: Mailing, Importation, Broadcasting, Distribution, Transfer.

Thanks to the transport metaphor, the FCC can punish forms of speech it calls "obscene", "profane" or "indecent" and explain it in a document titled "content.html". The same victory of pipes over place accounts for this tortured entry in its Obscenity, Indecency & Profanity FAQ:

Thanks to the transport metaphor, even relatively pro-market and pro-Net regulators, such as former FCC Chairman Michael Powell, speak about "consumers" having "rights" to "access" and "attach" to "connections" about which they should have "choices". In fact, the whole case for "protecting consumers" from bad content and its sources is framed in terms that reify the Net as a system of pipes.

One reason transport trumps place is that business itself is largely, though not entirely, conceived in shipping terms. The "value chain" is a transportational notion. We speak of "loading" goods into "channels" for "distribution" to "end users" or "consumers". We even talk about "delivering" services.

On the other hand, we have understood markets as places since marketplaces were the only kinds of markets we had. The metaphors that come naturally to Wall Street are helpful here. When we speak of "bulls", "bears" and "invisible hands", we assume those beings operate in an place-like environment. When we say markets have feelings--"excitement", "fear", "anticipation", "reaction"--we assume those happen in an environment (that is, a place) as well. Even "Wall Street" is ontologically locational. It is a real place that serves, by what cognitive linguistics call metonymy, for the whole stock market, which we also conceive of as a place.

Experience counts. Humans are physical beings. All of us who use the Net experience it as a place. Prepositions are revealing. We go on the Net, not through it.

In Metaphors We Live By, George Lakoff and Mark Johnson write:

We who know and understand the territorial nature of the Net need to appeal to the same territorial sense in those we hope to win over with our arguments.

Advocating and saving the Net is not a partisan issue. Lawmakers and regulators aren't screwing up the Net because they're "Friends of Bush" or "Friends of Hollywood" or liberals or conservatives. They're doing it because one way of framing the Net--as a transport system for content--is winning over another way of framing the Net--as a place where markets and business and culture and governance can all thrive. Otherwise helpful documents, including Ernest Partridge's "After the Internet" fail because they blame "Bush-friendly conservative corporations" and appeal only to one political constituency, in this case, progressives. Freedom, independence, the sovereignty of the individual, private rights and open frontiers are a few among many values shared by progressives and conservatives. All are better supported, in obvious ways, by the Net as a place rather than as a transport system.

This is especially true of the Net as a place where free and open markets thrive. This is the Net that we built, where we have sites and locations and domains.

It is also important to describe what the Net is and how it works from the standpoint of technology itself: specifically those that create and enlarge the Net and its services. So we're talking here not just about HTTP and HTML but also XML and RSS. These reify the Net as a place where people and organizations speak and publish and produce and govern and build businesses and perform services. These are made possible, we should make clear, by the end-to-end nature of the Net and by the even-endedness of every participant.

We should avoid getting trapped by arguments about peer-to-peer sharing that drop us into the mud-pit of Hollywood's "piracy" fears and residual disdain by conservative lawmakers (still the majority) for anything that smacks of Communism. Unfortunately, that means we should also avoid talking about the Net as a "commons" except with those who understand the concept.

We need to make clear that the Public Domain is the market's underlying geology--a place akin to the ownerless bulk of the Earth--rather than a public preserve in the midst of private holdings. This won't be easy, but it can be done.

We need to stress the fact that the primary "end" in the Net's end-to-end architecture is the individual. The Net's success is due far more to the freedoms enjoyed by individuals than to the advantages enjoyed by large companies whose existence predates the Net.

We need to remind policy makers that the Net's biggest success stories--Amazon, Google, eBay and Yahoo--are the stories of Bezos, Page, Brin, Omidyar, Yang and Filo.

We need to make clear that the Net is the best public place ever created for private enterprise, and that the success of the Net owes infinitely more to personal initiative than to the mesh of pipes in the ground beneath it.

We need to show how the Net has its own nature, and that this nature is too dynamic--too original, too wild and free, too self-creating and self-correcting--for new lawmaking to comprehend, much less control.

We need to stress how the pipe-centric view of the world is responsible for the crippled and asymmetrical "consumer" service the carriers call "broadband". By restricting upstream use of the Net and biasing service to downstream "content delivery", the carriers have effectively outlawed personal and small business enterprise on the Net. This is one area where the carriers have been persistently clueless and hostile to the Net since the beginning, and we need to call them on it. (Required reading: John Perry Barlow's Death From Above, written in March 1995.)

I could go on, but I'd rather leave that up to the rest of you.

These are ideas, of course. I present them forcefully because I believe we--the technical community--are being called to fight for a world we made and continue to make. And one which is under grave threat.

That threat appears in many forms, all of which are easy to blame and attack. But all those forms are expressions of a simple concept: that the Net is, above all, a system of pipes. Those pipes are in fact below, not above. They support a World of Ends, but they don't define it.

Unless we let them.

A few final words about deeds. Right now we face a number of deadlines on anti-Net legislation being lobbied through Congress by what David Berlind calls "Tellywood", with help from the carriers. He explains the situation expertly:

David goes on to talk about how the RIAA helped author the HD Radio Content Act of 2005, which would prevent you from recording anything off the digital signals slated to replace the analog ones still on radios today. He adds:

The list goes on. Read it. Then contact your Congresspeople. Tell them to keep the Net open and free and to vote against any legislation meant to protect any industry from "threats" they see coming from a new world they refuse to understand.

And, as the end of the year approaches, be sure to send your tax-deductible contributions to the EFF, Creative Commons and other organizations working with you to save the Net.