Can free speech be restricted in a private mall? It’s a debate that’s raged for decades. Self-styled free speech advocates warn that as more of our public spaces become privately owned, it will become impossible for people to exercise their First Amendment rights in the modern-day equivalents of the town square. On the other hand, private malls are private property. It seems like common sense that their owners can restrict what people do on the premises.
This column is not about free speech at the mall. It’s about “net neutrality,” an esoteric but extremely important debate in Internet regulation. But the fundamental principle is the same in both cases: do owners of private property that offer services to the public have the right to limit how their property is used? I hope to show that the case for allowing ISPs to set policy for their networks is even stronger than the case for allowing malls to restrict who may speak on their property.
At issue is a concept known as the “end-to-end principle.” The routers and switches that make up the Internet’s backbone behave as passive conduits of data, slinging ones and zeros around the globe without worrying about what they mean–whether they comprise your friend’s latest blog post, a recipe emailed from Grandma, or a stash of child pornography. It’s up to the computers at the edges, not the routers in the middle, to figure out what a particular string of bits means. That’s known as the end-to-end principle, and it has been responsible for the astonishing innovation of the last decade. Because the Internet’s infrastructure is designed to be “data agnostic,” a programmer who wants to develop a new Internet application doesn’t need to ask any of the Internet’s administrators for their help or even their permission. All she has to do is get other Internet users to install the required software on their computers, and the existing Internet protocols will ensure their data gets where it needs to go.
Everyone agrees that the end-to-end principle is important, but there is debate about whether it should be absolute and required by law. On one side of the debate are people who–like private mall owners–believe that the owners of network infrastructure have the right to use that infrastructure as they please. One of them, Bruce Owen of Stanford University, laid out the case in the cover story of last summer’s issue of Regulation magazine. He argued that network administrators are in the best position to set policies for their networks, and the government should respect their right to do so.
Owen’s colleague Lawrence Lessig responded in the fall issue by arguing that no one, even the owners of network infrastructure, should be permitted to violate the end-to-end principle. Instead, he said, there ought to be an “innovation commons” in which every user has the right to run whatever applications she wishes without interference from service providers. It is Owen, he argued, who is engaging in unnecessary meddling when he proposes to give networks the right to limit how their users use their networks.
Lessig dubs his position “net neutrality,” and he phrases his argument in admirably deregulatory language. Nevertheless, he has the issue precisely backwards. It is Lessig’s proposal for a legislatively mandated “innovation commons,” not Owen’s support for strong property rights in network infrastructure, that is unnecessarily meddlesome. Adopting it would do serious damage to innovation on the Internet.
Lessig ignores the fact that as a practical matter, someone must decide what policies will be made on network equipment. If that decision is taken out of the hands of owners it will inevitably fall to government regulators. That’s a recipe for disaster. Network administrators often need to respond in a matter of days, or even hours, to threats and problems on their networks. Government regulators are not known for their nimble and efficient decision making.
More pragmatically, although the end-to-end principle is important up to a point, no one seriously thinks the principle should be absolute. After all, the firewall, one of the most important tools in network security, exists for the explicit purpose of violating the end-to-end principle. In the effort to combat spam, viruses, and other malware, firewalls attempt to determine the content of network traffic and filter out potentially harmful traffic based on rules set by the administrator.
ISPs might have other legitimate reasons to violate the end-to-end principle. Some ISPs offer content-filtering services to families with young children in the house. Corporations often limit web access in the hopes of deterring employees from wasting company time. Some Universities limit the download speed of peer-to-peer networks on their campuses in the hopes of stifling piracy.
Most importantly, Lessig is unduly pessimistic about the fate of the information commons. To illustrate the dangers of ISP control over network policies, he speculates that Baby Bells might attempt to attempt to restrict Internet-based phone calls in order to avoid cannibalizing their revenues from traditional telephone service. That argument illustrates his ignorance of the Internet’s architecture, which makes evading such restrictions easy. It’s trivial to camouflage a telephone conversation as some other kind of network traffic to sneak it past the firewall. To prevent such trickery, they would have to adopt increasingly restrictive policies, creating the online equivalent of a police state in the process.
Fortunately, no Baby Bell would dare to cripple their broadband offerings, because they know that their customers have alternatives. Most DSL customers would be able to switch to the local cable company if they tired of playing cat and mouse with their Baby Bell. And new technologies like wireless broadband promise to expand consumer choice even further in the near future.
In short, mandatory “net neutrality” rules are unnecessary because good old-fashioned competition is sufficient to ensure an open future for the Internet. Lessig’s fears about the end of Internet innovation– like others’ fears about the death of democracy due to private malls– are greatly exaggerated. Just like mall owners, network administrators need the authority to set policies for the use of their facilities. And just as shoppers can patronize another mall if they don’t like one mall’s censorship policies, so too can consumers choose another broadband provider if one places intolerable restrictions on their browsing habits. “Net neutrality” mandates in cyberspace–like “free speech” protections in private malls–are unnecessary and counterproductive.
Tim Lee is science and technology editor of Brainwash and a staff writer at the Cato Institute. His website is binarybits.org.