The Google Defection

I’ve noted before how often the battle over network neutrality gets cast as a fight between service providers and content providers — between the owners of the pipes and the owners of the stuff that flows through them. The large-scale consumer activism on the issue, which has aligned with the content owners in favor of an open internet that treats all traffic equally, sometimes gets overlooked in the clash between powerful titans of the online industry.

To me that’s the biggest reason yesterday’s “compromise” proposal on the subject between Verizon and Google is alarming. A handshake involving one of the largest pipe owners and the most important web content company will be seen by many inside the Beltway as the equivalent of Camp David. I can hear the line of reasoning now: Historic enemies have reached agreement — surely their joint policy “framework” must be fair, as it has emerged from this hard-headed negotiation of adversaries!

Not so fast. As Tim Wu suggested last week before the companies unveiled their deal, Google has strategic business reasons to change its positioning on network neutrality. Looking at the deal itself, rather than just the characters behind it, raises many substantive concerns.

At core, to me, the most fundamental issue is simple. The main benign argument for “traffic management” is the ability of a company to allocate scarce capacity. If the network can only transmit a certain number of packets at a time, then perhaps some activities that hog bandwidth should be rationed. But if capacity is limited, then by definition every time you give it to one person, there is less remaining for everyone else. If some providers pay to load their content more quickly, then everyone else’s content will load more slowly. While it might make sense to allow limits on very bandwidth-intensive activities, the undefined “premium services” contemplated in this agreement are not limited to those that use more than their fair share of capacity in an open internet. So instead of helping the rest of us by curbing excessive users, paid deals to prioritize some traffic must de-prioritize other traffic — inevitably, the traffic from those who don’t or can’t pay for the fast-lane handling. (If, on the other hand, the argument is that there is enough capacity so that faster service for some does not mean slower service for others, then the scarcity argument in favor of traffic management must not hold water to begin with…)

The companies try to shift the argument by carving up the internet into different categories. As John Bergmayer explains brilliantly on the Public Knowledge blog, Google and Verizon draw distinctions between different delivery technologies (especially by separating wireless delivery) and between “the public Internet” and “additional online services.” But those are not principled distinctions. They are invented categories, attempts to whitewash the fact that any creation of first-class handling for big players will result in second-class handling — or even steerage — for everyone else. The most likely future of internet access in the medium-to-long term is increasingly wireless, so excluding that from fairness requirements could amount to a phase-out of neutrality. (It’s as if, on the eve of the broadband explosion, public policy restrictions had been limited only to dial-up connections — so as not to interfere with the development of broadband, of course.) And as Frank Pasquale predicts, it’s far more likely that this so-called public internet “will gradually decline in quality, so that it’s vestigial (like public broadcasting) or a poor program for poor people (a la Medicaid).” And I would add: have you tuned in to your cable company’s public access stations lately? I didn’t think so.

If that’s how Google and Verizon’s proposed bifurcated internet would develop — and I think it probably is — then innovators who actually wanted people to see their content or use their new tools would need to negotiate paid arrangement with powerful gatekeepers, often effectively monopolists. As Jonathan Zittrain sums up:

Google might well be able to pay — and then leave poorer content providers behind. The next two guys who want to start, say, ShmouTube won’t be able to do it if they’ve got to negotiate business development deals with one ISP after another in order to reach those ISPs’ subscribers. And that’s the real danger: when each ISP can, in effect, speak on behalf of its unwitting subscribers, serving as the troll under the bridge offering up different conditions for access to them, the economics of the Net will start to favor the consolidated, the well-connected, the well-heeled.

(My one amendment to JZ’s assessment is that Google certainly can pay — hence its defection.)

All that said, it is not enough simply to require equal treatment for every packet on the internet. On this blog last year, Derek Bambauer listed some of the many legitimate practices that might not be “neutral” in a simplistic sense, including various forms of spam and virus prevention. That’s exactly why this is an issue that requires consistent and nuanced regulatory oversight. Not surprisingly, VerizonGoogle wants a sharply limited role for regulators, despite their protestations to the contrary. Not only does the deal take wireless and “additional” services off the table, as noted above, but it also limits the FCC’s involvement to case-specific interventions against “bad actors” — and only after those cases have been considered by industry-led dispute resolution processes, to which the FCC should defer. An area this complex unquestionably requires detailed agency rulemaking. The “framework” explicitly says the FCC would be barred from doing just that.

So, there you have it. Google’s defection from the supporters of an open internet changes the political dynamics for the worse, opens the door to creation of a second-class internet for non-corporate content, and tries to disable the FCC’s ability to do anything about it. Your response? Write to your elected representatives (Public Knowledge has an online tool you can use to do so easily) and tell them that Google doesn’t speak for you on network neutrality any more.

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