Life on the fast lane. In defense of net a-neutrality

Tomorrow, the European Parliament (EP) will decide about new net neutrality rules for the European Union (EU). Net neutrality has been subject to many debates around the world, not just since the introduction of net neutrality rules in the United States in spring 2015. Also, as it is often the case, debates about net neutrality are not always about the same subject. Here, when using the term “net neutrality” I refer to the question of “how data packets should be transmitted over the Internet” (Knieps & Stocker, 2015, p. 46), where net neutrality demands that “traffic service providers should be obliged by regulation to treat all traffic and thus all data packets equally” (Knieps & Stocker, 2015, p. 46). One of the main consequences of net neutrality is that there could be no “fast lanes” in the Internet. To see this imagine there would be no regulation at all: service providers would then be free to charge content providers for transmitting their data, should they be demanded by internet users (i.e. users visit these sites), faster than data from competing or non-paying content deliverers. I will refer to a state where no regulation exists or where net neutrality is explicitly ruled out as a state wherein there is “net a-neutrality”. In the case of the proposed EU legislation, critics hold that although fast lanes are prohibited, they become possible through the backdoor because certain services can be classified as special service for which fast lanes are permitted.

Here I want to briefly raise a couple of general worries with the idea that net neutrality is good and a-neutrality is bad. I will not address all problems and criticisms but focus on the problem mentioned above, that net a-neutrality introduces fast lanes. For instance, I will not take issue with a modified version of net a-neutrality where different data categories deserve different prioritization. What I will focus on is merely the idea, often heard in public, that fast lanes and commerce in the Internet world is bad.  To do this I will take issue with and comment on a range of topics brought to the table by internet researcher Barbara van Schewick who has repeatedly given some backing for critiques of the European net neutrality regulation about to become law.

 

First, net-neutrality supporters such as van Schewick often claim that creating the opportunity to offer fast lanes will eventually suppress freedom of speech and expression, it will ban NGOs and other societal actors from providing their valuable knowledge to society. For suppose a service provider such as Telekom would charge an extra fee for fast lanes so that company Buy-Me’s data would be transmitted faster than those of NGO Help-You. Van Schewick holds that “start-ups, small businesses, non-profits, educators, artists, musicians, writers, activists, faith groups, and NGOs would be at a disadvantage” because they cannot afford to buy fast lanes. Therefore, “’Fast Lanes’ on the Internet harm innovation, free expression, and democratic discourse”, says van Schewick.

However, I do not think that this is a particularly good objection to net a-neutrality. First of all, even though Help-Me’s content might load more slowly in your browser, this does not necessarily mean that it loads too slowly. It all depends, of course, on the existing and usable bandwidth. But even if it does in fact load less fast, it might still be okay for you to visit that page.

In addition, nothing prevents Help-Me from trying to get funding and spend existing resources to buy one of these fast lanes. It is an all too common rule of the game to spend one’s available resources for getting public attention, for whatever business one has. Sometimes NGOs are supposed to be more valuable or morally praiseworthy than businesses, and this might in certain cases certainly be true. But we have to keep in mind that NGOs (or churches, or private blogs, for that matter) are simply part of the social or human game to change the world, help people, make one’s living, provide services and so on and that there is no moral supremacy of NGOs over any other societal actor, at least not independently of the content of an NGOs goal. Imagine a Nazi website or a Nazi NGO, let’s call it Extinguish-You. Would we be willing to ensure that Extinguish-You should have a moral supremacy so that their data must not be disadvantaged independently from its content? I guess the answer is “no”.

Furthermore, net a-neutrality as I understand it would add competition in our societal actors’ attempt to gain public attention. And don’t we know that competition has in fact the feature that it brings us innovation and progress? Perhaps net a-neutrality would force Help-You to find new ways to publish its knowledge, or at least to get funding for buying a fast lane. Perhaps they reach our more to real people, they advertise with Netflix that, let’s suppose, was able to buy a fast lane. Of course, we cannot predict a particular outcome of the competition that results from banning net neutrality. But what we can say is that it is highly likely that innovative forces will excel under competitive rules.

Moreover, as free speech is often mentioned in debates about net neutrality it must be said that outside the Internet, free speech is also closely tied to non-neutral instruments, mechanisms and forms of speaking. For example, newspapers as a very common form of speaking to the public and shaping public debates, are also not neutral in the sense that they would not work under competitive and ideological conditions. Or consider private associations (i.e. associations consisting of individual members) that come together to support a certain ideology. All of these instances of free speech depend on private and thus not neutral mechanisms. They depend on the ideology of the owners, writers, speakers and so on. Murray Rothbard, in his excellent “The Ethics of Liberty”, argues for thinking about the right to free speech as a property right. Each and every person (or newspaper, or restaurant owner) can say and allow others to say whatever she wishes simply because it is part of her property to speak out what she thinks on her premises. Additionally one might even say that there is no ideology-free speech or viewpoint, as there is no moral supremacy of anyone’s interests, at least as the political organization is touched. This means: Although I personally reject Nazism and think that holding Nazi views is immoral, I cannot say this from an ideology-free point of view. I even cannot claim moral supremacy when it comes to organizing a political order. I do fight for a political order free from Nazi ideology (and so should everyone), but I cannot claim ideology-independent moral supremacy, e.g. in the form of a neutral state that does his business according to my supposedly ideology-free point of view. What this means for net neutrality is that it is impossible to qualify certain contents as being eligible for being protected by net neutrality because they must not be disadvantaged because of their status as super-moral or ideology-free (as opposed to all other viewpoints that are thought to be ideology-laden).

 

Second, in addition to the first point that focuses more on the democratic discourse and free speech, van Schewick also thinks that net a-neutrality reduces opportunities for small start-ups. In other words, only net neutrality can secure innovation and progress.

To respond note that I have already mentioned that net a-neutrality actually enhances competition and thus provides innovation and progress in the case of actors from the NGO field (being in competition with businesses). This holds equally true in the case of businesses being in competition with other businesses, and it holds true in the case of competition between service providers. Imagine that Telekom charges too much for Help-Me. Wouldn’t this be an incentive for Komm4All, a competitor, to examine new ways to provide access to the Internet? And against the view held by net neutrality opponents, isn’t it the case that elsewhere in our economies prices for services to a company are being incorporated in anyone’s business decisions? And: prices do not restrict business activity, they rather enable it. My argument is twofold: Charging prices for a service is actually something that happens in other domains of the economy, outside the Internet, and pricing things does actually a very good job. Anyone who wants to run a business, offer a good or a service, is in need of calculating costs and benefits, and if one wants to run an online business under net a-neutrality, the business owner will incorporate the price for getting a fast lane (vs. a slower lane, for example). And this will provide her the best information available on what to do with her resources. This is what happens daily, and not just that: it serves a good end, as Nobel-prize winner Friedrich August von Hayek has found out. Prices are indispensable for coordinating mutually beneficial behavior known as market. Why would a price for lanes in the Internet be so different?

Furthermore, there is a lot of speculation involved in making claims about the negative effects of net a-neutrality. Van Schewick, for instance, writes: “Many of today’s most popular applications — Google, Facebook, Yahoo, eBay — were developed by innovators with little or no outside funding. In a world where such innovations are stuck in the slow lane, they would never have seen the light of day”. Well, that might be true – or not. The point is: we simply do not know. What we know instead is that prices and market competition typically tend to promote innovation, growth and progress, and there is no need to assume that this is not the case with the Internet. It is unfair to speculate about the existence of Facebook and Google in an imagined world without net neutrality and to derive conclusions for the real world based on these speculations.

 

Third, let me add a word on the notion of freedom because it seems that freedom is used very often to justify net neutrality. The freedom of speech and of NGO activity is threatened by net a-neutrality, we read, and the freedom of small enterprises to enter the market. But it seems that it is not freedom in its fullest sense that plays a role. To see this note that there is one freedom that is reduced, and that is the freedom of the service providers. Now, it is clear that freedoms can and must be reduced given the social and interactive nature of our living together. One’s freedom stops where the other person’s freedom begins, so we say. But the point I want to make here is another one. It seems, so I want to argue, that it is only certain specific freedoms that count as valuable, and economic freedom is not among those cherished. This is exactly what John Tomasi has shown in his “Free Market Fairness”. There he argues that liberals from the left (e.g. John Rawls) typically think that basic freedoms must be granted as a matter of justice, but that these freedoms do not include economic freedoms so that certain restrictions on one’s economic activities are justified with reference to justice. I think this is exactly what we see in the discussion about net neutrality: Opponents justify restrictions of the economy with the help of justice-based freedom. Freedom of speech is part of the story, but economic justice is not, so that we can permissibly restrict the economy for the sake of justice. In his book Tomasi argues for including economic liberties as a matter of justice, because this is part of what we do value as part of our justice-reasoning. Taking this seriously (and applying it to the case of net neutrality) it would mean that we would have to re-think our stance towards the freedom of service providers to charge (or not to charge) money for the services they provide – as a matter of justice.

 

The points just mentioned and discussed are by no means all there has been discussed in relation to net neutrality. But the problem of fast lanes is frequently mentioned when it comes to rejecting net a-neutrality and it figures prominently in popular accounts of net neutrality. I hope to have shown that the arguments invoked are not as strong as the intuitive noblesse of the idea of neutrality might suggest. Let me, however, close with two more points that I cannot address in a more detailed manner at this point.

The first is to say that net neutrality regulation can be analyzed in terms of a very elegant and powerful theory of regulation, i.e. the Bootleggers-and-Baptist-theory. The idea behind this theory is that regulation is often successful when two specific parties team up, intentionally or not, to provide a large supporting basis for a certain piece of proposed regulation. On the one hand, representatives of a widely supported moral goal or ideal (the Baptists) argue for a certain kind of regulation. On the other hand, when some parties with an economic stake in the issue (the Bootleggers) join the Baptists, they can provide the necessary money and other instruments to convince politicians to pass a law according to the shared interests. Take, for instance, the case of prohibiting Marihuana: both representatives of, say, churches and the alcohol industry will vote and lobby for legislation that prohibits Marihuana. The former group provides the moral ideal, whereas the second group benefits directly and contributes the instruments to convinces legislators. I guess it is not hard to identify Bootleggers and Baptists in the case of net neutrality: electronic freedom fighters, valuable as they are, provide the moral ideal of neutrality, and companies that fear competition through net a-neutrality provide the necessary means to convince law-makers. It is thus of no surprise that large companies such as Netflix and others support the campaign for net neutrality (well, sort of, at least with Netflix the issue isn’t as clear as one might wish).

The second point relates to a more fundamental idea. We are so accustomed to the fact that we have lawmakers that decide in our name in for the sake of a higher, a noble good or ideal and thus do what is best for us that we do not see how problematic it is what they do. The main problem, in this view, with net neutrality is not that the Internet is neutral and that free speech as well as direct democracy and full information for everybody reigns. The problem rather is that there is a body of people who think they can restrict voluntary interaction, evolving processes, contracting, mutual benefit and cooperation because the assume they have political authority. I would just say that regulating Internet commerce and interaction is simply not something a bunch of people in capital cities can and should decide upon. It is the partners to the interactions taking place that can and should decide upon the rules governing their interactions, not politicians in Berlin, Brussels, Strasbourg or Washington. They must not because they lack political authority to do so. And they should not because we know so well from Public Choice literature, among others, that those people are not in the position to decide what’s best for us. But to show in detail how this affects net neutrality is another issue.

 

To sum up: The specific rules the EP is about to decide upon have seen a lot of criticism, mainly because they allow, in the eyes of the opponents, for too much net a-neutrality. More generally speaking, there is a large coalition of supporters of net neutrality all over the globe. In my view, the reason for this is partly to be found in the presumably noble idea of neutrality as such and a more general rejection of commercial activity and capitalism that is considered to take over once net neutrality is banned. Net a-neutrality is supposed to be bad because large companies and more broadly agents with profit-only interests will rip customers off, they will suppress free speech and we all will hear only those opinions and truths that the oligarchy of large companies will want us to hear. Well, good ol’ anti-capitalism. Doesn’t the idea of a neutral net sound so much more noble, morally praiseworthy and desirable, now that we have found, with the Internet, a means to meet and speak up in freedom and openness, bringing us closer to the truth, morality, God or what have you. I hope to have shown that this reasoning is flawed.

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