Wise Public Policy Will Not Kill the Internet
Ever since the FCC launched its bold effort to update 20th century regulations to fit the 21st century broadband world, telecom companies have waged a relentless verbal campaign to persuade the public of the dire consequences that will occur if the Commission (or Congress) succeeds. Meanwhile, the FCC is rightly looking to mark the boundaries of its official jurisdiction when it comes to its oversight of the Internet.
The FCC is operating with its eyes wide-open; its statements suggest that it understands that over-regulation of the Internet could be harmful to future innovation, investment, and freedom. CDT believes the Commission's "third option" is a sound approach that acknowledges these concerns. That said, it is crucial for the FCC to recognize limits to its authority. The agency needs to expressly refute and disprove the common rhetorical telecom argument that any and all regulation poses a danger to the Internet. That argument is not only false as a matter of policy but is also a mischaracterization of the historical origins of the Internet. The Internet today owes its origins as much to wise public policy and regulation as it does to technological innovation and private investment.
But that's not the story the entrenched telecom companies are telling. They want you to believe that the Internet and all its advances are the result of corporate capital investment, measured in tens of billions of dollars, spurred by the deregulation of telecommunications in 1996. As they tell it, the long march from dial-up to double-digit megabyte fiber access in the home is the result of private initiative and government forbearance. Get the FCC involved in oversight of Internet access and the U.S. might as well kiss fast speeds, broader deployment, and wireless Internet access good-bye, these companies claim. The overarching theme here: the free market built the Internet and the free market will keep any sort of discriminatory practices at bay.
There's just one problem with the industry's story: It's a myth.
Back to the Future
The history of the Internet, as told by scholars and witnessed by participants in the policy debates (I am one of them), tells a different story. The end-to-end Internet that is open to anyone with a computer, mobile device, or new application, owes a great debt to government policy and direct government involvement.
We must remember that the Internet was birthed in government labs and built with government dollars. The government (principally at the Defense Advanced Research Projects Agency) funded the work of the technology wizards who transformed the computer from a data-crunching machine into a communications medium over a three-decade period (1960-1990). Based on public policy that innovation occurs when scientists and innovators are given a free hand, DARPA gave the wizards wide latitude to tinker and invent. And invent they did: packet switching;, file-transfer protocols; email; and TCP/IP, the protocol that creates the network of networks we call the Internet. All were invented at what one historian calls The Department of Mad Scientists.
By the mid-1980’s, the government found that the Internet had evolved from a military-technology platform to become both MILNET and a larger research platform with potential commercial applications. Instead of viewing this development with alarm, the government, with the support and encouragement of the Clinton Administration, Congressman Rick Boucher, researchers, commercial companies and cyberspace advocates, took steps to essentially privatize (through the creation of NSFNET and ICANN) and commercialize the emerging Internet. An Act of Congress in 1992 opened the Internet to “everyone.”
What allowed the Internet to take off on the telephone network at about the same time was also a direct result of government policy. When the TCP/IP protocol was still in the government lab, other wizards were building cyberspace colonies and other types of computer networks on that network. This was not because of the vision of the telecom industry. Far from it. Committed to central control and circuit switched networks, the telecom giants looked askance at these new computer networks. If the industry had a vision, it was a future fiber optic “Information Highway” with, to paraphrase Bruce Springsteen, “500 channels and nothing on.” While the telecom industry waited until deregulation to make this big investment in the future, government policy made it possible for the Internet to grow from the beginning. First, government policies in the wake of the AT&T breakup permitted third parties to “connect” to the telephone network without AT&T’s permission. Second, the telephone network was a “common carriage” network, based on a government policy of non-discrimination (think Internet Neutrality) that allowed anyone to connect to the network and communicate with everyone else on the network using the TCP/IP protocol. The WELL (Whole Earth Lectronic Link), Bulletin Board Systems (BBS), and commercial entitles like Prodigy used this government policy framework to join the Internet.
Because of government investment, commercialization, common carriage, and the right of anyone to connect – all of which were supported or enabled by government policies – innovation rocketed and commercial enterprise flourished, as companies scrambled to create new services and devices that allowed the mass market to connect to all manner of information platforms. Telephone lines buzzed as hundreds of thousands of households accessed these new services via "dial up" access carried on POTS (“plain old telephone service”). FCC oversight, far from being an obstacle, made this wonderful nascent era of the Internet possible.
In 1997, the Supreme Court truly made the Internet open and free when it struck down the Communications Decency Act (the only part of the telecommunications deregulation of 1996 that dealt with the Internet!) and ruled that, although the Internet was electronic, it was not a broadcast medium like radio and television and therefore was entitled to the highest speech protection guaranteed by the First Amendment. The coalition that we helped organize to bring this case constituted a diverse group of civil liberties groups, librarians, and, perhaps most important, the emerging Internet industry, including America On Line, Prodigy, and Microsoft. The telecom industry did not participate in any significant way in this challenge.
By overturning the CDA, the Court struck down government content regulation of the Internet; it did not question the regulatory framework (common carriage and third party connection) that helped distinguish the Internet from traditional mass media. The Court did not say the Internet cannot be regulated at all or at the transport level, but rather that government cannot broadly censor Internet speakers, readers, and those using the Internet to pursue a myriad of political, social, and cultural goals.
This history matters in the current debate over appropriate government regulation. It does not support the argument that ALL government regulation is suspect or would destroy the Internet. Quite the contrary. History suggests a positive role for government and underscores the importance of the questions before us. The Internet is no longer a common carriage network. Instead of many ISPs, we have two major broadband providers: telephone and cable. The Internet as we know it depends on openness and non-discrimination. Will it continue to be such a network? Can government policy help keep it so? We think it can. But we can’t have a debate that begins from the false proposition that government policy or regulation of any kind will destroy the Internet. History shows that this just isn’t so.
Jerry Berman is the founder of CDT and chairman of its board.