A market-based, voluntary open internet, privacy regime is doable

The best protection on the internet is self-protection and a self-protection regime does not have to be implemented via any additional government rules. Rather, for a subscriber to broadband access services provided by an internet service provider, the subscriber should avail themselves of the opportunity to enter into voluntary agreements as to the level of privacy and open internet protections they wish to purchase. The discussion regarding the confusing legal verbiage of written terms and conditions offered to a broadband access subscriber by an ISP should raise the question, “Would transparency best brought about if negotiation of agreements were more bilateral in nature?”

Before delving in any further to the primary question, let me attempt to dispose of one other question that arose in your mind when I posed the first question. “Do people have time to negotiate an agreement for broadband access services?” My response: “Why not?”

Advocates for net neutrality rules captured in the Federal Communications Commission’ 2015 Open Internet Order argue that broadband is now an essential part of the life of the individual and that today’s economy is robust because of high-speed access to the internet. Broadband access, the advocates would argue, should be treated like a utility service given its importance in sustaining the household.

Some would argue that broadband access does not arrive to the level of human necessity, no matter what a number of international organizations have argued.  Among those in disagreement with the “broadband equal to a utility” argument is FCC member Michael O’Rielly, who on a number of occasions has clearly expressed that people do not need broadband to live.  Mr O’Rielly is not alone in his assessment. His two other Republican colleagues, FCC chairman Ajit Pai and FCC member Brendon Carr also agree that 20th century treatment of a competitive 21st century technology such as broadband should not be regulated as a utility.

But for the sake of argument, let us say that broadband access arises to the level of a utility service. If it is that important to life, why would you not negotiate its terms and conditions?  During a negotiation for broadband access, more than likely the ISP would offer some canned language describing minimum services with a list of add-ons and opt-ins for the subscriber to voluntarily agree to. The ISP may offer different tiers of service where each tier provides various levels of privacy protection, transparency, and options for download and upload speeds. If technology permits, there could even be allowance for traffic from chosen websites that receive priority.

In the end, a subscriber’s willingness and ability to pay for different tiers of service will determine the level and amount of privacy and openness she receives on the internet.

I think an answer from the second question provides an answer to the first. Negotiating terms and conditions of service should lead to more transparency because the consumer had a direct hand in creating her services package.  The subscriber would have first hand knowledge about the amount of privacy protection she has bargained for.  But the direct hand in negotiating agreements requires the subscriber’s willingness to educate herself on how her product works. This is a level of knowledge that consumers fail to obtain because they may consider gaining that knowledge to expensive and time consuming. Hence their love for consumer protection agents. They can punt the responsibility of an alleged important, utility style service to them.

Why is net neutrality a partisan issue and how is it negatively impacting privacy rules?

Net neutrality shouldn’t be a partisan issue. The internet isn’t a government agency even though a number of governments around the world would like to restrict their citizens access to it and regulate the content that flows through it. If the internet, as it is viewed in the United States, is a means by which liberty, equality, and democracy intersect and are expressed, then shouldn’t the Republican and Democratic wings of Congress unite on those three pillars of American society?

Is there any contention in the area of liberty as it pertains to the internet?  It does not appear that way. The left replaces the word “liberty” with “freedom” and sticks pretty close to the traditional wording of the open internet, meaning no blockading of consumer access to the legal content of a website.

The right would agree with the left that consumers should be able to access the legal content of their choice. This issue goes to the fundamentals of conservative philosophy, liberty.

Regarding equality, I see contention. On the left, equality on the internet means that traffic from one website is treated the same as traffic from another website. A broadband access provider should not be allowed to throttle a site’s traffic prior to delivering the traffic to a consumer. The principle of equality would also hold, according to left internet philosophy, regarding the issue of paid prioritization. Paid prioritization occurs when a content provider pays a broadband provider for the privilege of special treatment of its traffic. The broadband provider may provide the content provider with “faster lanes” or some other privilege that grants that content deliverer’s traffic some priority over other traffic.

The right may not necessarily disagree that paid prioritization grants a one provider an advantage over another. Whether that advantage is fair or merely a valid business decision is the question and if the decision to provide priority to one type of service versus another is reasonable, then why not?

Prioritization occurs every day. Take the example of packages sent via a common carrier such as the post office. A consumer of postal services has an option of paying to send mail via regular mail or by priority mail, getting his package to its final destination within the next one or two days. The content of the mail may be such that rush delivery is of the essence.

Taking a flexible approach to prioritization may be in keeping with varying demands of different applications. In its recommendation for bipartisan legislation on net neutrality, the Information Technology & Innovation Foundation noted that:

“Legislation should allow clear flexibility for traffic differentiation for applications that require it, avoiding an overbroad flat ban on prioritization, while clearly prohibiting anticompetitive conduct. Legislation should put some restrictions on paid prioritization to limit the potential for abuse, such as a simple ban on exclusive dealing or a requirement
to offer similar terms to all customers.”

Finally, the left has made vigorous arguments that broadband access providers have the potential to threaten democracy on the internet because of their technical capability to block and throttle traffic. This potential bad behavior would restrict a consumer’s ability to choose or produce the content of her choice.

While conservatives may empathize with the self-expression argument, I would expect a two-pronged rebuttal. First, since broadband access and the internet (for the most part) is a private, commercial enterprise, there is no state action intervening in a citizen’s right to participate in the political process. That alone should make the concerns about democracy moot. Second, it is not in a broadband provider’s best business interest to discourage the use of its network. The more users and more traffic exchanged, the greater the revenues and profits and lower the operational costs of the network.

Given the heightened concern over the last two years about privacy on the internet, the left and right wings of Congress should use the need to bring certainty to privacy as a catalyst for closing the philosophical gaps in the vision for the internet. Privacy is being placed on the backburner which is unfortunate because while most consumers are fine for the most part with the internet as it is (growth in ecommerce is one such indicator of the internet’s health), codifying net neutrality principles, general principles that the left and right agree with, in the form of a statute plus providing bright-line rules on privacy and privacy enforcement will bring certainty to consumers of broadband services as to a safer internet and certainty to broadband providers that wish to continue investment absent the nightmare that a back-and-forth that the current regulatory framework creates.

Is broadband access less about connectivity and more about individuality?

My sister recently experimented with Whole Foods‘ delivery service. As an Amazon Prime member, she could take advantage of no cost delivery to her home in the West End. This is a smart move on the part of Whole Foods to deliver to the West End, an area where the median household income is lower than the rest of Atlanta’s sectors. My observation has nothing to do with the wishful thinking that Whole Foods is practicing altruism, but the probability that Whole Foods is betting on the continued gentrification of the area; that it makes sense to plant a flag in the area so that when higher-income, cheap rent seeking young white couples move into the area, Whole Foods will be there to greet them. And while increasing the area’s investment value may not have been on the top of Whole Foods’ agenda, current property holders can at least tell their friends living in other areas of the city that they have not been left out of high-end food delivery options.

Going online and ordering your groceries is an example of what the long-term purpose of broadband connectivity is all about, especially for those with capital. If we accept the Facebook model of broadband and the internet, then we support the argument that broadband and the internet are about connecting people for the sake of creating a larger global community that leads to more democracy, peace, and understanding. This is one of the premises underlying net neutrality; the creation and maintenance of an open internet.  Two billion people connecting on Facebook may be deemed evidence that the globe is demanding this type of connectivity and community development on the world wide web, but such a view fails to account for the “politico-economic physics” of broadband and the internet. I believe the true value of broadband access lies in the empowerment that broadband access creates in the individual. The universe revolves around her and not the other way around.

The internet, at least for those with capital, is about bending the four-dimensional characteristics of space time and enhancing her sovereignty; creating a self-sufficient lifestyle for her. High value individuals don’t see the platforms upon which they move through space and time as flat or linear. The platform is geodesic; a curved line that provides the shortest distance between two points. In this case, between capital and the products and services that capital can acquire. The closer broadband technology brings her to sources of goods and services, the tighter her enclosure around her. She is not creating inclusiveness, or a bigger tent. In actuality, her tent becomes tighter, filled with other high value resources including friends and business associates. Creating a sovereignty blocks out the noise that the internet is becoming increasingly known for.

I would argue further that as her capital and value grows the more space-time bends around her. She creates a gravitational pull attracting even more resources, income, and opportunities. Those who argue for equality and democracy on the internet overlook this important value element. High value, capital holding consumers on the internet bend space-time toward them and high value content and service deliverers will point their commercial starships in the direction of high value.

How should policy react? It can either acknowledge the individual’s use of broadband to create a sovereign individual while transmitting her consumer energy into her tight commercial space or it can regulate her relationship with the points of commercial light within her internet space and risk forcing her to engage with value deficient “black holes” that threaten to reduce her incentive to engage in e-commerce or change her engagement in such a way that the value she receives and transmits is reduced. Policy should opt for protecting her choice for engaging with the value providers of her choice.

The President’s 5G public works project

It is election year and President Trump is signaling that he is well aware that priming the economic pump to quench America’s thirst for growth in the economy may buy him some political capital while helping his fellow Republicans in the Congress and maybe a few Republican governors and state house members retain their seats. Today’s latest political proposal: construction of a nation-wide 5G communications network by the federal government.

Reuters reported earlier today that among the Trump administration’s initiatives to address potential Chinese hacks of America’s communications systems is the construction of a 5G network by the U.S. government. According to the report, the idea is still being considered among lower ranking staff within the Administration and proposals may not get to the President for another six to eight months.

Federal Communications Commission chairman Ajit Pai was quick to respond this morning to the 5G proposal. Mr Pai argued in his brief statement that construction of this latest generation of high-speed communications network was best left to the market. Rather than going down a costly and eventually unproductive path, the chairman recommended that federal policy stay the course and focus on getting more spectrum, that portion of electromagnetic waves necessary for making calls and moving mobile data, into the commercial space.

Again, Mr Pai demonstrated that he is one Republican that attempts to be practical.

Progressives haven’t come out one way or the other …. yet. Progressives have thrown support in the past behind the idea that initiatives on the part of municipalities to build their own broadband networks, premised on the need for access to affordable broadband in the face of a lack of supply by large carriers such as AT&T and Comcast. On first blush, Mr Trump’s idea seems to be nothing but municipal broadband on steroids, just on a national level.

I doubt, however, that advocacy groups like Public Knowledge or Free Press are going to jump on the opportunity to provide Mr Trump with any favorable optics on this issue. The last thing progressives want to risk is giving the Administration any type of lifeline that would help pull Mr Trump’s popularity into the respectable zone.

Mr Trump could have used the opportunity to make a political play based on economic stimulus a nation-wide project like this could provide. He could have sold it like his version of the Hoover dam, especially in rural or mountainous areas where broadband companies have dared not tread because of sparser populations and rough topography. The Deplorables in flyover states and the Forgotten that inhabit the insular territories of the Caribbean and the Pacific would have warmed up to Mr Trump’s goody bag of 5G services by 2021,especially if the idea is sold as another job creator.

Mr Trump will have to sell broadband access providers on the idea of falling on their swords and taking one in the national interest. According to NCTA, broadband providers have invested $1.4 trillion in constructing and deployong broadband networks. The cable industry alone claims to have made a $275 billion investment in broadband infrastructure.  They are not about to tell investors that future returns on this investment are about to be pushed aside by a public works communications project designed to keep China from eavesdropping on two ex-college room mates talking recipes for peach cobbler and the latest #MeToo campaign.

ISPs got there first. Let it go …

People and associations protesting against the Federal Communications Commission’s reversal of its network neutrality rules are really railing against the fact that current large broadband access providers entrenched themselves between the consumers of communications services and global networks in some before anyone else could. AT&T, Comcast, Charter, and Verizon used private capital and government charters and licenses to carve out territory within which they deployed the networks that connect consumers to that near invisible cloud of interconnected computers that we call the internet. I can’t hate on them for being first.

Net neutrality rules proponents want to dampen this advantage by preventing broadband access providers from blocking traffic from particular content providers; preventing broadband providers from slowing down the speed at which data flows from particular content providers; prohibiting content providers from entering agreements with broadband providers that allow a higher priority be placed on a particular content provider’s traffic; and making transparent to consumers the management practices of broadband providers including pricing, terms, and conditions of service.

The irony of these rules as proposed by allegedly freedom loving advocates is that they are designed to restrict how broadband access providers are to ascertain the value of the traffic that they are requested to transmit across their networks. Businesses assess the value of product, services, goods, information coming across property for determining how much of that value they can extract for themselves. The value extracted hopefully covers the cost of doing business plus profit. Broadband access providers do the same thing, assessing the value of the digital traffic coming across its networks and extracting value in the form of compensation. The greater the value, the greater the compensation.

On the consumer side, how she evaluates value is subject to her personal marginal utility of benefits, to coin the standard economic phrase and accompanying argument. To her, watching African American women twerk at a party on Instagram brings value, but should a doctor consuming video traffic that documents surgery have to risk her video running at a slower speed than a twerker’s in order to comply with a faulty notion of equality of content?

My bias is toward information that actually results in societal improvement, and while I have no problem enjoying the female form, society as a whole gets more mileage where information that helps us better manage our capital and health takes a priority to a cat video or gyrating ass.

Society also gets more mileage where producers and consumers are free to determine what communications they exchange and the terms and conditions of that exchange. This is the problem when we don’t separate content, which is designed to keep people momentarily contented, with information, which should be designed to continuously inform. We have a lot of content floating across our global interconnected networks, and network neutrality rules proponents use the freedom of expression argument to ensure this content gets equal treatment. Prioritizing content on the internet should not be looked at as an attack on freedom of expression, not when there are other outlets available for expression.

What the network neutrality rules proponents always leave out of their argument is the value of the expressions being shared. If they are that serious about their voices being heard over a particular medium such as the internet, then maybe they should put together the capital and construct the technology that ensures their equal access or expression.

Net neutrality rules proceeded from a no value premise

Back in the early 1990s, a higher value was placed by the consumer on her use of the internet and the dial-up services that were used to access it. It was expensive paying either per use or per minute or hour or day depending on your AOL package. The analog telephone service sometime required additional toll fees to access online providers. You didn’t take for granted your time used to access or be online. You made a cost=benefit analysis regarding the time online and paid for the value of the information you retrieved.

Our perspective on value for being online has changed. We have gone from waiting till after 9 pm or weekends to make a long distance call in order to save on toll fees to having bundled wire or wireless services that have eliminated toll calling. You no longer wait minutes for a 100-page document. Such a document can be downloaded in and shared with others around the globe in seconds. Our appreciation for the cost of being online has fallen so low that a significant number of Americans believe that using online resources to transmit videos of singing cats has equal value to data containing vital procedures for surgery.

Net neutrality has spawned the delusion that democracy requires equal treatment of all traffic, no matter how mundane, non-substantive, or perverse. It is time to reverse this perversion by imputing a value component to online access and data exchange. A crucial first step toward bringing back value is the repeal of the Federal Communications Commission’s 2015 open internet order and the no-value rules that it created.

True network neutrality cannot occur if agreements on the pricing of the exchange of traffic are overseen by the federal government.  Content delivery networks, internet information portals, and broadband access providers should negotiate traffic exchange freely and allow their assessment of the value of traffic exchange determine price. These carriers have data on the value the consumer places on their content and access services and can design the proper price points for recovering costs and generating profits.

For the end-use consumer, a day of reckoning will occur. Will they meet the new demand for price recovery issued by content providers by paying higher prices?  Or will they spend less time on the internet? Some may see value by paying additional fees to content providers. For those who don’t, they will threaten to abandon internet networks or reduce the time spent on them. This will provide content and network providers to become innovative by providing tiers of services that give the consumer additional flexibility on payment and usage.

In the end, network neutrality won’t “destroy democracy” on the internet. To be technical, democracy is about choosing political leaders and until we have elections via the internet, the democracy argument is nonsense. What we will have, with the elimination of these rules, is a conduit of commerce being subjected to market rules voluntarily entered into by its participants.