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.

Congress can’t regulate privacy on Facebook until it understands what drives Facebook

In the movie Star Trek: The Undiscovered Country, the crew of the Enterprise had a dilemma: how to detect and destroy a cloaked Klingon ship.  After a few minutes of debate among its senior officers, Commander Uhura makes the observation, “Well. The thing has got to have a tailpipe?”

It was clear from the questions that a number of senators posed to Mark Zuckerberg during a hearing on Facebook’s privacy policies that Congress has not yet located Facebook’s tailpipe. Facebook’s tailpipe is comprised of its subscribers’ demand for and willingness to use the social media firm’s platform. What is it about Facebook that causes subscribers to ignore existing albeit confusing and vague privacy terms and fork over to Mark Zuckerberg, Sheryl Sandberg, and the rest of the Menlo Park posse our inner most personal thoughts, our rabid political stances, pictures of our kids, and videos of young women twerking?

I have concluded from my own personal observation of behavior on the medium that it has a lot to do with attention. As an entertainment medium, two billion subscribers take the opportunity emit ego energy by posting the aforementioned twerking videos and kiddie pictures in order to draw attention to themselves. “Look at me! Look at my kids! Look at the European vacation I’ll spend the next twelve months paying for!” Contribution of free content by subscriber A serves Facebook’s business model well by providing the company with free content. This free content is used to grab the attention of subscriber B and if the algorithms are working, provided in such a way as to hold subscriber B’s attention long enough to make her a target for advertisements.

Subscribers A and B may become aware eventually that they are fodder for Facebook’s advertisement machine. Selling advertisement is how Facebook generates almost all of its revenues. What is it about Facebook that causes the need for attention to outweigh the willingness to ignore Facebook’s privacy terms?

The professionals cite a number of reasons beyond my amateur observations for moths being drawn to Facebook’s fire. One post in Adweek sums up some of the professionals’ findings.  One reason that Facebook draws attention is fulfill a need to belong to a group. You have heard the adage, that humans are social animals and this need for community has people gravitating to group pages on Facebook.

Feel like expressing yourself and receive near instant approval of the “you” that you share? Facebook provides its users plenty of opportunity for that. I have often likened Facebook as the dorm that Zuckerberg never left with a user’s profile being a dorm room and the user’s “wall” a bulletin board on the dorm room door where people can drop by and leave a post-it message on the door or the occupant can leave some zany flyer announcing the next beer party.

For students, Facebook is probably used to relieve stress. According to Adweek, students are worried about grades, writing papers, and dealing with professors and going online looking for reassuring likes may be helpful.

Courtney Seiter shared in a blog post how use of Facebook has an impact on our “reward centers”. The more likes we get from our sharing on Facebook, the more our nucleus accumbens lights up.

Also, the “likes” we share on Facebook are currency. Forty-four percent of Facebook users share the love on the content their friends provide by liking it, according to Ms Seiter.

For information theory buffs, the Facebook “like” button carries more information beyond a “yes” or “no” difference. Ms Seiter cites research that found that mining a decision to “like” a post can reveal information about race, gender, political persuasion, or age of the user.

Another piece of information that data on Facebook user participation provides us is on the level of loneliness. Students felt more connected, less lonely when they engaged on Facebook.

This is just a small snippet of the literature out there on why people use a social network like Facebook. The takeaway that is important to me is given what appears to be an emotional or social connection between users of the platform and that this connection is the fuel to Facebook’s business where the connection is so strong that users are not paying attention to Facebook’s disregard for privacy, how best can Congress intervene in this space?

Uhura might say, “Facebook’s got a tailpipe. Are you willing to syphon the gas?”

Will Congress regulate.@facebook like a public utility? Given its potential benefit to partisan politics, probably not. #socialmedia

The Wall Street Journal’s Holman Jenkins, Jr. posted an article last Friday about Facebook’s apparent maturity as a business given its focus on regulatory issues such as the potential of Congress to regulate the social media company like a public utility. Mr Jenkins points out that Facebook’s fear of regulation, a fear shared by other “tech” companies, comes from the attention that large companies draw to themselves as the result of centralization of power. In this case, Facebook is perceived as one of the few central nodes of power in the digital space (along with fellow FANGs; Amazon, Netflix, and Google). Issue is, does Facebook have a monopoly status that justifies “public utility” regulation. My answer is no.

The classic argument for regulating a firm as a public utility is that the public has an interest in benefiting from the use of the public’s rights-of-way including the efficiencies that flow from making such uses exclusive to one firm in a given territory. Electric and water utilities quickly come to mind when we discuss public utilities and rights-of-way. Would you rather see your streets and driveways dug up to provide multiple pipes from multiple water or electricity suppliers or would you rather one supplier who is forced to comply with a pricing model that creates a competitive price and rate of return on the assets used by the utility to produce a good? For the most part, society has settled for the latter. We don’t like the idea of having an excess number of utility lines running overhead or into our residences for aesthetic or safety reasons.

Does Facebook fall into this public utility model? No, it does not. According to Facebook, the company makes almost all of its revenue from the sale of advertisement. Facebook uses its algorithms to identify potential viewers of content or purchasers of services for its advertisers and display ads these ads to content viewers and services purchasers in exchange for an advertising fee. Ad services, including the delivery of advertisements to consumers, by Facebook’s admission is a competitive business. Unlike electricity transmission and distribution, ad delivery is not a monopolized industry. As Mr Jenkins points out in his piece, ads are ads, digital or otherwise, and Facebook is no where near dominating a $540 billion advertising industry.

Even if Facebook had a monopoly on the delivery of advertisements or advertisement services, would a regulator risk creating a state action by regulating Facebook’s advertising services? Bearing in mind that the latest buzz around Facebook ads was spawned by the delivery of advertisement messaging produced by Russian nationals allegedly designed to disrupt and defraud the American electorate, would Congress require that Facebook vet the firm generating advertisement content? Would Congress risk the overturn of legislation requiring Facebook vet advertisers if found violating the First Amendment?

I think that even advertisers confident that their messaging does not violate the public interest would think twice about placing advertisements on Facebook’s platform. More important, from the perspective of the regulator, an administrative agency would not to create the risk of creating First Amendment violations and having to defend those violations in court. As the U.S. Supreme Court held in Edenfield v. Fane:

“The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.” 113 S.Ct. 1792, 1798 (1993)

Finally, political parties may not want to impede the returns to electioneering that social media has been providing for the past decade. According to the Brookings Institution, since the 2008 national elections, political parties have been determining how best to convert the amplification and engagement created by social media during a campaign season into two-year and four-year governance.  Political parties have been encouraged to use social media in a number of ways including the following:

  • Acknowledging that the electorate is using social media as a “trust filter” of political news and information;
  • Realizing that politicians have decreasing control over debate topics and that control is shifting to social networks;
  • Making continued use of social media platforms to directly engage constituents;
  • Using social media platforms as “virtual surveys” of constituent sentiment and gauging feedback from the surveys; and
  • Leveraging ordinary citizens’ use of social media to persuade the electorate.

It is 2018 and Congress should view social media that has greater benefits as an electioneering tool if it is not regulated. From a regulatory perspective, there is no economic or legal justification for regulating social media as a public utility.

When the #internet was just for #academics….#broadband

Democrats are wary of Facebook, Google, and Twitter. Hillary Clinton’s loss in the November 2016 elections allegedly compounded by a misinformation game played by the Russians via social media has the Democrats in Congress asking themselves if a little more transparency i.e. regulation of social media practices is necessary in order to prevent any more shenanigans from Russia.

In the net neutrality debates, Democrats and grass roots progressives have taken the position that due to their gatekeeper position, internet access providers such as AT&T, Comcast, and Verizon are in a position to negatively impact the innovative internet portal and social media services that Facebook and Google provide. Democrats argue that we don’t want to discourage the creation of the next Facebook by allowing Comcast to throttle speeds from potential upstarts or block a consumer’s access to the new Twitter. Now these members of Congress appear a bit wary of the cat that they have been snuggling up to; being scraped by the FANGs (Facebook, Amazon, Netflix, Google) is not fun.

What I find ironic is that these congressmen were no where to be found as the FANGs were busy building a business model on acquiring consumer data from the droppings that consumers leave all over the internet. This data collection didn’t impact the politicians, who thrive on political intelligence so having a master information collector or two on their donor page didn’t hurt. It wasn’t until the FANGs messed with the source of a politician’s livelihood i.e. the vote, that the FANGs fell under deeper scrutiny.

It is up to the individual to choose whether to use FANG services. I have little to no use for Facebook myself. Amazon, Google, and Netflix deliver pretty much what they promise: logistics and content. What’s amusing is that highly educated, professionals in the Congress have yet to figure out the business model that social media relies on for its survival.

I think it is best that the internet go back to what it was meant to be: a way to connect information seekers with data. The irony is that internet service providers have been providing their networks as a part of the larger data transmission scheme for over two decades but seem to be catching the most heat from congressmen that support the companies providing the most abuse.

Google and Facebook: When humans are the fuel for social media farms

For several weeks, social media firms Facebook, Google, and Twitter have faced scrutiny from media and Congress over their alleged facilitation of Russian messaging during the 2016 presidential elections. Nitasha Tiku shared last month in an article for WIRED how social media companies have been catching heat from both sides of the aisle for allowing Russia-based or backed entities to buy ads on their platforms and direct subscribers to messages designed to misinform, mislead, or otherwise influence readers.

Facebook, Google, and Twitter are leaders in the “attention economy“, where social media companies buy (more like hack), package, and sell the attention they glean from their subscribers. Keeping your attention is their business, keeping it in sufficient quantities to attract advertisers who wish to market product to you. Attention, not information, is in short supply. That is the true gold nugget.

Congress, while not having yet passed any significant legislation, is still scrutinizing how social media companies manipulate consumer behavior. For example, today the U.S. House energy and commerce committee has a hearing on how companies use algorithms when making decisions on consumer behavior. This should provide some insight on where Congress wants to go next on the issue.