Google and Net Neutrality: The Made-Up Dramas of the Wall Street Journal

By Lawrence Lessig, Internet law professor at Stanford University, in response to the Wall St. Journal article this morning on Google and net neutrality (republished under CC licence):

• • •

I got off the plane from Boston to find my inbox filled with anger about an article in the Wall Street Journal. To those who were angry, I hope you will direct any anger at the Wall Street Journal after you read what follows.

The article is an indirect effort to gin up a drama about a drama about an alleged shift in Obama's policies about network neutrality. What's the evidence for the shift? That Google allegedly is negotiating for faster service on some network pipes. And that "prominent Internet scholars, some of whom have advised President-elect Barack Obama on technology issues, have softened their views on the subject."

Who are these "Internet scholars"? Me. And of course, because I have "softened" my views about network neutrality, and because I advised the Obama campaign about technology issues during the primary, it follows (and obviously so) that Obama too must be going soft on network neutrality.

I don't know what Google is doing, though if they are trying to negotiate exclusive deals for privileged access, that shows exactly why we need network neutrality regulation. (Though note, the article doesn't say the deal Google was striking was exclusive).

And I've not seen anything during the Obama campaign or from the transition to indicate it has shifted its view about network neutrality at all.

But I do know something about my own views, and what the Journal has done here is really extraordinary.

It is true, as the Journal reports, that I have stated that network providers should be free to charge different rates for different service -- "so long," the Journal quotes, "as the faster service at a higher price is available to anyone willing to pay it."

But the whole punch of the story comes from the suggestion that my position is something new. As the Journal states,

Lawrence Lessig, an Internet law professor at Stanford University and an influential proponent of network neutrality, recently shifted gears by saying at a conference that content providers should be able to pay for faster service.

And:

Stanford's Mr. Lessig, for one, has softened his opposition to variable service tiers.

Missing from the article, however, is the evidence that my view is a "shift" or "soften[ing]" of earlier views. That's because there isn't any such evidence. My view is the view I have always had -- whether or not it is the view of others in this debate.

For example, in April, 2008, I testified before the Senate Commerce Committee. This is what I said:

As I testified in 2006, in my view that minimal strategy right now marries the basic principles of “Internet Freedom” first outlined by Chairman Michael Powell, and modified more recently by the FCC, to one additional requirement — a ban on discriminatory access tiering. While broadband providers should be free, in my view, to price consumer access to the Internet differently — setting a higher price, for example, for faster or greater access — they should not be free to apply discriminatory surcharges to those who make content or applications available on the Internet. As I testified, in my view, such “access tiering” risks creating a strong incentive among Internet providers to favor some companies over others; that incentive in turn tends to support business models that exploit scarcity rather than abundance. If Google, for example, knew if could buy a kind of access for its video content that iFilm couldn’t, then it could exploit its advantage to create an even greater disadvantage for its competitors; network providers in turn could deliver on that disadvantage only if the non-privileged service was inferior to the privileged service.

That's the same thing I said to the FCC in its hearing at Stanford. You can hear what I said beginning at minute 18:20 here. There I distinguish between "zero price regulations" (such as Markey's bill (which I say I am against)) and what I called "zero discriminatory surcharge rules" (which I say I am for). The zero discriminatory surcharge rules are just that -- rules against discriminatory surcharges -- charging Google something different from what a network charges iFilm. The regulation I call for is a "MFN" requirement -- that everyone has the right to the rates of the most favored nation.

This is precisely the position that the Journal breathlessly attributes to me today. It represents no change -- no "softening" no "shift" in my views.

Now no doubt my position might be wrong. Some friends in the network neutrality movement as well as some scholars believe it is wrong -- that it doesn't go far enough. But the suggestion that the position is "recent" is baseless. If I'm wrong, I've always been wrong.

Comments

[Dave Burstein:]

Larry

For most practical purposes, including the debate over net neutrality in the U.S., you're "wrong." It turns out that any decent large network (with the possible exception of some cable upstream) has so much capacity that few if any should need to pay for a higher quality of service. Our Verizon DSL line is rock solid at 3 meg down, pretty good proof that a network not needing quality tiers is practical. Tom Tauke of Verizon, Jim Cicconi of AT&T, and Sally Davis of BT have all publicly confirmed that their networks can handle the load and therefore can be essentially neutral. I've confirmed that privately from inside several other networks. (Smaller carriers may have backhaul and peering issues.)

So in principle your reservation about non-discriminatory versus open access is perfectly sound - and echoed by Tim - it should be uninteresting at best in the practical world. Any large DSL carrier in North America can and should offer standard service that delivers a 3 megabit stream from their peering point to each home with any degradation. Verizon and AT&T do that every day across most of their network.

Making a lawyer's theoretical point on this leads to easy misunderstandings and deliberate distortions. I'm in no way disagreeing with you in theory, but think it important to add in any conversation that these issues of "non-discriminatory service differences" are irrelevant in most consumer broadband networks.

You've seen the confusion that comes here, with a reporter (admittedly a sloppy one) taking your theoretical comments and using them for something you didn't mean in the real world.

"Net neutrality" was a brilliant piece of work, that allowed some precise codification and was necessary. But the limits of that concept are also important. NN is a means, not an end. The goal, as you've often eloquently described, is something more like Internet Freedom.

If you have time to follow up, touch base with me [e-mail]. I think that not being very careful in how the issue is framed is ready to come back and bite us at least in some places.
Dave Burstein

2008 Dec 15 11:55 AM