The Internet as we have known it is going to change -- the only question is how.
There's a fight going on over that question, and at stake is nothing less than
the Internet's potential as a medium for free expression, civic involvement, and
economic innovation. Unfortunately, unless the government changes course and begins
to restrain the increasingly concentrated power of the companies that sell Internet
access, the Internet's vaunted freedom and openness will dissolve as these private
interests gain leverage over our most precious communications medium.
Driving the change is the ongoing conversion by consumers from a dialup Internet
(based on slow modem connections over phone lines) to far-faster "broadband"
connections. With dial-up, Internet access is provided over a medium that provides
open, equal access to all: the telephone system. But with the shift to broadband
facilities like cable, Internet access must be adapted to systems that are far
more subject to centralized control.
Freedom of speech is of little value if the forums where that right is commonly
exercised are not themselves free. And the Internet is without doubt the most
vital and active such forum around today-a place where citizens can publish
their views to be seen by a few close friends or spread around the world; where
citizens can engage with others on thousands of bulletin boards and chat rooms
on nearly any topic, create new communities of interest, or communicate anonymously
about difficult topics. It is one of our top entertainment mediums. It is the
nation's most comprehensive, flexible, and popular reference work. It is the
closest thing ever invented to the vision of a true "free market"
of ideas that the American Civil Liberties Union and other groups work hard
to defend in so many contexts. As the Supreme Court wrote in 1997, on the Internet
"any person with a phone line can become a town crier with a voice that
resonates farther than it could from any soapbox."
At the center of the battle over the future of the Internet is the question
of whether it is a good idea for the government to impose regulations aimed
at preserving the openness of the Internet. In particular, the question is whether
regulators should mandate an "open access" policy that requires providers
to let customers choose among multiple, competing Internet service providers
(ISPs) over their broadband connections. Currently, more often than not customers
who obtain broadband service from, say, Adelphia Cable, must also pay for Adelphia
as their ISP; they cannot substitute any other ISPs. This raises the possibility
that a broadband provider could leverage its control over the on-ramp to the
Internet to interfere with the content of online communications.
This issue has emerged first with regard to cable Internet providers, because
they have been the first dominant providers not subject to openaccess regulations.
Several years ago, when the ACLU first engaged in the broadband debate, cable
was the dominant form of high-speed access. Today, the main alternative, DSL
(digital subscriber lines, which adapt regular phone lines for high-speed use),
has made substantial inroads, and several other potential alternatives loom
on the horizon. Among the 24 percent of adult Americans who have broadband Internet
access at home, 54 percent have cable and 42 percent have DSL.2 Over time, most
analysts expect citizens to continue gravitating toward broadband as they tire
of the slow pace of the Internet delivered over phone lines. As more citizens
do get broadband, Web sites will add fatter and fatter content to their pages,
making dial-up even more intolerable and creating a snowball effect.
Meanwhile telephone companies are building fiber-optic connections directly
to customers' homes in a few areas, while other companies are working on the
possibilities of wireless systems, or using the electrical grid to provide Internet
access over power lines. However, the same policy issues raised by cable are
also raised by other forms of broadband access. First, few of the prospective
broadband facilities will have the qualities of openness -- qualities that were
consciously cultivated through regulation -- that dial-up access brought to
the early Internet. Second, the unregulated cable model has been treated by
industry and by the leadership of the Federal Communications Commission as a
model for how other broadband technologies should be approached by regulators.
As more and more Americans begin accessing the Internet using broadband connections,
they are moving, often unknowingly, into a new regulatory environment. The results
of this shift can be seen clearly through an examination of the case of cable
broadband. Regardless of whether cable wins or loses the race to become the
predominant means by which Americans connect to the Internet, it has been the
forerunner that raises all the key policy concerns created by the shift to broadband:
how regulators have treated it, and how that treatment has differed from the
old dial-up Internet; the degree of control over Internet use that cable owners
have gained and asserted; and the paucity of true competition faced by providers.
The Government Must Protect the Internet
Critics of the call for open access have charged that these concerns are "theoretical."
Of course any train wreck, no matter how inevitable it appears to be, remains
"theoretical" until the actual collision takes place. And the fact
is, the FCC's current policy has placed communications giants on a collision
course with free speech and the open Internet. When a handful of corporations
control access to the Internet, and have the technical means to interfere with
the free flow of information, they will do so. That is the case, not only because
they can make money by using this power to cut deals and steer their customers
to particular commercial destinations, but also, potentially, because they have
a political interest in certain issues or candidates, or because they have an
interest in pleasing particular government officials who, for example, may have
the power to decide regulatory proceedings affecting the company.
Americans cannot expect major corporations -- which are under intense pressure
from Wall Street to meet earnings expectations every quarter, and in any case
see their primary duty as serving the interests of their shareholders, not protecting
free speech -- to refrain from such interference on their own. So the important
question becomes: what will hold them back? As we have seen, cable broadband
providers are currently restrained neither by competition nor by regulation.
The broadband situation would be bad enough if it were just a case of a market
where monopolistic companies are restrained neither by competition nor by the
government. But Internet access is not just any business; it involves the sacred
role of making available to citizens a forum for speech and self-expression
-- a forum that is perhaps the most valuable new civic institution to appear
in the United States in the past century. An unregulated monopoly is bad for
consumers; a monopoly in Internet access is far worse: it is bad for citizens,
and therefore bad for America.
Free speech is not an economic good. That is not to say it is not economically
valuable -- the openness of American society in general, and free speech in
particular, has played a crucial role in supporting the artistic, intellectual,
and social vitality of our nation, and therefore its economic vitality as well.
But like many general goods, free speech is subject to the problem of collective
action -- individual, profit-oriented corporations won't necessarily pay to
protect it. It is not a necessary or natural result of competitive markets or
other economic activity; the requirements of free speech and the requirements
of profit-oriented corporations are too different. Free speech requires the
protection of minority and unpopular -- sometimes radically unpopular -- viewpoints
and expressions. Competitive businesses have no incentive to protect such voices
-- and indeed tend to cater to what is popular and shun what is hated or disliked.
Free speech requires that no voices be permitted to dominate to the exclusion
of others; businesses tend to rush toward proven successes, often sucking the
oxygen out of smaller, less established voices, not only preventing them from
a shot at success themselves, but also reducing the diversity of voices overall
(a tendency that has long been observed, for example, in Hollywood and in the
The refusal to create competition in cable broadband and the push to dismantle
it in DSL appear to be partly the product of a naive antiregulatory attitude
that scorns any government rules as contrary to the "free market."
What this viewpoint fails to account for is the fact that competition and regulation
are not always at odds. In fact, it is often impossible to have competition
without regulation; government intervention is needed not only to set ground
rules so that competition is kept within socially desirable boundaries (for
example by prohibiting cheating on measurements or gangland hits on one's competition)
but sometimes to create the very arena in which competition can take place to
begin with. Sometimes regulation is needed to provide a level playing field
-- and sometimes it is needed to create the playing field itself. For example,
without government rules establishing and protecting copyrights, intellectual
property would not even exist as "property," and therefore there would
be no market for it. And without government rules creating and preserving broadband
Internet competition, there will be no marketplace for it either, and no competitive
restraint on the shrinking number of corporations that are likely to control
access to the Internet.
Just as a free market of ideas requires rules in order to be effective -- such
as the often complicated parliamentary rules that govern debate in any deliberative
body -- so, too, can an economic free market. Unless, as some have suggested,
the government simply abandons the goal of creating competition and treats broadband
as a regulated monopoly (unlikely in the current political climate), it must
take regulatory steps to insure that free access to the Internet is protected
by competition. Without government interference, the "free market"
will yield monopolies that are anything but free.
If the government remains passive as the Internet shifts from the open phone
system to closed, corporate-controlled broadband networks, the online world
will be transformed in the process into a place where not all thoughts, expressions,
publications, and other content is treated equally. The evermore-exclusive club
of cable operators must be counterbalanced by competition, which in this case
can only be assured by common carrier regulations.
The wealthy and powerful cable industry has so far succeeded in blocking action
to protect the openness of the Internet. Only if citizens demand action can
the precious neutrality and independence of the Internet be preserved.
Letting access to the Internet fall under the control of a tiny cluster of
large companies would not be good for the Internet, for the free flow of ideas
and information, or for the greater good of our democratic society.
Excerpted with permission from "News Incorporated: Corporate Media Ownership
and its Threat to Democracy," edited by Elliot D. Cohen; preface by Arthur
Kent (Prometheus Books, 2005).
-- Elliot D. Cohen, Ph.D. (Port St. Lucie, FL), is the director of the Institute
of Critical Thinking, the editor-in-chief of the International Journal of Applied
Philosophy, and the author of many books in journalism, professional ethics,
and philosophical counseling, including "Journalistic Ethics" (with
Deni Elliot), "Philosophical Issues in Journalism," and "What
Would Aristotle Do? Self-Control through the Power of Reason."
-- Barry Steinhardt is inaugural Director of the ACLU's Program on Technology
and Liberty. He was Associate Director of the American Civil Liberties Union
between 1992 and 2002 and is a co-founder of the Global Internet Liberty Campaign
(GILC), the world's first international coalition of non-governmental organizations
concerned with the rights of Internet users to privacy and free expression.
A graduate of the Northeastern University School of Law, he has published widely
on privacy and free expression issues in a variety of periodicals including
USA Today, and is a frequent guest on news and talk programs such as the "Today
Show," CNN's "Crossfire," CBS's "Face the Nation" and
"Morning News," and "The Donahue Show."
-- Jay Stanley is the Communications Director of the Technology and Liberty
Program of the American Civil Liberties Union, where he researches, writes and
speaks about privacy and technology issues. He has been an analyst at the technology
research firm, Forrester, focusing on public policy issues related to the Internet.
A graduate of Williams College with an MA in American History from the University
of Virginia, he has also been an American politics editor at Facts on File.