Jettisoned: 8 Centuries of Common Carriage Law

Someone at CAIDA (presumably kc Claffy by the writing style), went to

an invitation-only intensely interactive workshop on the topic of Internet infrastructure economics. participants included economists, network engineers, infrastructure providers, network service providers, regulatory experts, investment analysts, application designers, academic researchers/professors, entrepreneurs/inventors, biologists, oceanographers. almost everyone in more than one category.

— internet infrastructure economics: top ten things i have learned so far, by webmaster, according to the best available data, October 7th, 2007

and wrote up a report including this summary of the political situation:

...and it turns out that in the last 5 years the United States — home of the creativity, inspiration and enlightened government forces (across several different agencies) that gave rise to the Internet in the first place — has thoroughly jettisoned 8 centuries of common carriage law that we critically relied on to guide public policy in equitably provisioning this kind of good in society, including jurisprudence and experience in determining ‘unreasonable discrimination’.

and our justification for this abandonment of eight centuries of common law is that our “government” — and it turns out most of our underinformed population (see (1) above) — believes that market forces will create an open network on their own. which is a particularly suspicious prediction given how the Internet got to where it is today:in the 1960s the US government funded people like vint cerf and steve crocker to build an open network architected around the ‘end to end principle’, the primary intended use of which was CPU and file sharing among government funded researchers. [yes, the U.S. government fully intended to design, build, and maintain a peer-to-peer file-sharing network!]

That's right folks: "resource sharing" was the buzzword back then, and every node was supposed to be potentially a peer to every other.

And indeed, almost all of the underlying infrastructure protocols of the Internet were produced under U.S. government grant funding.

As for jetissoning 8 centuries of common carriage law, the same government has also jetissoned 8 centuries of habeas corpus precedent, so we shouldn't be surprised.

The next paragraph addresses privatization:

it was not until 1994 when the USG threw the architecture over the fence to the private sector to commercialize it that we saw what market forces would do to this open network. within ten years of this famous policy decision that the rest of the world followed, amidst much irrational exhuberance, misled capital markets, and outright fraud clouding reality, but still, within the short span of ten years it became clear that, even if you were completely honest, there was no economically sustainable way to provide open end-to-end IP connectivity in a competitive free market. So, now, ten years later, agog with market forces, we see the open network architecture going away.

and in response the government is still insisting that we should further deregulate the infrastructure provisioning models so that “market forces will create an open network” [– john kneuer, director of ntia.gov, at supernova 2007]

While we still had common carriage and multiple ISPs in most markets, the market didn't do too badly. The privatization phase of the Internet enabled expansion of the Internet far beyond what a grant-supported model could sustain, and that expansion led to innovations such as the world wide web and all the other interesting applications we know today.

Except for the little detail that the multiple ISPs mostly failed or got bought out by the organizations with the deepest pockets, telephone companies and cable television companies, none of which were involved in the earlier innovations, and who now want to run the Internet like telephone companies or cable TV companies, and have funded lobbying Congress and a president to get rid of any legal infrastructure that gets in the way of that goal. This is like doing away with contract law in order to promote a free market: we don't really know what would happen, because nobody has been so silly as to try it before.

As the blogger says:

1. the “invisible hand” effect of the market is an emergent property that depends on legal infrastructure to support it. e.g, sustainable property rights, contract law, reasonable/non-discrimatory access to infrastructure. [related reading: david brin’s essay on “accountability arenas”]
2. historically common carriage had nothing to do with monopoly or public utility. (public utility law is a derivative of common carriage law).

Public utility law may be a derivative, but something like it is still needed for the Internet to function.

The blogger attributes the problem to lack of measurement, whether economic or technical. That's true to some extent, although there are plenty of metrics showing that the U.S. is woefully behind in numerous dimensions of Internet deployment, speed, uptake, etc. Nonetheless, we have very few measurements relevant to improving the basic infrastructure of the Internet, and even less analysis.

But one reason we few such measurements is that it's not just ISPs that have consolidated down to only a few, it's also the press (a significant part of it owned by one of the same few, Time Warner). And the press, now down to only 5 owners for more than half of it, isn't interested unless it bleeds or it's a soap opera.

Measurements will happen when they can get sold as human interest that the press will get the public interested in, or when proponents of measurements find a way to go around the press to the public and get officials elected who care about measurements. In a good sign, this just happened in the special election to replace former Speaker of the House Dennis Hastert in the 14th Congressional District of Illinois: Bill Foster, a physicist, won.

-jsq

Comments

[Robert Cannon]

So the $10k question, John, is - whose comments is kc summarizing? Who was the prophet of "common carriage" at the meeting? Would be interesting to know.