AT&T Filtering: Has Tim Wu Not Been Paying Attention?

Katharine Graham by Diana Walker

Tim Wu asks in Slate: Has AT&T Lost Its Mind? It seems he's discovered that:

Chances are that as you read this article, it is passing over part of AT&T's network. That matters, because last week AT&T announced that it is seriously considering plans to examine all the traffic it carries for potential violations of U.S. intellectual property laws. The prospect of AT&T, already accused of spying on our telephone calls, now scanning every e-mail and download for outlawed content is way too totalitarian for my tastes. But the bizarre twist is that the proposal is such a bad idea that it would be not just a disservice to the public but probably a disaster for AT&T itself. If I were a shareholder, I'd want to know one thing: Has AT&T, after 122 years in business, simply lost its mind?

No one knows exactly what AT&T is proposing to build. But if the company means what it says, we're looking at the beginnings of a private police state. That may sound like hyperbole, but what else do you call a system designed to monitor millions of people's Internet consumption? That's not just Orwellian; that's Orwell.

— Has AT&T Lost Its Mind?A baffling proposal to filter the Internet. By Tim Wu, Slate, Posted Wednesday, Jan. 16, 2008, at 10:15 AM ET

Come now; what did you think they were up to?

AT&T already said back in November they were thinking of policing "their network" for NBC and Disney.

Some people wonder if such a move won't destroy AT&T's status as a common carrier and accompanying protections from liability. Perhaps they haven't yet noticed that the current complacent FCC has changed the underlying legal infrastructure for the Internet in the U.S. Specifically, the FCC reclassified cable modem access as an information service in August 2002, wireline broadband in August 2005, and wireless broadband in March 2007.

Some argue that text messages might still be considered common carriage as radio messages, but Prof. Susan Crawford doesn't think so. Anything else seems to be fair game for the telcos and cablecos.

Prof. Barbara Cherry has spelled out how unusual it is to strip common carriage status from anything (never happened before in the U.S.) and how anti-trust is unlikely to help.

I suppose we could depend on the FCC's four principles of net neutrality as promulgated in August 2005 when they redubbed wireline broadband as an information service. But they're only principles, and not rules, laws, or even guidelines.

AT&T's latest move is only the logical next step in the media consolidation that has reduced ownership of most of U.S. media from 50 to 5 companies from 1983 to 2003. Consolidation also means control.

We live in a dirty and dangerous world. There are some things the general public does not need to know and shouldn't. I believe democracy flourishes when the government can take legitimate steps to keep its secrets and when the press can decide whether to print what it knows.

— Katharine Graham, Publisher, Washington Post, Speech at CIA, 1988

Don't expect Congress to bail us out without sustained public outcry in the form of votes, because AT&T is the second largest contributor to U.S. Congress members; Time Warner, Bellsouth, and MCI all show up in the same list. There's a sudden surge of contributions to the same Congress members who are proposing retroactive telecomm immunity for illegal wiretapping.

Tim Wu wonders:

The puzzle is how AT&T thinks that its proposal is anything other than corporate seppuku.

Really; where are AT&T's customers going to go? Time Warner? And as for their shareholders, bigger is better, or so many of them think. There's a long history of industries starting off with many players and then getting consolidated down to a very few (streetcars, automobiles, railroads, insurance, etc.) After all, one of the main distinguishing features of capitalism from a market economy is monopoly. And from that point of view information is just another commodity to be consolidated. Tim Wu asks:

Could it really be that AT&T's master strategy is to try and become more like AOL circa 1996?

Why yes, yes it could.

Will this attempt to consolidate and monopolize backfire, perhaps in the way that the record industry's attempts to maintain its cushy consolidated market is wasting a lot of money and alienating its customers? Maybe, but music is a luxury; the Internet is a necessity. Oh, and if AT&T and its ilk can control content on the Internet, they can also bail out RIAA's business model.

Tim Wu points to legal limitations of liability on transitory digital network communications dating from 1998 as currently protecting AT&T unless it decides to do something like the filtering it is proposing. Watch closely what's in that pending retroactive immunity bill; if there's a gap in immunity even with filtering, it may get filled by that bill.

I am not a lawyer, but it appears that lawyers perhaps need to pay more attention to business history and politics, especially when dealing with companies such as AT&T that think in terms of decades and national and global monopolies.

Meanwhile, the mainstream media mostly covers net neutrality, if at all, as a funny little geek topic lacking the appeal of a political horse race or a love match. And that's the kind of media, including the Internet, we'll be left with, unless we have net neutrality. If we want a free press and open access to information, we want net neutrality. If we want competition in information access, we want net neutrality. For that matter, how about some more competitors.

-jsq