A Response to Andrew McLaughlin on Net Neutrality & “Freedom”

Over on his Google+ page , cyber-guru Andrew McLaughlin posted a bit of a rant about libertarians and Net neutrality arguing, among other things, that “the pro-freedom position is to enforce net neutrality.” Needless to say, I disagree and posted a long comment explaining why and trying to help him and others on the Left understand the way libertarians generally look at this issue. For what it’s worth, I thought I would just repost my response to him here:

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Andrew… I’m happy, as always, to engage in friendly debate with you about this, although I suspect from the tone of some of the others here that nothing I will say will convince them that opposition to Net neutrality regulation can be based on anything other than pure corporate whoring!

I’m always mystified by the highly selective nature of this rhetorical device when employed by some on the Left against libertarians. After all, as Tim Lee already alluded to in his comments above, we never seem to hear our Lefty friends trot out those arguments when they agree with us. For example, Berin Szoka and I filed an amicus brief in the Supreme Court last year in the BROWN v. EMA video game case along with Lee Tien and Cindy Cohn of EFF. Why is it that I did not hear one peep from any Lefties about my obvious corporate whoring in that matter! I mean, clearly, there’s no possible way that a libertarian could support First Amendment rights. I must have just been in it for video game industry money, right?

OK, I’m being snarky here. And I know this is not your position because I’ve known you a long time and know that you do not adopt such tactics even when we do, on occasion, disagree heatedly over a major policy issue. But, even if I am wasting my breath, let me just say this to others: We libertarians in the academic and think tank world aren’t exactly living “Lifestyles of the Rich and Famous.” If we all just in it for the money than I can tell you that we are doing a tremendously shitty job at it! (In fact, most libertarian think tanks or organizations only have something like 5 to 10% corporate funding. The organization I work for has even less.) Seriously folks, we libertarians believe in our ideas and fight for them with the same passion that you fight for yours because of a heart-felt belief in the inherent rightness of our core principles.

So, returning to Net neutrality regulation, I would hope that folks on the Left could entertain the possibility that libertarians have serious concerns about the wisdom of inviting government to establish a new regulatory regime for the Internet. If others can be open-minded enough to entertain that possibility, then I hope they will take seriously the three prongs of libertarian opposition to Net neutrality regulation. I suspect the first and second will be somewhat more compelling (or at least plausible) to the Left than the third.

1) First, government simply does not have a very good historical track record regulating network industries.

I view Net neutrality regulation as a combination of common carriage regulation and “public interest” regulation. We have roughly 100 years’ worth of experience with these regimes in practice in various industries. And when we evaluate the success of those regimes in terms of improving economic efficiency, innovation, competitiveness, consumer welfare, etc., well.. the results have been downright dismal.

Now, it is certainly true that common carriage rules and public interest mandates were well-intentioned. For example, who could possibly be against the idea of more diversity and “balance” in the reporting of news and opinion, as was generally mandated by the so-called Fairness Doctrine? And who could be against common carrier regs that mandated “just and reasonable” rates?

But all the noble intentions in the world don’t matter a bit when stacked against the historical evidence of how well these rules and regulatory regimes worked in practice. Most of these efforts backfired miserably. The unintended consequences were myriad. Public interest regulation didn’t give us more diversity, it gave us less. It limited the vibrancy of the speech marketplace in the process. Likewise, “just and reasonable” rate regulation gave us nothing of the sort. These rules benefited incumbents more than consumers or new competitors. They did not spur more innovation or entry. And regulatory capture was absolutely rampant across the board.

Thus, by my read of history, these regulatory regimes were viciously anti-consumer.

I suppose some might disagree with this history and suggest that things weren’t as bad as I’ve made them out to be. I have very little tolerance for that suggestion because I do not believe there is any other way to read this history. I’ve spent the last 20 years attempting to document it in much of my work to remind others – especially policymakers – why we don’t want to go down that path again. But you don’t need to believe me. Read the works of Alfred Kahn (a lifelong liberal Democrat, I might note) or the countless others who have written histories of media and communications regulation. It’s a truly miserable tale.

With all that in mind, can you start to see why the libertarian might be a tad bit suspect of calls for Net neutrality regulation?

2) Second, libertarians tend to be far more optimistic about the possibility of markets, ongoing experimentation, spontaneous/unforeseen innovation, and creative destruction to improve matters long before government regs like Net neutrality get around to doing so.

Again, the FCC just isn’t very good at regulating fast-moving industries and technologies and its track record is particularly poor when it comes to incentivizing new things (remember Video Dialtone? Open Video System rules?) Also, flexibility is crucial for fast-moving technologies and networks and we must be careful not to freeze systems and industries in stone.

While libertarians wouldn’t sympathize with efforts by network intermediaries to “block” any sort of content or traffic, we’d also challenge others to provide serious examples of this being a problem. We don’t think there is a problem here. And if there were such silly corporate efforts to meddle, we are far more optimistic about the power of market and social norms to handle it. Pressure from the press, scholars, engineers, and the general public can help curb the worst excesses. Moreover, corporate screw-ups serve as a good invitation for other innovators to take a stab at offering consumers a better deal.

There’s also the omnipresent threat of the slippery slope of regulation. “Neutrality” mandates could gradually spread to other layers of the Net and cover content and applications. We need to be careful so as not to open the door to comprehensive government regulation of the Internet. The FCC, in particular, has shown itself to be an agency with a healthy appetite for mission creep. Libertarians are highly suspect about giving a bunch of unelected bureaucrats the leeway to determine what a “neutral” Net looks like.

3) Finally, libertarians believe that our Constitution embodies a presumption of liberty. People — including corporations — should be free to pursue their interests so long as they do not violate the rights of others.

This is the “knee-jerk” aspect of libertarianism that alienates many progressives who believe in a different interpretation of rights and the Constitution. For that reason, I never lead with this argument when debating communications, media, or high-technology policy. Nonetheless, I would hope that you would appreciate why this construction of rights and constitutionally-guaranteed liberties leads the libertarian to resist regulatory regimes imposed from above.

Well, I’ve gone on far too long here. I know I have not convinced you to change your mind, Andrew. I understand your position and know how passionately you feel about it. I do hope, however, that you now better understand our position on Net neutrality and realize that it has nothing to do with protecting “big corporate interests,” but rather, it’s about understanding what REAL Internet freedom should be all about!

Alas, our competing conceptions of what “freedom” entails keeps us from being allies on this particular issue. I look forward to continuing to work with you on the many other issues where our ideological traditions are in closer alignment.

Cheers – Adam Thierer

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