"We were supposed to be celebrating," Lawrence Lessig was telling the National Conference on Media Reform (NCMR).
But by then -- Friday morning, the Seaport World Trade Center in Boston -- it was apparent, as it had been for weeks, that the Republicans would succeed in passing a bill to cut off the FCC's net neutrality efforts at the knees. And so instead Lessig gave an obituary for a movement that had been designed to legislate some protection for the free internet. He recalled the bipartsan support network neutrality enjoyed five years ago, the stump-speech promises by Barack Obama that he would "take a back seat to no one" in support of it, the appointment of an FCC commissioner who was expected to enact it as a key component of communications policy in America.
"We are not celebrating today," Lessig said. "Halfway into this [presidential] term, we are fighting to hold onto what I believe is a second rate compromise on network neutrality by a compromised FCC, because activists such as the Tea Party and the Republicans and, I thought three -- I hear now six -- Democratsare voting to make the FCC regulations in support of nn illegal. Now maybe they will be stopped inthe senate. Maybe. But the astonishing thing . . . is that this obvious bipartisan reform is most likely dead as a political movement."
Lessig used the opportunity of his keynote to launch a new initiative, on a website called rootstrikers.org, whose mission is to stop the private funding of public elections. He says he now believes that, politically, net neutrality and copyleft are finished as movements unless Congress can be unleashed from the influence of corporations and lobbyists. This realization, he said, was a painful one, since it made him realize that he was not as smart as he thought he was.
But it may be even more painful for the progressive media activists who had been hoping to launch a renewed campaign to advance the political future of net neutrality as a government-legislated principle. If Lessig is correct and net neutrality is dead as a movement, what's next is far more unclear.
This week in the Phoenix, I wrote about the stormclouds gathering over the heads of net neutrality supporters. Even though the White House has promised to veto the House Republicans' bill, the FCC's biggest hurdle is in the Federal courts, where even their new, weakened guidelines are unlikely to hold up. I also suggested that the network neutrality movement is not keeping pace with the efforts of corporations to circumvent the spirit of neutrality by exploiting the longstanding, not-very-well-understood traffic economy beneath the internet.
In a longer version of the article posted online, I draw attention to some intriguing comments made during this year's South by Southwest Interactive festival by professor Tim Wu, who is a board member (or was -- perhaps he'll have to recuse himself) of FreePress.org, the group sponsoring NCMR, and had been scheduled to speak there. He's recently been appointed to the Federal Trade Commission, and had to drop off the schedule. When he spoke at SXSW this past March, shortly after joining the FTC, Wu was uncharactersitically reserved in his remarks. But reading between the lines, he seemed to suggest that the future of net-neutral-like protections might come from -- if you can believe it -- the courts, as opposed to the FCC. How?
“The net neutrality debate is very alive politically right now, but I think some of the power in the internet world in general has moved to the platforms,” Wu told the SXSW crowd. “If you’re really interested in law, you have to see who wins – or what’s happening while the stuff goes on. That’s the power game."
By platforms, Wu was speaking of the gigantic players on the internet: like Google, who famously tried to broker their own version of a net-neutrality deal with Verizon, or Facebook, or Apple. Perhaps he was suggesting that these companies will have more leverage with the Big Telecom carriers than the federal government or consumer advocates have had. Or he might instead have been suggesting that we should no longer be worrying about the carriers so much -- that their ability to influence content was about to be dwarfed by something else. In Wu's book The Master Switch, some of those big platforms -- Apple, for instance -- come in for withering contempt from Wu, who believes that bad shit starts to happen when the people who produce content also control the method for distributing that content. It has been suggested, for instance, that Wu's presence at the FTC should keep Steve Jobs awake at night. Which might be stretching things. Still, it's worth quoting Wu's response, at SXSW, to a question about whether Facebook and Google have begun to be as essential to the economy as the carriers of the underlying internet itself.
"Has everything I've said about these carriers -- that they've become facilities for the essential infrastructure of the economy -- does that at some point become true for Facebook [and] Google, two companies that everyone relies on almost every day? And then therefore do they become subject to ceratin duties? The medieval judges [who invented the old English law of common carriage] probably would've said yes at some point. That's not the opinion of the FTC . . . and in fact, this may sound crazy, but that's all right: I believe that Google has started to attract some duties like that. I'll just say that. They're not written in any law, they're nowhere, but I imagine -- look, law is a prediction of what Congress would do, or what regulators would do. This is sort of a jurisprudential point. And I imagine if Google did something extremely outrageous . . . that they might see a legal reaction to it."
LISTEN: Tim Wu's 2011 SXSW speech, "Net Neutrality Forever? The Very Long View"
Wu also went on to describe what he sees as fundamental differences between Facebook and the carriers. But Wu's presence at the FTC, and his idea that a company like Google has already begun to attract common-carriage duties, certainly seems to suggest directions for jurisprudential activism over the next several years. It'll take a better legal mind than mine to flesh out where he's going with this -- but it seems clear that the people who take network protections most seriously (Wu, the EFF) do not believe that waiting on a legislative or regulatory solution is going to be productive. What's left? Anti-trust, most likely. And perhaps a new standard -- for which Google might qualify -- that detects when platforms, as well as carriers, begin to exert an undue influence on the internet.