Reclassify ISPs Today; Don’t Wait for Perfection

Timothy B. LeeOne of the reasons that I stopped being a libertarian was that I was tired of being a spoiler. The truth was that I always preferred liberal policy. So even though I was a hardcore libertarian in 1992 and voted for Andre Marrou, I was thrilled that Bill Clinton was elected. But it was more than that. With all the high minded theory of libertarianism, I often found myself at odds with practical alternatives. In this country, the question is usually whether there will be modest improvements for regular people from Democratic policy, or distinctly negative consequences from Republican policy. Being a libertarian on the sidelines is just pathetic, “I have the best idea! Listen to me!” It doesn’t help that libertarians basically never have the best ideas.

This came to mind this morning as I read Timothy B Lee over at Vox, Everyone Is Focused on the Wrong Issue in the Net Neutrality Debate. In general, I like Lee. He is a smart libertarian wonk who usually has good things to say on issues of intellectual property. And what he says regarding net neutrality is smart and largely true. But it takes a position that allows things to stay exactly the way they are: broken.

During the Bush administration, the FCC classified internet service providers (ISPs) as content providers rather than infrastructure providers. This means there are very few regulations on them. Of course, this decision turned reality on its head. I’m using AT&T for my ISP right now. It is providing infrastructure, not content. The content between me at home and the Frankly Curious server sits on top of that. Or think of it this way: would you pay for internet service if the only thing that was on it was AT&T and Comcast? But I think we all know why the FCC decided that ISPs were content services: it gave more power to the ISPs.

Millions of us have been pushing to have ISPs reclassified as infrastructure providers — so it would be thought of as a utility. This has the advantage that you almost certainly do think of your ISP as a utility. You certainly don’t think of it the way you think of Twitter. But conservatives hate this idea. They claim that this will interfere with innovation. I’ll tell you: when someone starts talking about “innovation,” you really need to hide your wallet. This is the same reason we are told we must have pharmaceutical patents: to maintain all the innovation in the field of erectile dysfunction drugs.

Of course, innovation works both ways. My current start-up depends upon having lots of internet bandwidth. And I’m not alone. If start-ups have to go making bandwidth deals with the ISPs, that’s going to cripple innovation. And there’s more, as Lee noted:

There is an even greater — potentially debilitating — concern for some advocates: incumbent broadband providers could deliberately hobble new services that represent a competitive threat to incumbent services. For example, telephone companies might be tempted to interfere with internet telephony products such as Skype that compete with traditional phone service. Or cable companies might want to slow down services such as Netflix that compete with their paid television service.

What’s more, net neutrality seems to be working great in the Netherlands. But remember: the “innovation” claim is just an excuse to allow powerful people to maintain that power. The only reason we might win this fight is because there are powerful people like Netflix on our side.

Lee understands all this, but he poo poos the idea that reclassifying is a good idea. He claims it is a “huge distraction.” And why is that? Because what we really need is a new classification that is tailored for the internet: sort of a hybrid between the two existing categories. But the fact is that this is absolutely, positively not going to happen. So do nothing? Well, that seems to be where he comes down. And that is the entirely typical result of libertarian thought: since we can’t have our preferred “perfect” solution, let’s do nothing.

But changing the classification of ISPs back to what it was would be an improvement. I’m all for Lee trying to get Congress to come up with something new. But it doesn’t “distract” from that to go ahead with the reclassification today.

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