April 24, 2017

New Congress, Same Old Issues

With control of the House and Senate about to switch parties, everybody is wondering how the new management will affect their pet policy issues. Cameron Wilson has a nice forecast for tech policy issues such as competitiveness, globalization, privacy, DRM, and e-voting.

Most of these don’t break down as partisan issues – differences are larger within each party than between the two parties. So the shift in control won’t necessarily lead to any big change. But there are two factors that may shake things up.

The first factor is the acceleration of change that happens in any organization when new leadership comes in. The new boss wants to show that he differs from the old boss, especially if the old boss was fired. And the new boss gets a short grace period in which to be bold. If a policy or practice was stale and needed to be changed but the institutional ice floes were just stuck, new management may loosen them.

The second factor has to do with the individuals who will run the various committees. If you’re not a government geek, you may not realize how much the agenda on particular issues is set by House and Senate committees, and particularly by the committee chairs. For example, any e-voting legislation must pass through the House Administration Committee, so the chair of that committee can effectively block such legislation. As long as Bob Ney was chair of the committee, e-voting reform was stymied – that’s why the Holt e-voting bill could have more than half of the House members as co-sponsors without even reaching a vote. But Mr. Ney’s Abramoff problem and the change in party control will put Juanita Millender-McDonald in charge of the committee. Suddenly Ms. Millender-McDonald’s opinion on e-voting has gotten much more important.

The bottom line is that on most tech issues we don’t know what will happen. On some issues, such as the broad telecom/media/Internet reform discussion, the situation is at least as cloudy as before. Let the battles begin.

Taking Stevens Seriously

From the lowliest blogger to Jon Stewart, everybody is laughing at Sen. Ted Stevens and his remarks (1.2MB mp3) on net neutrality. The sound bite about the Internet being “a series of tubes” has come in for for the most ridicule.

I’ll grant that Stevens sounds pretty confused on the recording. But’s let’s give the guy a break. He was speaking off the cuff in a meeting, and he sounds a bit agitated. Have you ever listened to a recording of yourself speaking in an unscripted setting? For most people, it’s pretty depressing. We misspeak, drop words, repeat phrases, and mangle sentences all the time. Normally, listeners’ brains edit out the errors.

In this light, some of the ridicule of Stevens seems a bit unfair. He said the Internet is made up of “tubes”. Taken literally, that’s crazy. But experts talk about “pipes” all the time. Is the gap between “tubes” and “pipes” really so large? And when Stevens says that his staff sent him “an Internet” and it took several days to arrive, it sounds to me like he meant to say “an email” and just misspoke.

So let’s take Stevens seriously, and consider the possibility that somewhere in his head, or in the head of a staffer telling him what to say, there was a coherent argument that was supposed to come out of Stevens’ mouth but was garbled into what we heard. Let’s try to reconstruct that argument and see if it makes any sense.

In particular, let’s look at the much-quoted core of Stevens’ argument, as transcribed by Ryan Singel. Here is my cleaned-up restatement of that part of Stevens’ remarks:

NetFlix delivers movies by mail. What happens when they start delivering them by download? The Internet will get congested.

Last Friday morning, my staff sent me an email and it didn’t arrive until Tuesday. Why? Because the Internet was congested.

You want to help consumers? Consumers don’t benefit when the Net is congested. A few companies want to flood the Internet with traffic. Why shouldn’t ISPs be able to manage that traffic, so other traffic can get through? Your regulatory approach would make that impossible.

The Internet doesn’t have infinite capacity. It’s like a series of pipes. If you try to push too much traffic through the pipes, they’ll fill up and other traffic will be delayed.

The Department of Defense had to build their own network so their time-critical traffic wouldn’t get blocked by Internet congestion.

Maybe the companies that want to dump so much traffic on the Net should pay for the extra capacity. They shouldn’t just dump their traffic onto the same network links that all of us are paying for.

We don’t have regulation now, and the Net seems to be working reasonably well. Let’s leave it unregulated. Let’s wait to see if a problem really develops.

This is a rehash of two of the standard arguments of neutrality regulation opponents: let ISPs charge sites that send lots of traffic through their networks; and it’s not broke so don’t fix it. Nothing new here, but nothing scandalous either.

His examples, on the other hand, seem pretty weak. First, it’s hard to imagine that NetFlix would really use up so much bandwidth that they or their customers weren’t already paying for. If I buy an expensive broadband connection, and I want to use it to download a few gigabytes a month of movies, that seems fine. The traffic I slow down will mostly be my own.

Second, the slow email wouldn’t have been caused by general congestion on the Net. The cause must be either an inattentive person or downtime of a Senate server. My guess is that Stevens was searching his memory for examples of network delays, and this one popped up.

Third, the DoD has plenty of reasons other than congestion to have its own network. Secrecy, for example. And a need for redundancy in case of a denial-of-service attack on the Internet’s infrastructure. Congestion probably ranks pretty far down the list.

The bottom line? Stevens may have been trying to make a coherent argument. It’s not a great argument, and his examples were poorly chosen, but it’s far from the worst argument ever heard in the Senate.

Why then the shock and ridicule from the Internet public? Partly because the recording was a perfect seed for a Net ridicule meme. But partly, too, because people unfamiliar with everyday Washington expect a high level of debate in the Senate, and Stevens’ remarks, even if cleaned up, don’t nearly qualify. As Art Brodsky of Public Knowledge put it, “We didn’t [post the recording] to embarrass Sen. Stevens, but to give the public an inside view of what can go on at a markup. Just so you know.” Millions of netizens now know, and they’re alarmed.

Net Neutrality: Strike While the Iron Is Hot?

Bill Herman at the Public Knowledge blog has an interesting response to my net neutrality paper. As he notes, my paper was mostly about the technical details surrounding neutrality, with a short policy recommendation at the end. Here’s the last paragraph of my paper:

There is a good policy argument in favor of doing nothing and letting the situation develop further. The present situation, with the network neutrality issue on the table in Washington but no rules yet adopted, is in many ways ideal. ISPs, knowing that discriminating now would make regulation seem more necessary, are on their best behavior; and with no rules yet adopted we don’t have to face the difficult issues of line-drawing and enforcement. Enacting strong regulation now would risk side-effects, and passing toothless regulation now would remove the threat of regulation. If it is possible to maintain the threat of regulation while leaving the issue unresolved, time will teach us more about what regulation, if any, is needed.

Herman argues that waiting is a mistake, because the neutrality issue is in play now and that can’t continue for long. Normally, issues like these are controlled by a small group of legislative committee members, staffers, interest groups and lobbyists, but rarely an issue will open up for wider debate, giving broader constituencies influence over what happens. That’s when most of the important policy changes happen. Herman argues that the net neutrality issue is open now, and if we don’t act it will close again and we (the public) will lose our influence on the issue.

He makes a good point: the issue won’t stay in the public eye forever, and when it leaves the public eye change will be more difficult. But I don’t think it follows that we should enact strong neutrality regulation now. There are several reasons for this.

Tim Lee offers one reason in his response to Herman. Here’s Tim:

So let’s say Herman is right and the good guys have limited resources with which to wage this fight. What happens once network neutrality is the law of the land, Public Knowledge has moved onto its next legislative issue, and the only guys in the room at FCC hearings on network neutrality implementation are telco lawyers and lobbyists? The FCC will interpret the statute in a way that’s friendly to the telecom industry, for precisely the reasons Herman identifies. Over time, “network neutrality” will be redefined and reinterpreted to mean something the telcos can live with.

But it’s worse than that, because the telcos aren’t likely to stop at rendering the law toothless. They’re likely to continue lobbying for additional changes to the rules—by the FCC or Congress—that helps them exclude new competitors and cement their monopoly power? Don’t believe me? Look at the history of cable franchising. Look at the way the CAB helped cartelize the airline industry, and the ICC cartelized surface transportation. Look at FCC regulation of telephone service and the broadcast spectrum. All of those regulatory regimes were initially designed to control oligopolistic industries too, and each of them ended up becoming part of the problem.

I’m wary of Herman’s argument for other reasons too. Most of all, I’m not sure we know how to write neutrality regulations that will have the effects we want. I’m all in favor of neutrality as a principle, but it’s one thing to have a goal and another thing entirely to know how to write rules that will achieve that goal in practice. I worry that we’ll adopt well-intentioned neutrality regulations that we’ll regret later – and if the issue is frozen later it will be even harder to undo our mistakes. Waiting will help us learn more about the problem and how to fix it.

Finally, I worry that Congress will enact toothless rules or vague statements of principle, and then declare that the issue has been taken care of. That’s not what I’m advocating; but I’m afraid it’s what we’ll get if insist that Congress pass a net neutrality bill this year.

In any case, odds are good that the issue will be stalemated, and we’ll have to wait for the new Congress, next year, before anything happens.