This is why a principle called “network neutrality” has emerged in recent years. It essentially says that the carriers should not favor one kind of content, or conversation, over another. The carriers have challenged the Federal Communications Commission’s tiny moves toward network neutrality, and it’s not hard to see why. If they can have a duopoly, with little incentive to truly compete, they can use that dominance to cut deals with big content companies at the expense of smaller players, including what startup media operations might want to provide. And as the carriers become content providers themselves, the incentive to make these choices grows. Comcast says that its own streaming video service won’t count against its bandwidth cap, unlike streaming video services it doesn’t own; a loophole in the FCC’s already-weak regulations may give the cable giant cover. (Note: I own a small number of shares in Netflix, which offers a video streaming service that does count against the cap.)
The serious potential for problems with wired-line broadband is nothing next to the actual situation with mobile carriers. They’ve already won the FCC’s approval to discriminate in their network practices, and they have bandwidth limits a fraction the size of wired-line carriers’ limits. Clearly they cannot handle the kind of traffic that a cable or DSL line can bear, given network limitations, but they’re using relative scarcity to create customer-controlling business models. Recently, AT&T’s mobile arm declared its interest in charging some application developers for preferred connections to their customers. Who could afford that? Companies like Facebook, certainly, but smaller players would be hard-pressed to compete in such an environment.
The telecommunications industry is hardly the only choke point looming in our future. The copyright industries have every intention of being another. Hollywood and its allies have some rational worries, in particular the possibility that file-sharing sites beyond the reach of the law will destroy their businesses by making unstoppable infringement the rule rather than the exception. But it’s worth noting that the major film studios have a longstanding loathing of technology they can’t control—at least until it makes them money, as with videotape, once Hollywood’s top object of paranoia. In the Internet era, copyright holders have gotten Congress to write increasingly restrictive laws designed to prevent infringement but which have dramatic side effects; you are not legally allowed to back up the DVD you purchased, for example, nor can you quote from it by “ripping” a small segment to another file. The copyright lobby didn’t pull off its most brazen attempted coup early in 2012, when Internet users and companies rose up against the House of Representatives’ “Stop Online Piracy Act” and companion Senate legislation. These laws would have created outright Internet censorship in some cases, and a long-range effect, venture capitalists warned, would have been to slow innovation in any area where the entertainment industry felt threatened. Distressingly, if not surprisingly, these issues have received scant coverage from the major television news channels, whose corporate parents have huge entertainment interests and have overwhelmingly supported harsh copyright laws.
We should never underestimate Congress’ talent for getting cyber-issues wrong. Even as lawmakers backed away from the dangerous SOPA legislation, they took up “cyber-security” bills that would be even more of a threat to the Internet, legislation that would give government vast new powers and all but compel telecommunications companies to spy on their customers. As I write this, support was building for a draconian bill, but its fate is unclear.
As it turns out, Hollywood has persuaded the Obama administration on a number of occasions to use (or misuse) existing law against services it deems to be infringing. In a case that journalists did cover, the administration confiscated the domain name of hip-hop website dajaz1.com in November 2010—and then stonewalled requests for information and redress, the site’s attorney told reporters. Not until a year later did the government return the domain name, with no serious explanation and a minimal expression of regret for an act of outright censorship. It’s difficult to imagine the American government taking a newspaper’s website offline, or preventing it from delivering its print copies; yet something like that happened in this case. (Disclosure: The First Amendment Coalition, a nonprofit organization of which I am a member of the board, has taken an interest in this case.)
Entertainment companies aren’t the only corporate interests that threaten journalists’ ability to do their jobs. Private companies are creating their own ecosystems, with minimal regulatory interference, that news organizations find tantalizingly useful but which may turn out to be a mixed blessing.