Occasionally, science fiction can’t avoid being shaped by actual facts.  Usually these are scientific facts, but sometimes economic, social, and even legal factors play a role.  It’s illuminating to look at the recent court decision on “network neutrality,” or “Internet open access,” from a science fictioneer’s point of view.

The question of “net neutrality,” or whether Internet service providers (ISPs) such as telecommunications and cable companies can control what people send and receive over the Internet, has been in play since at least 1998.  The Internet first became accessible to the general public by dial-up service over the public switched telephone network in the mid-1990s (who can remember the once-familiar sound of a dial-up modem connecting?).  Since the telephone system was a common carrier like a railroad or the Postal Service, required to carry anyone’s traffic as long as it didn’t harm the network, there was initially no question of the carriers’ controlling anyone’s Internet communications.  But when people began shifting to “broadband” Internet service over cable systems, which had not traditionally been treated as common carriers, new questions arose.

The Federal Communications Commission (FCC) tried three times to establish some kind of rules of the road that would prevent ISPs from blocking or altering people’s Internet communications.  Third time lucky:  on June 14, 2016, the U.S. Circuit Court of Appeals for D.C. upheld the FCC’s 2015 “Open Internet Order.”  The decision was published as United States Telecom Association v. FCC, __ F. 3d ___ (D.C. Cir. June 14, 2016) (USTA).

 

The ISPs like to frame the dispute in terms of the FCC’s “regulating the Internet.”  Actually, it’s almost the reverse.  All the FCC rules do is prevent the ISPs from regulating the Internet—from controlling what individual users can see on the Web and what they say in messages.  It would be more accurate to say that FCC is setting up rules that foster a free market.  This is why the technology industry, except for carriers and their proxies, is generally in favor of net neutrality.

Like many other tech-driven changes explored in science fiction, our ability to use the Internet has far-reaching consequences.  The court observed:  “Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie.”  (p. 26)

This particular change wasn’t often investigated by SF.  You can find early depictions of something like the Internet.  Characters in James H. Schmitz’s 1960s-1970s Federation of the Hub stories use a network presciently dubbed the “ComWeb,” both to communicate and to access information, as one commentator remarked, “on ‘Internet time.’”  The cyberpunk genre deals with world-wide networks—but I don’t recall a story where the neutrality issue played a role.  (On the other hand, I haven’t read all that much cyberpunk.)  Some stories show the Internet “waking up”—Internet as artificial intelligence:  for instance, Spider Robinson’s “Solace” in Callahan’s Legacy, “Webmind” in Robert J. Sawyer’s Wake.  But that’s another matter entirely.  In most of these stories, the network is just there; control over it by the ISPs isn’t an issue.

But, like a science fiction thought-experiment, the net neutrality controversy shows some of the qualities a modern society needs in a communications system.  For example—

• Transmission integrity—trustworthiness.  If the system arbitrarily changes the information passing through it, it won’t be very useful either for trade or for speech.  As the USTA court said:  “the Commission explained that ‘[u]sers rely on broadband Internet access service to transmit “information of the user’s choosing,” “between or among points specified by the user,”’ without changing the form or content of that information.  2015 Open Internet Order, 30 FCC Rcd. at 5761 ¶ 361 (quoting 47 U.S.C. § 153(50)).”
• Universality (which implies affordability).  This was a key feature of the original telephone monopoly—the “social contract” under which the Bell System was allowed a legislative monopoly in return for providing universal service at regulated rates.

Much of the battle over net neutrality revolves around visions of the kind of alternate futures that might result from different legal regimes.  The FCC’s rules, which act to clear a space for free action and competition, are designed to ward off certain kinds of problems that could develop in such alternate futures.

First among those problems is the economic dominance that can be gained through gatekeeper control of communications.  A cabal of ISPs that controlled all communications could prevent entry by competitors; “pick winners and losers,” deciding which new companies and products would succeed; and siphon off the profits from such new and innovative enterprises, right down to the level where a company that relies on communications can barely break even.  Thus, although the ISPs fully recover the network’s costs from end users’ payments (Americans pay more for lower speeds than in many developed countries), they also seek to be paid by the “edge providers” whose Web sites we visit, not only for those companies’ own Internet connections but also for the pure privilege of reaching the ISPs’ subscribers—in other words, to be paid three times for the same network.

In a free market, it’s essential to have a common medium in which trade can take place.  We analogize the Internet to the streets and roads of our transportation system; but if someone owned the only road leading to your home, and could bar certain traffic at will (including mail delivery), they’d have you over a barrel.

We do see examples of this kind of economic dominance by a few organizations in SF stories, though not usually in the communications realm.  In Dune, when the Spacing Guild joins the alliance against the Atreides family, the game is up—the Guild has a monopoly on interstellar travel.  In Heinlein’s Friday, the Shipstone company controls (stored) energy—and in Heinlein’s much more concise short story “Let There Be Light,” we see how entrenched interests can prevent disruptive innovation.  In a similar way, a cartel that controlled communications—without neutrality requirements—in our information-centric society could establish an economic oligarchy.  There are some fascinating stories to be written there . . .

It’s an illusion to think that in the absence of all regulation, we would have free independent individuals trading with each other on an equal basis.  What we’d have is warlords fighting over slices of a steadily shrinking pie.  One of the functions of the rule of law is to create a space in which a free market can exist—to establish the preconditions for free interaction by all economic players.  This is true of enforceable contract law in trade (just as similar principles require enforceable traffic laws on the roads).  A novel example of how legal protections create reliable conditions for trade is the notion of setting up well-policed areas where people who buy and sell online can meet to exchange their goods, without having to fear being robbed—an “Exchange Zone for Online Purchases.”

To gain the advantages of the Internet’s “flat distribution model,” in which even a small business can buy and sell worldwide without having to make major capital investments, one must be able to communicate freely and inexpensively.  The USTA court noted that “[a]ccording to the Commission [FCC], such rules encourage broadband deployment because they ‘preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet.’”  (p. 17, citing Verizon, 740 F.3d at 628)

But we also use the Internet to create pathways for speech—a central First Amendment interest.

Some ISPs—Verizon in an earlier case, Alamo Broadband in the USTA proceeding—have argued that their own First Amendment rights forbid any imposition of net neutrality rules.  Their position is that on the networks they control, they are the “speakers”—and they cannot be compelled (as a common carrier) to transmit any speech they don’t want to carry.  In other words, when you use your Verizon Internet account to read the latest article by your favorite columnist, it isn’t the columnist whose speech is protected by law:  it’s Verizon’s.  And when you e-mail your best friend your opinions on the upcoming election, it isn’t you speaking—it’s Verizon who can exercise “editorial control” over how your message comes out at the other end.  According to this argument, if you wrote “I love Obama” (or Trump, or Sanders, or Hitler), the ISP could substitute “I hate . . .”  It’s their speech.

Fortunately, the USTA court declined to accept this argument.  If the ISPs had prevailed, the results would have been ironic.  It would have been imperative to build a government-owned network at once, one that people could use to communicate without interference—because governments are forbidden by the First Amendment from controlling people’s speech.  And by the same token, the ISPs would have been forced to police every Web site they delivered to subscribers, from pornography to political opinions—since they would be the speakers.

This scenario sounds as absurd as some science-fictional extrapolations.  But in a world where tyrannies around the globe are doing their best to exercise exactly such speech control by acting as Internet gatekeepers, it’s not hard to imagine ISPs doing the same thing.  And it’s hard to say which would be worse.

 

In sum, the FCC and the court have taken the right path in this case.  The alternatives could make extremely interesting ideas for stories.  But unlike the thought-experiments of SF, this is a real-life experiment, with actual consequences.  It’s important that we get it right.