Commission) chairman Michael Powell, who, in 2003, began his abdication of his role as public servant by publishing an op-ed in which he argued against government intervention in the media marketplace. “The bottomless well of information called the Internet” makes ownership rules simply unnecessary, a throwback to “the bygone era of black-and-white television,” Powell wrote, positively invoking the very attributes of the Internet he is now paid handsomely to undermine. (In 2013 the revolving door came full circle when Tom Wheeler became Chairman of the FCC; Wheeler once stood at the helm of the same lobbying organization Powell now presides over.)39
Based on the principle of common carriage—rules first established under English common law and applied initially to things like canals, highways, and railroads and later to telegraph and telephone lines—advocates of Net neutrality seek to extend this tradition to our twenty-first-century communications system, prohibiting the owners of a network from abusing their power by discriminating against anyone’s data, whether by slowing or stopping it or charging more to speed it up. They hope to defend the openness of the Internet by securing federal regulation that would guarantee that all bits, no matter who is sending or receiving them, are treated equally. The images and text on your personal Web site, they maintain, should be delivered as swiftly as Amazon or CNN’s front page.
Telecom companies have something different in mind. AT&T, Verizon, Time Warner, Comcast, and others recognize that they could boost revenue significantly by charging for preferential service—adding a “fast lane” to the “information superhighway,” as critics have described their plan. Service providers, for example, could ban the services of rivals outright, decide to privilege content they own while throttling everything else, or start charging content providers to have their Web sites load faster, prioritizing those who pay the most—all three scenarios putting newcomers and independents at a substantial and potentially devastating disadvantage while favoring the already consolidated and well capitalized.
The Internet is best thought of as a series of layers: a physical layer, a code layer, and a content layer. The bottom “physical,” or ISP (Internet service provider) layer, is made up of the cables and routers through which our communications travel. In the middle is the “code” or “applications,” which consists of the protocols and software that make the lower layer run. On top of that is the “content,” the information we move across wires and airwaves and see on our screens. The telecommunications companies, which operate the physical layer, are fundamental to the entire enterprise. Common carriers—“mediating institutions” essential to social functioning—are sometimes called “public callings,” a term that underscores the responsibility that comes with such position and power.
In his insightful book The Master Switch, Tim Wu, originator of the term “Net neutrality,” explains why this may be the biggest media and communications policy battle ever waged. “While there were once distinct channels of telephony, television, radio, and film,” Wu writes, “all information forms are now destined to make their way increasingly along the master network that can support virtually any kind of data traffic.” Convergence has raised the stakes. “With every sort of political, social, cultural, and economic transaction having to one degree or another now gone digital, this proposes an awesome dependence on a single network, and no less vital need to preserve its openness from imperial designs,” Wu warns. “This time is different: with everything on one network, the potential power to control is so much greater.”
While we like to imagine the Internet as a radical, uncontrollable force—it’s often said the system was designed to survive a nuclear attack—it is in fact vulnerable to capture by the private interests we depend on for access. In 2010, rulings by the FCC based on a controversial proposal put forth by Verizon and Google established network neutrality on wired broadband but failed to extend the common carrier principle to wireless connections; in other words, network neutrality rules apply to the cable or DSL service you use at home but not to your cell phone. In 2013, Google showed further signs of weakening its resolve on the issue when it began to offer fiber broadband with advantageous terms of service that many observers found violate the spirit of Net neutrality.40
Given the steady shift to mobile computing, including smartphones, tablets, and the emerging Internet-of-things (the fact that more and more objects, from buildings to cars to clothing, will be networked in coming years), the FCC’s 2010 ruling was already alarmingly insufficient when it was made. Nevertheless, telecommunications companies went on offense, with Verizon successfully challenging the FCC’s authority to regulate Internet access in federal appeals court in early 2014. But even as the rules were struck down, the judges acknowledged concerns that broadband providers represent a real threat, describing the kind of discriminatory behavior they were declaring lawful: companies might restrict “end-user subscribers’ ability to access the New York Times website” in order to “spike traffic” to their own news sources or “degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritized access.”41
Proponents of Net neutrality maintain that the FCC rules were in any case riddled with loopholes and the goal now is to ground open Internet rules and the FCC’s authority on firmer legal footing (namely by reclassifying broadband as a “telecommunications” and not an “information” service under Title II of the Communications Act, thereby automatically subjecting ISPS to common carrier obligations.) Opponents contend that Net neutrality would unduly burden telecom companies, which should have the right to dictate what travels through their pipes and charge accordingly, while paving the way for government control of the Internet. As a consequence of the high stakes, Net neutrality—a fight for the Internet as an open platform—has become a cause célèbre, and rightly so. However arcane the discussion may sometimes appear, the outcome of this battle will profoundly affect us all, and it is one worth fighting for.
Yet openness at the physical layer is not enough. While an open network ensures the equal treatment of all data—something undoubtedly essential for a democratic networked society—it does not sweep away all the problems of the old-media model, failing to adequately address the commercialization and consolidation of the digital sphere. We need to find other principles that can guide us, principles that better equip us to comprehend and confront the market’s role in shaping our media system, principles that help us rise to the unique challenge of bolstering cultural democracy in a digital era. Openness cannot protect us from, and can even perpetuate, the perils of a peasant’s kingdom.
Not that many years ago, Laura Poitras was living in Yemen, alone, waiting. She had rented a house close to the home of Abu Jandal, Osama bin Laden’s former bodyguard and the man she hoped would be the subject of her next documentary. He put her off when she asked to film him, remaining frustratingly elusive. Next week, he’d tell her, next week, hoping the persistent American would just go away.
“I was going through hell,” Poitras said, sitting in her office a few months after the premiere of her movie The Oath, the second in her trilogy of documentaries about foreign policy and national security after September 11. “I just didn’t know if it was going to be two years, ten years, you know?” She waited, sure there was a story to be told and that it was extraordinary, but not sure if she’d be allowed to tell it. As those agonizing months dragged on, she did her best to be productive and pursued other leads. During Ramadan Poitras was invited to the house of a man just released from Guantánamo, whom she hoped to interview. “People almost had a heart attack that I was there,” Poitras recounts. “I didn’t film. I was shut down, and I was sat with the women. They were like, ‘Aren’t you afraid that they’re going to cut your head off?’”
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