End-to-end, telcos, common carrier, and Lessig

So now everyone’s up in arms that AT&T Inc. and BellSouth are lobbying Capitol Hill for the right to create a two-tiered Internet.

The funny/sad part is that this battle has already been lost for the majority of Americans, and they don’t even realize it. The “right” that AT&T and BellSouth are fighting for — the right to treat different classes of traffic in different ways — is the exact same right that has already been granted to the cable companies by fiat.

Sure, it’s still a crucial battle to fight and win. If the telcos are successful in exempting themselves from common carrier requirements, there’s *nowhere* to turn when BigCableCo turns off your BitTorrent streams. Still, it’s amazing how prescient Lawrence Lessig is in these matters.

I quote him, from Chapter 10 of his book “The Future of Ideas”:

It might strike you as odd that the law would require one kind of broadband service — DSL — to remain open to other competitors, while allowing another broadband service — cable — to build the Internet of the future the way cable and telephones were built in the past. Why would the government permit control over the Internet in one case but require open competition in the other?

The answer is that there *is* no good reason for this inconsistency. It is solely a product of regulatory accident. The regulations governing telephones and all “telecommunications services” are found under Title II of the Communications Act of 1934. The regulations governing cable and all “cable services” are found under Title VI of the Communications Act. Title II requires open access to telecommunications services; Title VI does not…. Cable companies have been allowed to limit the range of ISPs that use their wires, while the telephone company has been required to permit and number of ISPs to have access to its wires.

So here’s the history: regulatory accident. This obvious inconsistency gives the cable industry a clear advantage, and we can’t have that. So there’s two ways to fix it, right? The first way is to restrict the cable companies and make them comply with common carrier laws. The second way is to loosen the restrictions on telephone companies so that, in the case of internet traffic, they don’t have to comply with common carrier laws.

So which way will it go? Lessig’s prediction, from *four years ago*:

But forget what the law is for a moment. Which *should* it be? Should the lines be kept open, or should cable companies, and phone companies, be allowed to close the lines? Should the government do nothing to protect openness in either case? Or should it consistently demand openness where closed systems reign?

Well, let’s first be clear about what’s at stake. Recall what end-to-end ensured: that the network would remain simple, and that it would be unable to discriminate against content or applications it didn’t like, so that innovations — including those the network didn’t like — would be possible on this network. That value is threatened if end-to-end *on the Internet* is compromised — either technically, by building control into the network, or effectively, by layering onto the network rules or requirements that replicate this control. Whatever other closed and proprietary networks there might be, polluting the network with these systems of control is a certain way to undermine the innovation it inspires.

And on the assumption that this control will be allowed, technology firms such as Cisco are developing technologies to enable this control… the network is built to prefer content and applications within the garden… the content favored by the policy becomes the content that flows most easily.

And though AT&T offers congestion as a reason for this limitation, at times it is a bit more forthcoming. As AT&T executive is reported to have said, when asked whether AT&T would permit the streaming of video to computers, “we didn’t spend $56 billion on a cable network to have the blood sucked out of our veins.”

Read Lessig. Read him, read him, read him. His dark vision is coming to pass to the letter. Pay attention to what’s going on. Powerful media companies kill powerful new media innovations, and it’ll happen again if we don’t fight back.

Pay attention.

End-to-end, telcos, common carrier, and Lessig

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