To gain some perspective on the debate about Internet neutrality, we would do well to consult John Milton and John Locke. The Federal Communications Commission is considering the creation of a fast broadband lane that would permit companies like Netflix to purchase more-rapid delivery from Internet-service providers like Verizon. The defenders of net neutrality oppose that proposal and invoke ideals expressed in manifestoes such as the “Digital Declaration of Independence”: “We hold this truth to be self-evident, that every human has an equal and unalienable right to the means to create, distribute, and consume information. …”
Milton and Locke participated in debates at an even more crucial stage in the evolution of information systems—the 17th century, when English authorities were trying to regulate the power of print.
We celebrate both men as champions in the long-term struggle for freedom of the press. They knew, however, that the world of print could not be reduced to the opposition between liberty and oppression. They understood it as a complex information system, driven in large part by economic interests and threatened by commercial monopolies.
Milton’s Areopagitica (1644) is rightly regarded as an argument against censorship. But Milton did not advocate freedom of the press as a natural right because theories about abstract rights had not yet prevailed in political discourse. He attacked the Licensing Order of 1643, which had restored censorship after the collapse of the Stuart monarchy. Behind the act he saw not merely an abuse of political power (one that would not authorize his tracts on divorce), but also the threat of a monopoly by the Company of Stationers of London, which he excoriated as “some old patentees and monopolizers in the trade of bookselling.”
Locke expressed his views during the parliamentary debates that led to the nonrenewal of the Licensing Act, and therefore to the end of prepublication censorship in England, in 1695. The philosopher we most identify with the natural-law tradition, he did indeed favor this victory for freedom of the press. But in his correspondence at the time, he stressed the same abuse that had aroused Milton: the danger, represented by the Licensing Act, that “the Company of Stationers have a monopoly of all the classic authors and [that] scholars cannot but at excessive rates have the fair and correct editions of these books and the comments on them.”
I cite Milton and Locke not to dispute their reputation for idealism but to emphasize their awareness of living in the real world, where the monopolistic tendency of commercial powers was a constant threat to the circulation of knowledge.
The same combination of idealism and realism went into the first copyright act, the Statute of Anne in 1710, titled “An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.” The law’s primary purpose was the public good—“the encouragement of learning”—but it balanced idealism with a practical measure, the provision of an exclusive right accorded to authors (and by extension to publishers) to sell printed books for a limited time. What was that limit? Fourteen years, renewable once.
The first copyright act of the United States, passed by Congress in 1790, followed the British model almost word for word, beginning with “an act for the encouragement of learning.” It put into effect Article 1, Section 8, Clause 8 of the Constitution, which stated that Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
What were those limited times? Again, 14 years, renewable once. What is the limit today? The author’s life plus 70 years—that is, in most cases, more than a century. Have we got the balance right? Does the Copyright Act of 1976, which keeps most 20th-century literature out of the public domain, adequately serve the interest of the public? That question should be asked when we formulate rules to govern the Internet.
The FCC is committed in principle to net neutrality, the principle being that Internet-service providers should treat all data equally and provide equal access to all users. On January 14, 2014, a federal appeals court decided that the FCC did not have the authority to enforce the net-neutrality rules it had announced. On April 23 the FCC proposed new rules, which would permit companies like Verizon and Comcast to build fast lanes and therefore would favor companies such as Netflix and Google, which could pay the higher prices.
The defenders of net neutrality responded with outrage about what they took to be a betrayal of the ideals behind the Internet. They may be right, but idealism alone will not provide an answer to the vexing question faced by the FCC. Internet users often think of cyberspace as comparable to outer space—that is, empty—whereas in fact it includes vast networks of wires, towers, cables, and pipes. They all cost money. If it is to have any effect, the ideal of net neutrality must have some purchase in the real world of money, power, and bandwidth.
And if the FCC is to live up to its responsibilities, it must strike the right balance between private interests and the public good. The calculation involves complex legal and technological issues. But the Telecommunications Act of 1996, which provided the first overhaul of the law since the antiquated act of 1934, could open up a way out of the problem: Treat the Internet as a public utility.
The 1996 act distinguishes between “information services,” which include the user’s capacity to create and process information, and “telecommunication services,” which entail the transmission of information from one point to another without changing its content. The distinction may sound like pettifoggery, yet it has enormous implications.
As its basis for issuing rules, the FCC classified broadband as an “information service.” But in doing so, it exceeded its authority, according to the appeals court. If the FCC reclassified broadband as a “telecommunication service,” it would have the authority to treat it as a “common carrier” and therefore to regulate it as a public utility. That solution might not please the lobbyists in Washington, but it would serve the public interest.
The Internet now permeates the daily life of millions of Americans. Shouldn’t access to it be equal and open, the same as access to electricity and telephone service?
What would Milton and Locke say about such a proposition? The Internet was undreamt of in their time, but one can imagine their answer: Get the balance right, and beware of monopolies.
Robert Darnton is a university professor and university librarian at Harvard University.