A recent blog from the Center for Digital Democracy ( “Is the Open Internet Coalition About A Real Democratic Net – or One Safe for Data Collections and Interactive Advertising,” May 25, 2007) attacked the broad coalition fighting for network neutrality and called on public interest advocates to change their focus on Internet policy, stating:

"Indeed, without rules governing Google’s expansion, limits on data collection, a strong legal framework for privacy, and policies promoting meaningful open non-commercial civic space, the Internet will be “open” in name only. The Google’s, Yahoo!’s, IAC’s, Microsoft’s, etc. will be working with the phone and cable broadband monopolists on a playing field which still unfairly favors the giants."

This call to shift attention from network neutrality to other issues at a critical moment in the policy debate would be a huge mistake for public interest advocates fighting to promote consumer and citizen interests. The privacy issues associated with data collected by websites, search engines, those who advertise and those who serve advertisements are important and growing. But the electronic privacy concerns highlighted by growing consolidation of search engines and online advertising and the need for a truly neutral Internet are not mutually exclusive.

Protecting consumers and citizens from abuse by the commercial sector and promoting consumer sovereignty and democratic discourse are interrelated, but distinct objectives. Both are essential for a vibrant and innovative online economy and public sphere. And consumer advocates must be vigilant about both. The suggestion that a neutral network would be “open in name only” rests on a fundamental failure to understand what is happening on the 21st century Internet, while projecting the evils of the twentieth century broadcast media model into an entirely different communications space where it just does not fit.

There is a good reason that the telephone and cable companies have been more unified and steadfast in their opposition to network neutrality (and its predecessor concepts) over a longer period of time (more than four decades) than virtually any other communications policy in the last half century. Network neutrality is the central condition that has ensured and will continue to ensure that the Internet remains both a raucous space for democratic discourse and an engine of economic innovation.

While “network neutrality” is the term du jour, a fundamentally similar set of issues were known as “open access” a decade ago when public interest groups raised them in the context of cable mergers and called “nondiscrimination” by consumer groups in the battle against the telephone companies two decades ago. In the original battle of the Computer Inquiries four decades ago, major corporations battled telephone companies over the ability to use telecommunications on “just, reasonable and nondiscriminatory rates, terms and conditions” to provide data services.

It was the enhanced service providers, corporations, who were neither big media nor big telecommunications network owners, who carried the fight for an open network for two decades before the public interest community took up the banner. The communications space that resulted was far more consumer- and citizen-friendly than any of the combatants could have imagined at the time and it has withstood repeated efforts by the communications companies to reassert centralized control. The current effort by cable and telephone companies to end network neutrality has gotten farther than any previous attempt and the threat to an open Internet is very real.

Network neutrality/open access is critical because it ensures that consumers and citizens can easily escape from the walled-gardens and gated-communities that the cable and telephone companies like to build. And the world they escape into is a communicative space that is more varied and vibrant than any that has ever existed, or had even been contemplated. The communicative space created by network neutrality/open access combined with the Internet’s “end-to-end” principle is varied and raucous primarily because the production of content by people (not corporations) dominates in cyberspace, but also because the ease of entry on a neutral, digital network ensures a continuous flow of new commercial content and innovative applications.

As Yochai Benkler has shown in The Wealth of Networks, the transformative power of open communications networks in the presence of digital technologies lies primarily in the public sphere. Network neutrality/open access in digital communications networks ensures hundreds of millions of blogs, listserves, wikis and other forms of collaborative production, as well as web sites of public interest groups, non-governmental organizations, governments, newspapers, television stations, and corporations, cannot be prevented from remaining at the cutting edge of communications. As long as the network operators cannot discriminate in access to the most advanced network functionalities, there is no reason to believe that the explosion of noncommercial content, the continuous entry of new commercial content producers, and the rapid growth of semi-commercial content in the long tail on the Internet will cease or even slow. The key to a democratic public sphere in the broadband era is a neutral and open communications network.

Network neutrality also radically transforms the terms of trade between the consumer and professional content producers. The network operators and professional content creators will certainly try to carve out spaces in which they monetize their proprietary content, but their market power will be fundamentally constrained in cyberspace by the easy exit consumers have from those walled-gardens and the easy access all content producers have to consumers, as long as network neutrality is the organizing principle of communications policy. This is why the walled-garden model of AOL-Time Warner, the former bete noir of the public interest community, failed. AOL-Time Warner simply could not keep consumers inside the garden and they could not compete against the dynamic innovation of the Internet economy in generating content. Consumers could easily escape and AOL-Time Warner could not produce unique content that was sufficiently attractive that consumers wanted to stay inside the garden. The AOL-Time Warner walled-garden was swept away by an open Internet. There are certainly legitimate privacy and consumer protection concerns in the efforts and alliances that seek to target advertising in the online environment, but they are very different concerns than those raised by the failed walled-garden raised.

The suggestion that, in an open access communications network, a handful of commercial interests will colonize cyberspace ignores the fact that the vast majority of content and communications on the Internet is noncommercial. We have gone from a world in which 99 percent of the widely distributed content was produced by Big Media, to a world in which 75 percent of the content is produced by people and most of the rest is not produced by big media companies. The protection and nurturance of the space in which noncommercial and semi-commercial content production thrives through the preservation of network neutrality/open access is the paramount challenge we confront in ensuring a “real democratic net.”

We certainly must continue to provide consumer protection in the commercial sphere of cyberspace – being vigilant to prevent invasions of privacy, deceptive advertising or search practices that mislead consumers – but it would be a grave mistake to afford these issues higher priority than network neutrality in the fight for freedom of expression on the Internet. Big media, with its privileged position of broadcast licenses and cable franchises, and its continuing influence over public opinion must also be restrained from further consolidation and from using their legacy market power to undermine the alternative communications space. Physical space still matters a great deal in democratic discourse. Privacy protection, restraints on advertising and rules to ensure fair search in cyberspace and limits on big media in physical space are necessary to prevent harm, but they will not produce the positive public sphere we want without network neutrality as the foundational principle of the communications network. The only chance the big commercial interests have to make their walled-gardens effective is to end the open and neutral operation of the communications network and impose the closed cable model in cyberspace.

Over the course of the last decade, the harm of abandoning network neutrality has been made clear in the elimination of Internet service providers and the declining standing of the U.S. in broadband penetration. The full onslaught of discrimination and exclusion has been held back, however, by court cases that were resolved a couple of years ago and consent decrees in recent telecommunications mergers, which expire in a couple of years. The FCC has an open proceeding on network neutrality and legislation has been introduced in the Senate. Now is the time to renew, not abandon, our commitment to this most important cornerstone of communications policy and Internet success. If we can find corporate allies, we should work with them. It sharply increases our chances for success. And, we must recognize that a “real democratic net” is certain to include commercial interests alongside non-commercial and semi-commercial content producers. Realistically, as long as commercial interests exist, giants will have advantages, but a neutral, open communications network is the greatest leveler, creating the least favorable environment for the “giants.”

Mark Cooper,
Director of Research,
Consumer Federation of America (CFA)
CFA is a founding member of the SavetheInternet.com Coalition and its progeny the Open Internet Coalition