Future of the Internet Symposium: Preserving Open Space for User Innovation
First off, thanks to Concurring Opinions and Danielle Citron for hosting this online symposium on Jonathan Zittrain’s The Future of the Internet – and How to Stop it. Before I launch into my own thoughts, I want to add my own version of the praise that the book has already won. It is an immensely readable work that succeeds in showing us where we’ve been, how we got to where we are, and the steps to take to avoid going where we’d rather not be.
I have three brief points, involving a comparison with Japan, some thoughts about competition, consumer protection and innovation, and finally, a somewhat different take on the lessons of Wikipedia.
This symposium is incredibly timely, particularly given the concern in recent weeks about the Google/Verizon agreement. In TFOTI, Zittrain highlights the risks that threaten the Internet’s future, and explains how the net neutrality debate is in some ways a mismatch for those risks. For example, he points out that the migration from the Internet to, in his words, tethered appliances like the iPhone and TiVo, ultimately provide an end-run around net neutrality on the Internet (pp. 177-185). Accordingly, he argues that preserving generativity is a better-tailored principle.
The lead in The Economist this week also takes on the Google/Verizon agreement, and critiques net neutrality from a different angle calling America’s “vitriolic net-neutrality debate” “a reflection of the lack of competition in broadband access.” If you’re reading this symposium, you probably already know, possibly because you read this, that in many other industrialized countries incumbent telcos were forced years ago – and not just in a superficial way – to open up wholesale broadband to competitors.
I’m in Tokyo this academic year thanks to Temple’s long reach across the globe and to my gracious hosts at Keio University Law School. I’ve been travelling to Japan repeatedly since the late 1980s, and one of the changes I’ve been struck by is how a country that in the 1990s was generally held to be well behind the U.S. in telecommunications now seems ahead in broadband and mobile Internet.
Indeed, this is more striking given that the Japan’s lagging telcos used to fit a pattern, still observable in Japan, in which non-tradeable domestic sectors generally seem relatively inefficient. However, the Japanese government not only required NTT, the monopoly domestic telephone company, to sell wholesale broadband to ISPs, but also prevented NTT from competing with the ISPs by prohibiting NTT from bundling in services with broadband Internet and thus becoming both supplier and competitor. The result was an explosion in activity by new entrants, with significant consumer benefit. I’ve always wondered how this policy came about, and the best account I’ve found, suggesting that it was parts happy accident and parts good intention, is this one by Takanori Ida. As Ida observes, network economics is not yet so well understood that you can accurately predict the result of policy, though you may be able to design a better policy if you assume you cannot predict the future (p.78).
This brings me to my second point, about competition policy and innovation. If you’ve followed the Supreme Court’s antitrust opinions over the past decade, after Trinko and LinkLine, you would be forgiven for laughing at the idea that antitrust could have a role in opening up access to rivals to the incumbent telcos. (Although you could read Trinko as suggesting that if you want an Aspen Highlands-like forced access for rivals to network incumbents, you should get it from the FCC, not the Sherman Act.) Similar to Nicholas Nassim Taleb’s point about taking steps to benefit from unanticipated positive “black swan” events, Zittrain makes the point that generativity allows disruptive innovation to benefit us in ways we cannot anticipate. As a result, policies oriented at the future of the Internet should focus on how to preserve our opportunity to benefit from, particularly, user-generated innovation.
One of Zittrain’s biggest fears is the ability of manufacturers of tethered devices or providers of “walled garden” services on the Internet to make their products less generative after the fact. In short, instead of planned obsolescence, there is remote-controlled sterilization. Consumer protection may have a role to play here, though it may not be a panacea. Disclosure regimes, rules giving users the opportunity to opt out and “de-tether” at a future point in time, and rules requiring portability of user-generated content may provide comfort, albeit imperfect, to users. Platform operators and users have come to see the value in generativity – witness how the “tethered appliance” iPhone now sells itself based on the compatible work of others in the App Store. However, the potential for exploitation after the fact will continue to exist. And opportunism and its potential can impose costs by deterring user generated innovation. This is important, since if users become leery of participating on dominant platforms for fear of having the rug pulled out from them, they may participate less, or not at all, and we won’t know what we will have lost as a society in terms of innovation.
Finally, Zittrain points to Wikipedia and how it gets its users to work well together in generating content as a model for how to solve some of the Internet dilemma of security versus generativity.. My colleague David Hoffman and I did a study in which we looked at the decisions of Wikipedia’s arbitration committee. We found that their dispute resolution system did not actually resolve disputes about “correct” content on Wikipedia. Rather, the focus of their dispute resolution system was to create and highlight norms of behavior and good faith for the community to follow – and to ban those who could not or would not at least try to be part of the community. As George Costanza would say, “you know, we’re living in a society.” A Wikipedia-like solution for problems that Zittrain sees would have to involve greater mass recognition that there ought to be civic virtue and social responsibility on the Internet. In addition to providing us with useful insights, The Future of the Internet exhorts us all to take a constructive role in maintaining our power to take a constructive role.