Internet governance and democratic legitimacy.

AuthorSylvain, Olivier
  1. INTRODUCTION II. THE TECHNOLOGICAL APPROACH TO BROADBAND POLICYMAKING A. The Affordances and Capabilities of Broadband B. A Problem of Network Management: The Comcast Case 1. The Decision 2. Implications C. The Technological Approach as Regulatory Governance 1. Programming Code Acting as Law 2. Self-Regulatory Organizations Acting as Lawgivers D. Regulatory Deference as Regulatory Incapacity III. THE ECONOMIC APPROACHES TO BROADBAND POLICYMAKING A. Competition 1. Early Computer-Enhanced Communications Service 2. Minimal Interference for Broadband Service B. Emergence Economics 1. The Wealth of Networks 2. Why Network Wealth Is Not All That Matters C. Efficiency and Welfare Economics D. Liberal Deference and Self-Governance IV. THE PARTICIPATORY APPROACH TO BROADBAND POLICYMAKING A. Civic Republicanism 1. The Theory 2. Case Study: The Postal System 3. Republicanism and the Internet B. Participatory Governance 1. The Theory 2. Case Study: Broadcasting C. Sketches for Reform: Privileging Civic-Minded Uses V. CONCLUSION I. INTRODUCTION

    Decentralization, user empowerment, and interoperability are engineering principles that have made the Internet an unrivaled medium for innovation today. (1) The Internet's remarkable growth has forced policymakers and legal scholars generally to privilege these principles above all others in their approach to Internet governance. Prominent legal scholars, for example, have enlarged the normative significance of decentralization, user empowerment, and interoperability by identifying them with prevailing administrative law doctrine and policy. Some would have governmental policymakers defer substantial first-instance rulemaking authority to private self-regulatory organizations, like the Internet Engineering Task Force (IETF), for which decentralization, user empowerment, and interoperability are a priority. (2) The geographically dispersed engineers and application designers who populate the Internet, these legal scholars assert, are far better suited than centralized agency bureaucrats to develop the rules for broadband network management. (3) Besides, the strongest version of this argument goes, the deliberative processes by which the IETF develops transmission standards are far more transparent and democratic than extant governmental processes. (4) This administrative approach does not recommend any particular substantive rules apart from those developed by standard-setting organizations, like the IETF. (5) I refer to this as the "technological" approach. The FCC's decision in August 2008 reprimanding the Comcast Corporation for blocking access to applications that require high bandwidth without subscribers' consent is the most recent and prominent articulation of this approach. (6)

    Other legal scholars identify the engineering principles of decentralization, user empowerment, and interoperability with economic analysis--what I call here the "economic" approaches to broadband policymaking. Adherents of emergence economics, for example, draw on the theory of network effects to argue that universal access and nondiscrimination rules (colloquially referred to as "network neutrality"), in particular, will help to grow the economy and, as a result, improve consumer welfare. (7) Writers in this line tend to argue for a policy of network neutrality that would, first, bar network owners and broadband service providers from blocking users' access to online applications and content without their consent, and, second, forbid network owners from unreasonably discriminating against unaffiliated applications, services, and content. (8)

    Adherents of classic liberal economic theory, on the other hand, posit that centralized government administration (through, for example, the enforcement of network neutrality) is a hindrance to the efficient operation of the broadband market. (9) A competitive market, comprised of rational and enterprising network owners, broadband service providers, application developers, and casual users is far more efficient at producing and distributing information goods and services. (10) Policymakers, these theorists argue, should apply a light regulatory touch and let market actors privately organize the structure and flow of communications. (11) Consumer welfare may even benefit from arrangements in which network owners collaborate exclusively with certain application and content providers at the expense of others. (12)

    This Article attempts two overlapping interventions: First, it develops a novel three-part taxonomy of broadband governance and policy. Second, it demonstrates that the prevailing approaches are not fully adapted to the uniquely public and political influence of communications. Of course, as an administrative matter, it makes perfect sense to delegate complex engineering matters to the engineers and entrepreneurs in the field. Such matters are often far better suited at finding the most sustainable and welfare-maximizing models for information distribution and production. But, generally, the deferential posture of the prevailing approaches surrenders too much at the expense of historically important objectives of communications policy: namely, universal access and robust public life. It would be as if the postal service delegated most or all first-instance postal policymaking to highway engineers, oil and gas companies, truck manufacturers, and bulk-paper producers because they know more than everyone else about associated technological or economic problems.

    Thus, the Article's chief aim is to make plain that the prevailing approaches to broadband Internet policymaking are unduly entranced by the promise of innovation and commerce for their own sake. (13) These approaches do not contemplate the fact that communications are vital to the operation of civil society in democracy, irrespective of their impact on innovation and commerce. Accordingly, I argue for a rethinking about broadband policymaking. The FCC's presumptive administrative deference to, on the one hand, the transmission standards set by the IETF and other expert nongovernmental organizations and, on the other hand, private ordering is flawed particularly now that the Internet is no longer the boutique curiosity of even fifteen years ago.

    Policymakers should give more serious consideration to the third category in the three-part taxonomy laid out here--civic participation. Some writers have looked to a theory of republicanism and its normative claim that citizens ought to be able to engage each other on matters of common concern in delimited public forums. (14) While this conception offers important insight on the role of communications in democracy, its recommendations for substantive law and policy do not directly address the central problem I raise here: whether or when deference to private self-regulatory organizations on communications matters is appropriate. Republicanism, moreover, does not map well on to the decentralized network design of the Internet. Its proponents' characteristic recommendation for delimited public forums is practically impossible to implement as so much of the content and uses comprising the Internet are diverse. (15)

    Participatory governance theory, on the other hand, offers a more fitting civic-minded conception of communications policymaking. It recommends public involvement in policymaking in varying degrees depending on the subject matter. I argue here that communications is one policy area that should always be legitimated one way or another by public processes and not subject to ad hoc liberal deference to nongovernmental self-regulatory organizations. Indeed, as a historical matter, policymakers have implemented public-regarding models particularly because of communications' unique public role. (16)

    In this Article, I argue that, in their adamant failure to accommodate public-regarding consideration, the technological and economic approaches to broadband policymaking have not adapted to the social influence of the Internet. I organize this argument into three parts. Part I analyzes and critiques the FCC's August 2008 Comcast decision, observing that it is only the most recent iteration of the technological approach. I conclude that, at a time when the Internet is as pervasive as it is today, such an approach is no longer sufficiently legitimate because it defers to engineering principles as though they have the moral force of law. This move, I argue, is inadequately reflective of the uniquely social and volitional aspect of communications. In Part II, I argue that the technological approach to broadband policymaking overlaps substantially with prevalent liberal economic approaches to substantive broadband policy. Before critiquing two such approaches, however, in Part II.A, I briefly survey the exemplars of the extant procompetitive norms in telecommunications law and policy since the 1960s. Part II.B discusses and then critiques the emergence economics claim on broadband policy associated generally with arguments for network neutrality and the nondiscrimination principle generally. In Part II.C, I review and critique the classic welfare economics approach to broadband policy. I conclude Part II.D by speculating about how the economic approaches have come to occupy such an influential role in broadband policymaking.

    In Part III, I sketch a complementary normative approach to communications policymaking--one that, I argue, is true to the uniquely public character of communications policy and policymaking. While technological expertise and economic metrics are important, I explain, they cannot account for the unpredictable political and social role communications play in democracy. Broadband policymaking, I argue, has neglected this fact even as, historically, policymakers were attuned to it. Participatory governance theory, I assert, shows us the way forward. Its attention to the processes of policymaking or governance exposes the flaws...

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