Intellectual Property Law

The McCain tech plan

By Susan Crawford

Disclosure: I am not affiliated with either candidate. If you’re commenting here, please let us know whether you’re working for a campaign.

The McCain tech plan is out.  A few things leap out.

First, here’s the fact:  We don’t have a functioning “free market” in online access.  John McCain thinks we do. That kind of magical thinking takes real practice.

Instead, we’ve got four or so enormous companies that control most of the country’s access, and they’re probably delighted that McCain is promising not to regulate them.

The “net neutrality” movement is not about “regulating the internet.”  That’s twisted.

You can think of the internet as a conversation being had by more than a billion people walking along a sidewalk.  Big sidewalk.  Net neutrality would require that the sidewalk keep out of the conversation - not limit it, shape it, charge it based on how interesting it is, or butt in.  Right now, our sidewalks are in the business of deciding what kinds of conversations can happen, and they’re no longer required by law to just lie down and act like sidewalks.  That’s a problem.  We’d like the sidewalks, those basic transport elements, to be separate from the conversation.

Just as the power companies can’t dictate what kinds of purposes people use electricity for, the providers of basic general-purpose communications transport shouldn’t be able to dictate how we communicate.

We used to have thousands of independent ISPs in this country.  If that was still the case, we’d have the market McCain seems to believe in - the ISPs would be competing, and some of those ISPs would choose to be non-discriminatory.  We don’t have that any more, because the sidewalk (back to that image) has been freed to rise up and become a set of channels, stepping-stones, and other traffic-shaping capacities that affect the conversation - it’s “vertically integrated.”  And all of the ISPs have been killed off or absorbed into a few large companies.

Not having basic, general purpose transport in place (to which lots of independent ISPs can connect) means no predictability for businesses or their investors.   It also means we’re empowering a few large gatekeepers to decide which companies will be effective.  That kind of private control over communications is something we’ve always cared about avoiding - until very recently.

Restoring basic, general-purpose, nondiscriminatory transport is not “regulating the Internet.”  It’s making the Internet - the conversation, remember, not the sidewalk - possible.

We can’t deal with all the sidewalk shenanigans on a case-by-case basis.  That just helps people who are good at hiring lawyers and delaying.  Instead, we need a rule and a separation of function, in my view.  You’re either a sidewalk or you’re not.

Second, the tax credit idea, under which McCain suggests there should be a credit of 10 percent of wages for each research & development employee, seems to be sort of a handout without real substance.  Don’t we want to encourage new investment and new jobs?  Why reward just the status quo?  I’m all for research, but this doesn’t seem very visionary.

Full post as published by Susan Crawford Blog on August 14, 2008 (boomark / email).