Q&A: Professor of Internet Law Jonathan Zittrain

Google and Verizon shook up the tech world last week when they issued a set of proposals about net neutrality. Critics declared that Google, long a proponent of net neutrality, had sold out its principles, and that, as a result, the open Internet that we enjoy today would soon be a thing of the past. We asked Jonathan Zittrain, a professor of Internet law at Harvard Law School and co-director of Harvard’s Berkman Center for Internet & Society, what he thinks of the proposal. He wrote us answers via email.

NEWSWEEK: In general what do you think of this framework and what impact will it have on consumers? What's the big risk here? Why do people get so freaked out about losing "net neutrality"?

Rightly or wrongly, there's a historical distrust of the telecoms carriers by Internet types -- "net heads vs. bell heads" -- representing a general concern about monopoly-style thinking that quite naturally dominated the business models of the early telecommunications giants.  The framework has a lot of missing pieces and a lot of wiggle words, so it's hard to judge much of the impact.  Carriers can't engage in 'undue' discrimination.  They can do 'reasonable' network management.  These definitions would have to be much more fleshed out to understand what the agreement means.  I suspect the authors don't have all the answers -- it's complicated, and they may not agree with each other on specifics -- so they've pulled from language the FCC used.

Has Google sold out? Are they no longer the "Don't be evil" company?

The first question to ask is why Google is a party to this agreement at all.  Is it signing in its role as a major content provider and online destination?  Or in its role as a sometime provider of Internet access?  The practical answer may be that Google has argued fiercely against any perceived attempt by telecoms carriers to charge for acceleration (or delivery at all) of Google's content to those carriers' subscribers, and their part of the deal is to climb down from public conflict with the carriers and declare what would suit it.  There, I wouldn't expect Google to do much more than represent its own interests -- which may overlap with that of the average Internet user, but not always.  So I'd take both Google and Verizon at their word that they offer the framework as a suggestion, and then it's up to the public -- and its elected representatives -- to decide what to do with the proposal.

My understanding is that this is just a proposal from Google and Verizon -- they're saying, "Here's what we'd like to do." But the FCC can still decide what is and is not allowed. Yes? (And if that's the case, maybe we should not get all freaked out. People are saying "It's the end of the Internet as we know it," but really this is just a wish list from Google and Verizon.)

The FCC's authority to act here has been circumscribed by the D.C. Circuit in the Comcast case.  So the proposal is less "here's what we like to do" and more "here's what we suggest Congress should do, which is leave as much as possible of this to us rather than to the FCC, after establishing a couple of the ground rules we suggest."

To play devil's advocate for a moment--the carriers seem to be saying that they've been put in a lousy spot. They're supposed to run the wires, pay for all the build-out and infrastructure, but not get paid back in any way. Companies like Amazon, Ebay, Google, etc. are making billions by conducting business over those pipes and don't want to pay anything to help build out the bandwidth. That's kind of unfair to the carriers isn't it?

I have some thoughts on the financial piece of this at http://futureoftheinternet.org/what-matters-in-net-neutrality.  Surely the carriers are entitled to a business model, and there are plenty of them that appear uncontroversial -- including simply charging their subscribers for access.  People argue for limitations on other ideas grounded in the reduced competition that exists for broadband, the difficulties in switching from one provider to another, and the lack of transparency in practices that make it hard for consumers to apply market pressure by voting with their feet.  My worry is less about the concept of charging Amazon or eBay for access to one's own subscribers, and more about a complex web of individualized (and confidential) deals so that any new presence on the Web can't be assured of a universal audience until major ISPs are brought on board and made part of the deal.

On the wireless front, why did Google and Verizon exclude that from the framework? What's the big master plan there? What are they up to?

I suspect Verizon would say it's because bandwidth is much more precious in the wireless space, so it ought to have maximum flexibility to determine how to allocate it.  But there isn't exactly a ton of competition in that space, either.

Other big questions include the idea that the FCC should no longer be able to make rules for the space, but only adjudicate case-by-case, giving "appropriate" deference to private dispute processes.  (Of course, what's appropriate is not spelled out.)  And the notion that unspecified "additional or differentiated services" could be offered without any particular regulation.

Bottom line: I don't support the FCC being taken out of the picture the way this deal envisions, but I'm pleased to see an embrace of transparency in network practices and much of network neutrality at least in the wired space.  I suspect this document will frame the next phase of the debates here, and other carriers and content providers will be asked if they can line up with it or if they object.  Also, as a practical matter, I'm not sure that what the FCC would be empowered to do by Congress would be significantly different than what this deal contemplates.

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