The War Over Neutrality

How the tech industry learned to stop worrying and love the FCC.

In the 1980s, kiddie comic Pee-Wee Herman popularized "I know you are but what am I" as an all-purpose retort to schoolyard insults. Repeated endlessly, the line worked because it turned an attack back on its originator. But in doing so, it dragged both sides into an unpleasant back-and-forth loop in which any insult, no matter how stupid, was simply slung back at its initiator.

These days, "I know you are but what am I" seems to be the motto underlying the tech-world's regulatory bickering. For years, Internet search giant Google has been pushing the Federal Communications Commission (FCC) to step up net neutrality regulations. By forcing Internet service providers (ISPs) to treat each and every piece of information that passes through their systems equally, Net neutrality regulations would arguably give Google the upper hand in its dealings with ISPs, which would be constrained in how they choose to manage their networks. Google claims its support for neutrality is in the public interest, but the reality is that it is self-interestedly seeking to impose regulatory restrictions on its business partners and competitors.

Yet by pursuing this approach—calling for regulations that may or may not bolster the public good but will certainly bolster its business model—Google has opened itself to similar attacks from its competitors. And now, as in those old schoolyard battles, Google is finding its own attacks aimed right back at itself.

Most recently, Adam Raff, CEO of Foundem, a web tech company, penned an op-ed for the New York Times arguing that the FCC, currently in the midst of ironing out new net neutrality regulations, should broaden the scope of its regulations to include "search neutrality." Raff defines search neutrality as "the principle that search engines should have no editorial policies other than that their results be comprehensive, impartial and based solely on relevance."  Raff gripes that, by sticking his company with low search results and promoting the results for its own services, Google "stifled [Foundem's] growth and constrained the development of our innovative search technology." Indeed, aside from a warning that we may be headed toward a world of Google Everything, he barely makes any effort to argue for the public good, saying straightforwardly that the goal of search neutrality would be to "constrain Google's competitive advantage."

Perhaps that's because, taken on the merits, Raff's proposal is worthless. For one thing, he simply ignores the consumer's right of exit. If Google's search results become less useful, users can easily switch to a competing search engine. To their credit, the decision-makers at Google know this, and that's why they invest so much time and effort in maintaining the quality of their search results.

Nor is it clear what the danger is in letting search engines promote their own products and services. With net neutrality, advocates have at least constructed an array of doomsday scenarios, however unlikely or implausible they might be. But as Freedom To Tinker's Jonathan Mayer notes, "violations of search neutrality…at most increase marketing costs for an innovative or competitive offering." In other words, the likelihood of harm is so minimal that it's not worth regulating.

Of course, the same could basically be said about broader net neutrality regulations. In a recent paper for the Progress and Freedom Foundation, Barbara Espin notes that, "There is little or no evidence that broadband ISPs are plotting to alter the fundamental attributes of the Internet in such nefarious ways or of actual consumer harms from today's broadband network management practices." Documented instances of neutrality violations are almost non-existent, and those that have been identified—like Comcast's slowing of BitTorrent file transfers—have since been settled and corrected.

But proposals like Raff's make clear the way in which neutrality regulation is being used across the tech sector to tear down or keep competitive advantage. As Adam Thierer and Berin Szoka argue in their paper "Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction," the tech industry is increasingly beset by regulatory warfare, in which companies seek to gain or secure competitive advantage not through innovation, but through government-imposed rules restricting competitors' business models. Raff, for example, isn't the only one calling for a form of search engine neutrality: AT&T, which faces stepped-up neutrality regulations in both its business as a traditional ISP and its wireless data service, has knocked Google for "search-engine bias" and called upon the FCC to impose strict neutrality standards on Google.

The end result of these battles could be a tech sector crippled by competing, ever-expanding mandates and restrictions. Thierer and Szoka say we may be witnessing "the first strikes in what threatens to become an all-out, thermonuclear war in the tech industry over increasingly broad neutrality mandates." An absurdist like Pee-Wee Herman might be proud, but in this Internet-scale exchange of I-know-you-are-but-what-am-I, the rest of us stand to lose.

Peter Suderman is an associate editor at Reason magazine.