[governance] Re: The Internet (as we know it) can never be "private"

Paul Lehto lehto.paul at gmail.com
Mon Jul 18 11:24:58 EDT 2011

On 7/17/11, Lee W McKnight <lmcknigh at syr.edu> wrote:
> Hi Paul,
> Been enjoying the dialog. Am off on overdue holiday tomorrow so won;t
> belabor point now, but as to:
> "Public = Open and Private = Closed"
> Well things are more complicated than that in the Internet economy.

You could have saved  yourself some trouble had you quoted even a
portion of the rest of the sentence in which "Public = Open and
Private = Closed" appears.  Adding another clause or two shows that I
was already admitting there are lots of exceptions (which you call
"complicated").  I still maintain that whenever public departs from
"open" and private departs from "closed" then the situation is, at
least, unusual or laudatory (a private owner opens their land to the
public freely), or starts to become controversial or a subject of
discussion, and in the more extreme cases constitutes an actual or
alleged violation of law (private owner sues in court arguing that
administrative regulation of the environment constitutes a "taking" of
his private land rights for public use, for which the landowner claims

The fuller quotation is and was: "Despite lots of exceptions and
cross-over, the baseline from which we argue or reason our way to
exceptions is still Public = Open and Private = Closed,[...]"

I stand by that statement after reading all the comments.  And, if you
think about it, given the way I admit of many exceptions, it would be
difficult to show my statement to be outright wrong.

> Anyway, to tie this back to the discussion on interconnection models and
> costs, and 'public' and 'private' in that context: in my own view,
> ultimately the Internet is public because it is built upon open, public
> (non-proprietary) standards, courtesy of IETF.

And it is public for other additional reasons as well.   Ultimately,
the dualistic "public/private" dichotomy is not terribly useful
because private is not purely private nor is public usually purely
public, and this reality leads to lots of confusion.  One can see
people implying on this list that if something is private it's "off
limits" to governmental law, which  is just extremely false.  Even the
classic totally "private" contract between two privacy-loving
individuals relies upon numerous bodies of publicly-passed laws or

For the sake of clarity, everyone on this list should understand and
apply a key distinction: (1)  Government acting to create legal and
infrastructural "frameworks for freedom" (such as contract law) that
include protection against things like oppressive or unconscionable
contracts, which protections should not be lumped into the same
category of government intervention as censorship, VERSUS (2) the more
odious category of governmental "regulation" that attempts to control
the content of speech, or set forth legally privileged classes or
legally discriminated-against classes.   By broadly criticizing all
laws or governmental action, such rhetoric (a) goes way too far and
criticizes the legal frameworks of freedom (so to speak), and (b)
implies that there is not any substantial legal control of internet
users' freedom without government intervention, which is totally false
given that corporate contracts (which are legally enforceable in
court) control internet users' rights and experiences, and are often
riddled with all of the speech suppression and other problems
associated with governmental laws.   The main difference is that
Constitutions protect us against governmental action of this kind by
giving us a cause of action for interfering with free speech, but with
corporate action against free speech we do not have a cause of action
under the Constitution because they are "private" parties.

The bottom line is that if one wishes to preserve freedom on the
internet, or create it, simply making sure that the government DOES
pass the "frameworks of freedom" in terms of laws and also that the
government DOES NOT do anything odious like censorship does not solve
the problem at all.  Government restraint from affirmative wrongs like
censorship leaves the more powerful private parties free to set the
law of the internet via contract and terms of service, and to be as
oppressive or even more oppressive of speech and expression.  (Most
corporate employers feature, literally, zero freedom of speech, and
there's little or nothing anyone can do about it).  Therefore, real
freedom on the internet requires government action in the nature of
consumer protection and rights protection, all within the context of
setting up the "frameworks of freedom" just as government does in
structuring free markets, provided it also provides robust protections
for the abuses of market actors against other persons.

>  trying to revert to voice-(half-) circuit
> regulatory models for - packet data networks among various contracted
> parties - doesn't help much.  And especially not for developing countries.
> Encouraging a couple data providers competing, in bringing bandwidth to and
> from - anywhere - usually works better, faster, at making more bandwidth
> available at lower cost.  The elusive public (interest) in that environment
> is - where we are kind of stuck at the moment.

The comment was made earlier, and some offense taken, that seeking to
equalize in some way the email costs of Africa and smaller countries
generally is seeking a "handout"  - and the idea was dismissed.  The
reply was that we are discussing policy here, and what policy ought to
be.  As such, I agree with the reply, and don't think the notion of
equal costs or making them at least more equal is preposterous or
anything like that.  Let me give an example.

Most countries, including the USA, have set up postal services for
centuries, and by policy in the USA, a stamp to deliver a letter next
door presently costs 44 cents, and a stamp to deliver a letter
thousands of miles away to Alaska for example is also the same 44
cents.  Service to very rural areas by the post office causes losses.
BUT PUBLIC POLICY at the governmental level has resoundingly, and for
over a century now, affirmed that the interest of tying the country
together in communications exceeds the consideration of financial
losses in serving rural areas that are high cost.

By the same taken, a reasonable global governance system for the
internet could easily provide, if it elected to, that the interest in
connecting the globe as a whole was of sufficient weight that
"postage" costs for email on the internet should be the same no matter
whether the email is domestic or going to Kenya.

Note that I am not necessarily saying that I'm moving this thread to
defend such a proposal on the merits.  But I am saying that it is
reasonable to suggest that costs should be equal, as there is ample
precedent with postal services, and reasonable policy makers have long
concluded that the interest of tying everyone together on
communication networks trumped the interest in making the more
expensive connectees pay their own way for their relatively higher

It's OK to marshal reasons in opposition to such an equal cost model,
but I don't think it's reasonable to dismiss it out of hand as a "hand
out" and nothing more.  Even if Roland and Lee are correct, and
perhaps they are, such proposals for equalizing costs are worthy of
discussion.  Please note that in a private or privatized internet,
such goals of tying everyone together at approximately equal cost are
impossible for corporate business models to deal with.  Competition
may lower prices (eventually) but competition will never create a
e-postal service that serves everyone equally.  That requires
government.  (Or, an extremely rare philanthropic visionary running a
monopolistic corporation world-wide, which is unlikely to say the
least, and subject to change upon that death of that visionary)

Paul Lehto, J.D.

Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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