No doubt the government’s Green Paper about forcing ISPs to disconnect persistent illegal file-sharers will stir up a rant-storm on the blogs of net libertarians, but as I’m not one of them my calm remains unruffled. On the contrary, the paper may just be a sign that government has finally “got it” about the internet: got, that is, the fact of its own inability to regulate undesirable net activities in the way committee after committee keeps recommending. It may have finally twigged that the internet is almost unregulatable, but if there is a point of traction, that point is the ISP.
Whether or not you believe the internet needs regulating depends upon whether or not you believe it’s a Public Good. Readers under the age of 30 can be excused if they don’t remember what Public Goods are, because little more than lip-service has been paid to them during most of their lifetime. Public Goods are services we all share which are important for our collective wellbeing: they include the roads, defence of the realm, police, and once upon a time the National Health Service, the railways and the buses. Fashionable ideology has it that such iniquities inhibit initiative and must all eventually be privatised. Nowadays, you’re far more likely to hear the word Good used as the opposite of Evil, in that return to medieval metaphysics for which we can mostly thank Reagan, G W Bush and Luke Skywalker.
That non-metaphysical Goods exist is beyond dispute – they’re simply the conditions that any particular sort of living creature needs to thrive. Most living creatures share a small set of basic Goods, which are: 1) Space. A human needs around three cubic feet of space, and if deprived of this by, say, a hydraulic press will die in less than a second. 2) Air. We die in around three minutes without that. 3) Moderate temperature. If exposed unprotected to temperatures below the freezing point of water we die within hours. 4) Water. Without it we die in days. 5) Food. Without it we die in weeks.
Beyond these five, Goods start to differ between species and begin to clash, the lion’s Good being the antelope’s Very Bad Indeed. There are bacteria that don’t like air, while others love being boiled.
So is the internet a Public Good or not? I’d say it is, but I also say that content producers and consumers are a part of the public and deserve to have their interests defended (the fact that I’m one may be an influence here). I’ve heard the analogy with roads used against net regulation, claiming road agencies can’t be held responsible for the way people drive: a dodgy argument because road agencies do have a duty to permit police on to their roads to chase bad drivers. Anyway a railroad would be a closer analogy to the net – if a train operator was carrying boxcars full of illegal heroin into a city every day, most people would probably accept that action should be taken against that operator.
The haphazard and unpredicted way the World Wide Web took off in the 1990s created a structure that leaves ISPs as the only institutions in a physical position to impose regulation. They don’t currently see it as part of their job, nor could they afford the revenue hit, but they could in principle check every packet that came past them down the net – they know the identity of its recipient and most of them already have a mechanism for billing those recipients. If any government really wanted to eradicate law-breaking on the internet – whether child pornography or theft of copyrighted materials – what they’d need to do is: A) Make ISPs legally responsible for the content they convey (as a publisher currently is, but a telephone company is not). B) Make ISPs legally responsible for collecting micropayments for any copyright material they convey.