Silicon Insider: Neutrality vs. Free Speech

I'm completely confused about "Net Neutrality," but I'm very damn certain about "Net Freedom."

Chances are that even if you followed the recent vote by the House of Representatives voting down new regulations regarding Internet "neutrality," you are still confused about whether this was a good or bad thing.

Part of the problem was that by the time of the final vote, the bill had been so compromised and rewritten to scoop up votes that even proponents and opponents seemed confused. For example, within minutes of the vote, I received an e-mailed press release from the Competitive Enterprise Institute -- what you would normally consider to be a libertarian, free-market think tank, congratulating the congressmen for striking a blow against equal access to the Web.

If that seems odd, consider that, in doing so, the CEI was siding with telecommunications companies (and, apparently, Microsoft) against various consumer advocacy groups, Google and eBay. But wouldn't you think that the content providers would want tiered pricing on the Net, and the "pipeline" folks would want it wide open?

In Congress itself, the vote pretty much split along party lines, with Republicans voting against 'neutrality' and Democrats voting for it. On the one hand, this might seem counter-intuitive, as the GOP is supposed to be the party of free competition and the Dems the promoters of regulation in the name of fairness.

But in the end, this seems to be one of those bits of legislation that is so twisted up with side deals, addenda, false labeling and hidden motives -- probably on purpose -- that it'll be hard to know whether your afore it or against it until you see its effects… if there ever are any, because some other legislation will likely come along to reverse it.

A Battle on Two Fronts

In the meantime, I think all you need to know about Net Neutrality is that there are two arenas of combat here. The first is in the business world, where the telcos want to be able to create new private networks -- so-called "splinternets" -- where they can tier both services and pricing. The big Net content providers don't want that because it surrenders some of the control over their businesses and also opens the door to potential new competitors.

Conservatives are against Net Neutrality because they believe it stifles competition on the Net and innovation in the Net. They also don't like the idea of the government acting as arbiters of e-business. Liberals are for Net Neutrality because they believe any kind of stratification of Web delivery will benefit the affluent over the needy -- and that is something that needs to be fought with the power of government. All the other claims about being in the pocket of big business or, conversely, against business altogether are just the usual smokescreen put up by the two sides to slander each other.

On the other hand, I still may not know what I'm talking about. If you're curious, go study the bill yourself and the debates on both sides. I, for one, am not going to lose much sleep over it.

The Issue of Speech

But, if I'm not too concerned about "Net Neutrality," there is one matter that sets off alarm bells in my head -- freedom of speech. This is something both sides of the aisle ought to be able to agree upon -- well, except for the fools who believe that (unlike their enlightened selves) other people are too dangerously stupid and gullible to be allowed to hear 'hate' speech.

I suspect that most Americans believe that 'speech' (i.e., opinions and content) on the Web should be wide open -- as long as it isn't obviously treasonous, illegal (drugs, kiddie porn), or unsuitable material made available to kids (porn). We despair over the fact that the process isn't perfect -- pervs lurking around MySpace, for example -- but that seems more an argument for enforcement than for censorship.

But it's the Internet isn't the United States, it's the world. And American companies doing business on the Web are finding themselves facing the same dilemma older U.S. corporations encountered when they went global 50 or 100 years ago. They are finding that other nations operate by rules that are not only unlike those at home, but may even be illegal by U.S. laws.

Older readers may remember the scandal in the 1970s when some aerospace companies were caught making pay-offs to foreign governments to land plum contracts. It was so bad that a buddy of mine, who was working a Lockheed at the time, when told that there would be cutbacks in his departments, raised his hand and asked, "May I please be transferred to the Foreign Bribery division?".

But despite the transgressions, it's possible to sympathize with the moral quandary in which these companies found themselves: In order to grow, keep their employees and fulfill their responsibility to shareholders, they had to expand their businesses to other countries. In some of those other countries, bribery was an accepted form business -- and if the U.S. company wasn't willing to participate, the contracts would go to international competitors who could.

Ultimately, it was decided that bribery was one of those boundaries beyond which U.S. companies could not go -- even if it meant losing business -- because it degraded the company itself, it undermined the spirit of real competition, and it raised the general acceptance of corporate criminality here in the U.S.

Looking back, it was the right decision. Forced to compete honestly, U.S. companies still won by being more innovative, better run and offering superior customer service. By not getting down in the mud with our international competitors, we raised the quality of business competition almost everywhere.

Complying With Foreign Censorship

Now American corporations face a new moral dilemma… and so far they are doing a lousy job of responding to it. Perhaps that's because the challenge is much more complex and nuanced: companies such as Google and Yahoo! aren't being asked by other countries to do anything as obvious illegal as passing envelopes full of money under a table somewhere. Rather, it is merely suggested that if they want to continue doing business in certain totalitarian (China) and authoritarian (the EU) societies they need to censor themselves of unwanted content.

It's a subtle request that lends itself to easy rationalization. After all, it's not as if Google is actively doing anything to the Chinese people – the company's marvelous service remains intact to help students and entrepreneurs and researchers… minus just a few items. What's the harm in that?

Ditto with hate speech. Who needs those kinds of troublemakers anyway? If the Europeans don't want certain political content on their Web, who can blame them? And if the Chinese say the Falun Gong is a trouble-making cult, who's to say they aren't right?

Those questions are already being answered. Once you start catering to those who want to crush free speech, it gets harder and harder to stop. Next thing you know, like Yahoo!, you are turning over the names of supposed bad guys to an even badder government. Or, like Google, your practice of censoring 'hate' speech overseas comes home to the United States -- and bloggers who have the temerity to suggest a link between Islamic fundamentalism and terrorism suddenly find themselves dropped from Google News Headlines (while mouthpieces of those same fundamentalists remain).

The recent comment by Google co-founder Sergey Brin that the company might have made a mistake caving in to the Chinese government suggests that, for all of its public confidence, these actions didn't sit well inside Google either. This should worry Google management: one of the quickest ways to destroy employee morale and lose top talent is for your people to begin having moral qualms about working there.

At the same time, to ask the Googles of the world to give up the Chinese market is a lot like asking them to commit business suicide. That market is just too big to surrender -- not just to existing competitors, but also all of the new ones that will spring up in the face of all that untapped demand.

Branding Your First Amendment Operation

So, is there a way to solve this dilemma, to square the circle of competitive business versus the First Amendment? Maybe.

What if all U.S.-based companies that do business on the Web were asked to commit themselves to operating under the First Amendment everywhere in the world? Those that agreed would obtain a single notation on their Web address -- say, a '1' after 'www' -- as in "www.1.google.com?" In fact, why not open this offer to any company in the world willing to abide by the rules of free speech as defined by the Bill of Rights and all subsequent case and precedent? Would this be U.S.-centric? Heck yeah, just like "all men are created equal." The URLs of businesses that cannot or will not abide by these strictures would simply remain unchanged. No harm, no foul -- but at least we would know where they stand. Instead of hiding their compromises, let's get their corporate ethics right out front.

Who will monitor compliance to this agreement? Now we get into the same old Left-Right debate: government agency or self-monitoring? I vote for some kind of Army of Davids approach: let millions of Web users monitor violations, and some kind of consortium hear cases and render judgment. No fines, no punishment other than taking away that '1' -- which should be more than enough.

But is that single digit sufficient reward for abiding by the rules of free speech? I think so. But, as long as we now have a Non-Neutral Net, how about if the Telcoms create a special Splinternet for the good guys?

This work is the opinion of the columnist and in no way reflects the opinion of ABC News.

Michael S. Malone, once called the Boswell of Silicon Valley, is one of the nation's best-known technology writers. He has covered Silicon Valley and high-tech for more than 25 years, beginning with the San Jose Mercury News, as the nation's first daily high-tech reporter. His articles and editorials have appeared in such publications as The Wall Street Journal, the Economist and Fortune, and for two years he was a columnist for The New York Times. He was editor of Forbes ASAP, the world's largest-circulation business-tech magazine, at the height of the dot-com boom. Malone is best-known as the author or co-author of a dozen books, notably the best-selling "Virtual Corporation." Malone has also hosted three public-television interview series, and most recently co-produced the celebrated PBS miniseries on social entrepreneurs, "The New Heroes." He has been the ABCNEWS.com "Silicon Insider" columnist since 2000.