Nilay Patel

Federal Communications Commission Chairman Ajit Pai released his proposal to kill net neutrality today, and while there’s a lot to be unhappy with, it’s hard not to be taken with the brazenness of his argument. CHairman Pai thinks it was a mistake for the FCC to try and stop Comcast from blocking BitTorrent in 2008, thinks all of the regulatory actions the FCC took after that to give itself the authority to prevent blocking were wrong, and wants to go back to the legal framework that allowed Comcast to block BitTorrent. 

[Commentary] [J]ust conceptually, the idea that Federal Communications Commission Chairman Ajit Pai will get Comcast and AT&T and Verizon and every tiny little regional Internet service provider to put strong open internet provisions in their terms of service agreements is pure nonsense.

First, terms of service agreements change all the time. And people freak out about them, and nothing happens. Do you think the iTunes Terms and Conditions are there to protect you? Facebook’s? Verizon’s? Come on. So what’s to stop Comcast from making this deal today, and then changing its terms a year from now? (It’s certainly not the presence of meaningful access competition in the marketplace!) How will the FTC track every single ISP’s terms of service language, the differences between them, and enforce any sort of consistent, reasonable policy?

Second, let’s say Chairman Pai manages to thread the needle and gets every ISP in the country to agree on the exact same open internet language in their terms of service, and further secures a commitment that the language will remain in their terms in perpetuity. Isn’t that functionally identical to... a law? Shouldn’t we just have... a law? And don’t we already have that law? What specifically is Pai trying to accomplish if he agrees that open internet principles are important?

Snap, Inc., the parent company of Snapchat, filed its IPO paperwork Feb 2, and there’s lots of information about the company and its business contained inside. The company is required to list the various risks and threats it might face as it attempts to grow, and while some of them seem obvious — the company points out that it doesn’t control the iOS and Android operating systems the Snapchat app runs on, for example — there’s also a pointed callout of potential network neutrality changes. They wrote, "If the FCC, Congress, the European Union, or the courts modify these open internet rules, mobile providers may be able to limit our users’ ability to access Snapchat or make Snapchat a less attractive alternative to our competitors’ applications. Were that to happen, our business would be seriously harmed."

[Commentary] Here are two lines from T-Mobile’s latest "Uncarrier" missive, in which the company proclaims that it has "listened to customers" and is changing its new T-Mobile One plans less than two weeks after announcing them. The first line: "Everyone gets unlimited talk, unlimited text and unlimited high-speed 4G LTE smartphone data on the fastest LTE network in America." The second line: "With T-Mobile ONE, even video is unlimited at standard definition so you can stream all you want." At this point it appears that T-Mobile is operating with definitions of "unlimited" and "data" that are are only tangentially related to reality. For example, most people understand the word "unlimited" to mean "without any limits or restrictions," but T-Mobile’s definition clearly means "without any limits except for a hard restriction on HD video that can only be lifted for $3 a day or $25 a month."*

Google has been working on a suite of tools that would let kids more easily use its services with permission from their parents, including a child-safe version of YouTube.

Under the Children's Online Privacy Protection Act, sites that want let kids under 13 sign up need to get permission from their parents. But if companies actually build out products and services that let parents constructively manage how their kids use their sites, it's far more likely parents will actually sign up and give permission upfront.

[Commentary] The prices we pay for art are entirely set by distribution and scarcity. This is a fundamental truth of media: trying to create artificial scarcity with technological solutions that prevent zero-effort copying causes so many problems that that Steve Jobs once wrote an angry open letter to the music industry demanding that it drop digital rights management technology from song files.

Museums are trying to figure out how to get people to pay for GIFs, but there are entire artistic movements dedicated to stripping away copyright-protection tech from digital artwork and sharing it widely. The physical scarcity that built the media industry is gone, and it ain't coming back.

[Commentary] By now you've probably heard about the controversial Facebook study in which the company altered the news feeds of some 698,003 users for a week in 2012 to determine if seeing more happy or sad posts affected the emotional content those users posted next. There's been an enormous backlash: the study itself seems particularly dumb, there's a chance Facebook acted unethically or illegally by not disclosing the study to users, the researchers involved are apologizing, and in general it seems like Facebook did something really, really bad.

But here's the thing: manipulating the News Feed is Facebook's entire business. Where Google makes advertisers bid against each other to display ads that appear when you search for certain keywords. Facebook does something a fair bit simpler: it just doesn't show users everything in their News Feeds.

Of the 1500 potential items your friends will share on Facebook in a given day, you'll likely only see 300 of them -- and if an advertiser or marketer or news organization wants to get more eyeballs from Facebook, they can pay to make sure their stuff shows up in your News Feed, carefully targeted to keywords and demographics. Compare that to Twitter, which firehoses everything your friends share at you in real time.

It's better for news junkies, but Facebook can make promises about how many and what sort of people will see something that Twitter can only dream about. There's so much value in showing you things from your friends on Facebook that it's the revenue model for an entire class of viral media startups. Taco Bell pays BuzzFeed to create shareable advertising, and then pays Facebook to tweak the News Feed to make sure that advertising shows up when it's shared.

The Supreme Court issued two major rulings: in Riley v. California, the court required cops to get a warrant before searching cellphones, and in American Broadcasting v. Aereo, the court banned the cloud-TV service Aereo from retransmitting broadcast television signals over the Internet. But both of these cases are also fundamentally about technology -- specifically, what happens when technology moves so fast that the law simply doesn't understand it anymore.

When that happens, it's up to the courts to provide answers to difficult questions: is searching a smartphone like searching a pack of cigarettes? Can thousands of tiny antennas and some clever code dance around copyright law well enough to create a new business model?

To answer these questions is to answer the hardest question of all: can you put the technology back in the box, or do we need to change society around it for good? The Supreme Court took a huge step when it agreed 9-0 that the smartphone revolution requires a change in how we interpret the Fourth Amendment. But the hard part for our legal system will be the thousands of little steps we need to ensure all those smartphone apps can keep changing the world.

[Commentary] Allowing Comcast or Time Warner Cable to build fast lanes on the internet means that they'll have enormous incentives to push everyone towards them -- and almost no incentive to improve the miserable standard experience in the slow lanes, which will remain expensive and congested.

Want Netflix to work better? Just pay Comcast a little more. You're a social networking startup that wants to take on Facebook? Better factor in the ISP tax to make sure your content loads as fast as Zuckerberg's. This is basically free money for broadband providers; Comcast throttled Netflix traffic for years, but when the company finally broke down and paid, speeds shot up 65 percent.

This is lawyer-money, not engineer-money. Everyone involved should feel dirty. Let's call the opposite of net neutrality broadband theater: the cable industry will claim it's spending a lot of money on innovation to make us feel better, but absent any competition or oversight, the rest of us will end up standing around like most of us do in airport security, with no shoes on, wondering where our dignity went.