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Corcoran's Two-Minute Hate

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Image result for emmanuel goldstein

 

My mother turned 100 years old today, on May 29th, 2018. That is a long time to live. Yet a hundred years is still close to forty years younger than the principle of net neutrality. They did not call it “net neutrality” in the 1870s, they referred to it as “no unjust or undue discrimination”. The term net neutrality was  invented by Professor Tim Wu to dress up some ancient principles of common carriage in a modern guise.

Canada passed the Railway Act in the 1870s, soon after Confederation. Indeed, you could say that Canada was made into a federal state to provide a stable structure of financing for the railway that would connect its far-flung parts. Even so, the idea of common carriage is older than the railways. It goes back to notions of equal treatment to those who held themselves out to supply a transport service to others for a fee, such as ferrymen. It is a legal idea of fairness, which is appraised against a fact situation, and implies someone who makes a judgment about the behaviour of the carrier in question.

Despite the ancient origins of the concept, and the broad support of the idea among conservatives, liberals and consumers, which  Terence Corcoran of the Financial Post admits, he treats the idea to a periodic two minute hate in his editorials. To pursue the simile to Nineteen Eighty Four, in Corcoran’s vision, Professor Michael Geist gets to play the role of Emmanuel Goldstein, ceaselessly plotting to undermine the regime of Big Brother by nefarious acts of thoughtcrime against the Truth, as Big Brother proclaims it. Michael Geist is not alone, as Mr. Corcoran is forced to admit. The Internet Society, Canada Chapter, ardently supports the concept. Most others not in the pay of large carriers support it. So does the CRTC.

 

The severity of the condemnation of net neutrality by Mr. Corcoran approaches a demented hatred. I believe that, if he understood the concept he might still disagree with it, but I have difficulty imagining why he is so provoked, so vexed, so enraged, by the constraints that common carriage regulation imposes on carriers.

An official with the Canadian Radio-television and Telecommunications Commission (CRTC), appearing before a Commons committee in Ottawa in February, defined net neutrality: “All traffic on the internet should be given equal treatment by internet providers, with little to no manipulation, interference, prioritization, discrimination, or preference.” A good food-industry comparison would be to attempt to mandate that grocery store chains, food distributors and other market intermediaries must carry all products at all times, without discrimination or preference.

The issue is not whether carriers may discriminate. They can and do, with state support. In many cases they should, in most cases they should not, and the CRTC has established those reasonable limits. What is of the essence is that there is an arbiter concerned with determining whether discriminations and preferences are “just” or “unjust”, “due” or “undue”, not a blanket prohibition of every kind of discrimination. Corcoran would throw out the law, the judge and the court to satisfy some impulse of his that escapes my understanding.

I can understand a person saying that our roads and highways are overregulated, that our speed limits are too low, that IQ tests should be required to hold drivers’ licences, that special lanes should be established for the rich or the handsome, or Financial Post writers – I can understand making the arguments. What I do not understand is holding that there should be no regulation of the flows of traffic whatsoever, except as the owners of the toll roads decide. “Parliament shall pass no laws inhibiting the freedom of large carriers to control traffic and charge what they see fit.” That is Terence Corcoran’s argument, as I see it, and if so, it is too stupid to be taken seriously.

Which explains why it is not taken seriously, except by people in the ideological thrall of large carriers – of whom there are more than you might suppose.

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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