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Olivier Sylvain, Network Equality, 67 Hastings L.J. 443 (2016), available at SSRN.

From the halls of Congress to the cocktail parties of Davos, “innovation” is celebrated as the central rationale for Internet policy. Whatever its utility decades ago, the term is now overused, a conceptual melange that tries to make up in capaciousness what it lacks in rigor. Fortunately, legal scholars are developing more granular accounts of the positive effects of sociotechnical developments. Olivier Sylvain’s Network Equality is a refreshing reminder that Internet policy is more complex than innovation maximization. Sylvain carefully documents how access disparities interfere with the internet’s potential to provide equal opportunity.

Network Equality makes a critical contribution to communications law scholarship because it questions the fundamental terms of the last twenty years of debates in the area. For at least that long, key internet policymakers have assumed what Sylvain calls the “trickle-down theory of Internet innovation”—that if policymakers incentivized more innovation at the edge of the network, that would in the end redound to the benefit of all, since increased economic activity online would lead to better and cheaper infrastructure. Now that once-“edge” firms like Facebook are rich enough to propose to dictate the terms of access themselves, this old frame for “net neutrality” appears creaky, outdated, even obsolete. Sylvain proposes a nuanced set of policy aims to replace it.

As Susan Crawford’s Captive Audience shows, the mainstream of internet policymaking has not inspired confidence from American citizens. Large internet service providers are among the least popular companies, even for those with access. They also tend to provide slower service, at higher prices, than ISPs in the rest of the developed world. But the deepest shame of the US internet market, as Sylvain shows, is the troubling exclusion of numerous low-income populations, disproportionately affecting racial minorities.

Sylvain is exactly right to point out that these disparities will not right themselves automatically: policy is needed. Nor should we embrace “poor internet for poor people,” ala the “poor programs for poor people” so common in U.S. history. The situation in Flint shows what happens when the state simply permits some of its poorest citizens to access lower-quality infrastructure. It is not hard to imagine similar results when catch-as-catch-can internet access is proposed as a “solution” to extant infrastructure’s shortcomings.

Sylvain shows that enabling statutes require better access to telecommunications technologies, even as the policymakers charged with implementing them repeatedly demonstrate more interest in innovation than access. Their “trickle down” ideal is for innovation to draw user interest which, in turn, is supposed to attract further investment in infrastructure. But in a world of vast inequalities, that private investment is often skewed, reinforcing structural inequalities between the “information haves and have nots” regarding access to and use of the internet.

Treating the internet more like a public resource would open the door to substantive distributional equality. We generally do not permit utilities to market cheaper-but-more-dangerous, or even intermittent, electricity to disadvantaged communities, however “efficient” such second-rate services may be. Nor should we permit wide disparities in quality-of-service to become entrenched in our communicative infrastructure. Sylvain’s Network Equality may spur state-level officials to assure a “social minimum” of internet access available to all.

Sylvain’s work is an exceptionally important contribution to scholarship on access to the internet, not just in the US, but globally. Indian regulators recently stunned Facebook by refusing to permit its “Free Basics” plan. When activists pointed out that the project smacked of colonialism, celebrity venture capitalist Marc Andreessen fumed, “Anti-colonialism has been economically catastrophic for the Indian people for decades.” For him and many other techno-libertarians, the innovation promised by Facebook was worth whatever power asymmetries may have emerged once so much control was exercised by a largely foreign company. If the price of innovation was colonialism—so be it.

Andreessen’s comment was dismissed as a gaffe. But it reveals a great deal about the mindset of both elites. “Innovation” has become a god term, an unquestionable summum bonum. Few pause to consider that new goods and services can be worse than the old, or merely spark zero-sum competitions. (Certainly the example of high frequency trading in Sylvain’s article suggests that access speed and quality could be decisive in some markets, without adding much, if anything, to the economy’s productive capacity.) Nor is the unequal spread of innovation critically interrogated enough. Finally, the terms of access to innovation may be dictated by “philanthrocapitalists” more devoted to their own profits and political power than to eleemosynary aims.

According to Sylvain, the FCC has been wrong to treat distributive equality as a second-order effect of innovation, rather than directly pursuing it as a substantive goal. Since inequalities in internet access track demographic differences in race, class, and ethnicity, it is clear that the innovation-first strategy is not working. Sylvain’s perspective should embolden future FCC commissioners to re-examine the agency’s approach to inclusion and equal opportunity, going beyond innovation and competition as ideals. Among academics, it should spur communications law experts to consider whether the goal of greater equality per se (rather than simply striving to assure everyone some minimum amount of speed) is important to the economy. Sylvain’s oeuvre makes the case for internet governance institutions that can better deliberate on these issues. His incisive, insightful work is a must-read for the communications and internet policy community.

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Cite as: Frank Pasquale, Innovation & Equality: An Uneasy Relationship, JOTWELL (April 4, 2016) (reviewing Olivier Sylvain, Network Equality, 67 Hastings L.J. 443 (2016), available at SSRN),