First, what’s actually at stake here? Well, the end of the open public internet and the beginning of separate but unequal private internets, under the control of the giant phone and cable companies in possession of the pipes and airwaves we depend upon for access. The FCC’s Open Internet rules left much to be desired but they were minimum protections to count on and a significant beachhead in the net neutrality battle. Without them, what do we get now? A network where Verizon can charge extra to prioritize traffic and block any service that refuses to pay a toll to reach its users (that’s what it said it would do if it won this case). A network where Comcast can derail video distribution that threatens its cable television business (that’s what it did when it blocked BitTorrent and what it does in favoring its Xfinity service— even though it’s obligated to abide by net neutrality until 2017 as a condition of its merger with NBC-U). A network where AT&T can cut deals with the biggest content providers to exempt their apps from counting against monthly data caps but squeeze out the innovative startups that can’t afford to pay (which it just announced last week with its new Sponsored Data plans). Networks — with pay-to-play arrangements, exclusive fast lanes, unfair competition, and prepackaged access tiers— where that independently-produced web video series, that nonprofit alternative news site, or your own blog are left behind in favor of those that can pay protection money to network operators. In other words, a network that is not the internet as we’ve come to know it— an open network where users can be participants in the creation and circulation of online culture, rather than a closed content delivery system for corporate media. While net neutrality proponents’ rhetoric might seem a bit overblown, we are much closer to a “nightmare scenario” than most realize.

The DC Circuit’s ruling was not against net neutrality itself, but rather the twisted way the FCC attempted to enforce it. The majority opinion actually went out of its way to describe why net neutrality regulations are necessary to curb abuses of power by network operators. It ruled that the Open Internet rules themselves were sound— they were just implemented the wrong way. Coming into the case, the FCC’s authority to regulate broadband at all was in doubt, after the agency was handed its hat by the same court in the 2010 Comcast case. The FCC tried it again this time with a slightly different tack (“even federal agencies are entitled to a little pride,” the majority wrote— federal appeals court humor, folks) and, amazingly, the court bought it this time around (while Verizon called the FCC’s argument a “triple-cushion-shot,” the judges pointed out that in billiards it doesn’t matter how much of a stretch the shot is if you actually make it). However, even though the court affirmed the FCC’s legal ability to regulate broadband, it found that it can’t regulate it the way the Commission wanted to in the Open Internet rules.

The court ruled that the FCC’s net neutrality policy treated broadband providers as common carriers, but that it couldn’t do that because it didn’t have those services classified in the common carriage portion of its legal framework. Basically, it all goes back to the FCC using the term “information service” rather than “telecommunications service” to define broadband starting in 2002. That’s it— this is a case where the importance of discourse, and the power to dominate discourse in the policy sphere, could not be more plain.

Net neutrality is essentially an update to common carriage, the centuries-old principle of openness and nondiscrimination on publicly essential infrastructure for communication and transportation. The FCC has regulated general purpose networks of two-way communication as common carriers since its inception with the 1934 Communications Act (at that time the focus was telephone service). Beginning in the 1980s as part of its influential Computer Inquiries and legally formalized in the 1996 Telecommunications Act, the FCC distinguishes between these basic networks, defined as Title II “telecommunication services” (think pipes), and the content made available over those networks, defined as Title I “information services” (think water flowing inside those pipes). Under this framework, the FCC regulated internet access (the connectivity) as common carriage to ensure equality and universality, but could not regulate the internet itself (the content). As telecommunications services, internet access providers’ job is to pass communications back and forth to the internet, while the information services on the internet are publishers with editorial rights to control content. This all changed during a deregulatory binge at the FCC in the 2000s: cable companies called their broadband connections “information services” (pay no attention to their actual cables), conspicuously not subject to regulation, and then-FCC-Chairman Michael Powell was happy to define broadband that way, too (he’s now the head of the NCTA, the cable industry’s trade group, by the way).

Now, because broadband internet access is not classified as “telecommunications,” it cannot be regulated as common carriage. This means that, as the DC Circuit recognized, since net neutrality is basically common carriage, it cannot be implemented as long as broadband is still defined as an “information service.” So, even though broadband is now the essential general purpose communications infrastructure of our time, there can be no openness and nondiscrimination protections for it until the FCC is willing to change the label it has applied to it in its regulatory terminology. The answer, then, is reclassification: the FCC just needs to call broadband the telecommunications service that it is before we can have enforceable net neutrality policy. The policy really is that simple— it’s the politics that are difficult. The reason that the FCC built the Open Internet rules on legal quicksand is that it lacked the political will to go through with its reclassification proposal amidst a firestorm of pressure from the telecom industry and its allies in Washington.

If we want net neutrality, we should put our own pressure on the FCC. We don’t have the money and the lobbyists that the telecom industry does and we can’t count on the clout of any big corporations whose interests overlap with the public’s on the issue— Google already sold out to Verizon and other big online content providers are now backing away from it (the Amazons and Facebooks of the world have deep enough pockets to dominate the payola market of the future, so they seem willing to play ball at this point). It’s up to us, then, to push the FCC to do net neutrality right this time.

But the intriguing part of this weaker ACTA is:  we’re not exactly sure whom to thank. Canadian professor Michael Geist, tenacious as a wasp in keeping public pressure on negotiators?  The less gung-ho countries who, tired of being Yank-ed around (or perhaps just not seeing what was in it for them), insisted on scaling back the agreement’s ambitions? Maybe the U.S. Trade Representative blundered by pursuing the most undemocratic path available; as James Love suggested, the USTR’s circumvention of Congress may have cost ACTA important legislative buy-in. Or perhaps we should thank “You”—the Time magazine Person-of-the-Year You—for all Your watchfulness and activism.

But no matter to which address we should gratefully ship the Chivas, the ACTA retreat is indicative of a larger crisis in how the policy sphere works today. Specifically: we have no idea how the policy sphere works today.

Once upon a time, it was possible to imagine that we understood policymaking.  There was an official policy sphere comprised of the state (in the U.S., Congress, the FCC, etc.), business, and the public (either public interest groups or individual citizens making their wishes and displeasures known).  Policy emerged from these players working out differences using the (unequal) power at their disposal. To effect policy change was to work through established channels of regulatory authority.

It was never as tidy as that, of course, but the fact remains that today, the legible official policy sphere has been blown all to hell through a combination of new players, differently empowered old players, new technologies for policy, and new technologies of policy.

We also have, importantly, new ignorances. With previous technologies, policymakers may not have understood the technical details but they could usually grasp the basics of the questions they were grappling with, and even some of the implications of those questions.

Today, not so much.  Ted Stevens’ “series of tubes” became a sensation because it was the perfect metaphor for the profound ignorance driving policy today.  The recent Ninth Circuit opinion in Vernor v. Autodesk reaffirms that our policymakers—in this case, judges—are dangerously ignorant of fundamental technological and even legal distinctions. In the other direction, ACTA demonstrates the ignorance of negotiators who, incredibly, believed they could hammer out their agreement in absolute secrecy in this day and age.

But we need to acknowledge our own ignorance of policymaking power as well.  Instead of imagining that we still understand the policy sphere, we need new models, new metaphors for contemporary policymaking. Our old conception of a legible policy sphere won’t cut it anymore.

Some contenders:

The Fraserized Policy Sphere:  Remember how Habermas theorized a unified public sphere for democratic deliberation, and then Nancy Fraser pointed out the existence of subaltern counterpublics?  Maybe that’s what happened to policy: we need to contend with a proliferation of new (or newly visible) subaltern policymaking bodies, from local school boards getting into media regulation, to programmers building policy into their products (“code is law” and all that), to spammers driving policy from the bottom up.

The Networked Policy Sphere:  Borrowing from Yochai Benkler’s own reworking of Habermas, perhaps the better model analyzes networks and nodes of policymaking authority.  Like the Fraserized Policy Sphere but more complex and webby.

The Pains of Policy Stretch:  As discussed by Danny Kimball at the recent Flow Conference, we’re using legacy policy formulated for one set of technologies to govern a new set of technologies, and the resulting legal and regulatory contortions are dislocating a lot of joints.  Maybe we need new regulatory calisthenics to maintain policy fitness, to overextend a metaphor.

The “Spinning Pool Table” Model:  The added complexities of distributed power and technological multiplicity has led to an explosion of unintended consequences, and no one understands where the billiard balls are going, or even where the pockets are.  This is the case in the wrong-wrong-stupid-wrong decision in Vernor, which in the most dramatic interpretation just separated legal transfer from ownership.  That’s what we call a scratch.  How might we begin to establish a new physics of policy so that we can at least regain our ability to estimate the consequences of our policy shots?

I could go on, but the point is that, even if we figure out what really happened to ACTA, we’re left in a state of profound confusion about the range of forces at work in policymaking today.  May those working for the public interest be the first ones to figure it out.

[The photo above is modified from an original by Paul Goyette, released under a Creative Commons Attribution-Noncommercial-ShareAlike license.]