Imagine you’re at a party. There are 50 people in the room, and each of them is talking. Each is therefore producing sound waves. But though these many speakers produce different sound waves, we don’t have any trouble listening to the person speaking next to us. So long as no one starts shouting, we can manage to hear quite well. More generally, a party (at least early in the evening) is comprised of smart speakers and listeners who coordinate their speaking so that most everyone in the room can communicate without any real trouble.
Radios could function similarly — if the receiver and transmitter were analogously intelligent. Rather than the dumb receivers that ordinary FM or AM radio relies upon, smart radios could figure out what to listen to and communicate with just as people at a party learn to focus on the conversation they’re having.
The best evidence of this is the second example I offer to dislodge the common understanding of how spectrum works. This example is called “WiFi.” WiFi is the popular name of a particular set of protocols that together enable computers to “share” bands of unlicensed spectrum. The most popular of these bands are in the 2.5 GHz and 5 GHz range. WiFi enables a large number of computers to use that spectrum to communicate.
Most of the readers of this book have no doubt come across WiFi technology. I see it every day I teach: a room full of students, each with a laptop, the vast majority on the Internet — doing who knows what. The protocols within each machine enable them all to “share” a narrow band of spectrum. There is no government or regulator that tells which machine when it can speak, any more than we need the government to make sure that people can communicate at cocktail parties.
These examples are of course small and limited. But there is literally a whole industry now devoted to spreading the lesson of this technology as broadly as possible. Some theorists believe the most efficient use of all spectrum would build upon these models — using ultra-wide-band technologies to maximize the capacity of radio spectrum. But even those who are skeptical of spectrum utopia are coming to see that our assumptions about how spectrum must be allocated are driven by ignorance about how spectrum actually works.
The clearest example of this false assumption is the set of intuitions we’re likely to have about the necessary limitations in spectrum utilization. These assumptions are reinforced by the idea of spectrum-property. The image we’re likely to have is of a resource that can be overgrazed. Too many users can clog the channels, just as too many cattle can overgraze a field.
Congestion is certainly a possible consequence of spectrum usage. But the critical point to recognize — and again, a point that echoes throughout this book — is that the possibility congestion depends upon the design. WiFi networks can certainly become congested. But a different architecture for “sharing” spectrum need not. Indeed, under this design, more users don’t deplete capacity — they increase it[79].
The key to making this system possible is for every receiver to become a node in the spectrum architecture. Users then wouldn’t be just consumers of someone else’s broadcast. Instead, receivers are now also broadcasters. Just as peer-to-peer technologies such as BitTorrent harness the bandwidth of users to share the cost of distributing content, users within a certain mesh-network architecture for spectrum could actually increase the spectrum capacity of the network. Under this design, then, the more who use the spectrum, the more spectrum there is for others to use — producing not a tragedy of the commons, but a comedy of the commons.
The basic architecture of this mesh system imagines every computer in the system is both a receiver and a transmitter. Of course, in one sense, that’s what these machines already are — a computer attached to a WiFi network both receives transmissions from and sends transmissions to the broadcasting node. But that architecture is a 1-to-many broadcasting architecture. The mesh architecture is something different. In a mesh architecture, each radio can send packets of data to any other radio within the mesh. Or, put differently, each is a node in the network. And with every new node, the capacity of the network could increase. In a sense, this is precisely the architecture of much of the Internet. Machines have addresses; they collect packets addressed to that machine from the Net[80]. Your machine shares the Net with every other machine, but the Net has a protocol about sharing this commons. Once this protocol is agreed on, no further regulation is required.
We don’t have go too deep into the technology to recognize the question that I mean this section to pose: If technology makes it possible for radios to share the spectrum — without either spectrum-licenses or spectrum-property — then what justification does the government have for imposing either burden on the use of spectrum? Or, to link it back to the beginning of this section, if spectrum users could share spectrum without any coordination by the government, why is it any more justified to impose a property system on spectrum than it is for the government to charge newspapers for the right to publish?
No doubt, the architecture that enables sharing is not totally free of government regulation. The government may well require that only certified devi ces be used in this network (as the FCC already does with any device that can radiate within a range of spectrum). It may push the technology to the capacity, increasing mesh architecture. It may even reasonably impose nuisance-like limits on the power of any transmitter. But beyond these simple regulations, the government would not try to limit who could use the spectrum. It would not ban the use of spectrum for people who hadn’t either paid or been licensed.
So here we have two architectures for spectrum — one where spectrum is allocated, and one where spectrum (like the market for newspapers) is shared. Which is more consistent with the First Amendment’s design?
Here, finally, we have an example of a translation that works. We have a choice between an architecture that is the functional equivalent of the architecture of the American framing and an architecture equivalent to the Soviet framing. One architecture distributes power and facilitates speech; the other concentrates power and raises the price of speech. Between these two, the American framers made a choice. The state was not to be in the business of licensing speakers either directly or indirectly. Yet that is just the business that the current rule for spectrum allocation allows.
A faithful reading of the framers’ Constitution, my colleague Yochai Benkler and I have argued[81], would strike down the regime of spectrum allocation[82]. A faithful reading would reject an architecture that so strongly concentrates power. The model for speech that the framers embraced was the model of the Internet — distributed, noncentralized, fully free and diverse. Of course, we should choose whether we want a faithful reading — translation does not provide its own normative support. But if fidelity is our aim, this is its answer.
Speech Lessons
What I described at the start of the book as modalities of constraint I have redescribed in this chapter as modalities of protection. While modalities of constraint can be used as swords against the individual (powers), modalities of protection can be used as shields (rights).
In principle we might think about how the four modalities protect speech, but I have focused here on architectures. Which architectures protect what speech? How does changing an architecture change the kind of
