We’ve spent a lot of time here at TLF talking about the sound economic arguments against net neutrality regulation. We argue that net neutrality regulation will result in worse consequences than leaving the internet relatively unregulated. But to me, the more important point is that net neutrality regulation is itself unjust.
Why do I make such a strong claim? Simply put, people own their stuff. People can decide what to do with their stuff. People can enter into mutually-consensual agreements about what to do with their stuff. As long as both parties agree on the terms, both parties are deciding what to do with the property they each bring to the table. All that is just. It is unjust, on the other hand, to take someone’s property. It is similarly unjust to use force upon someone (e.g. by taking their money, which is other property they own) as a punishment for doing something just. So, it would be unjust for me to reach into your wallet and take a “fine” from you because I don’t like that you sold your copy of Anarchy State & Utopia to Berin for what I think is far too low of a price. I could argue to you that Berin is giving you a bad deal or tell Berin to stop exploiting you, but it is unjust for me to steal from you to enforce my personal desires about the terms of your agreement.
People can certainly disagree with what I’ve just said. I have defended those views, which are the central core of the libertarian conception of justice, elsewhere. But if you accept what I said in the last paragraph, then net neutrality regulation is unjust. Why? Well, the ISPs own their pipes (or own the rights to use pipes in the way they’re using them). They can do whatever they want with them. They could just use their wires for their own purposes, e.g. hanging Christmas decorations or sending communications between their employees like an internal telephone system, or leave them unused. Instead, they reach mutually-consensual agreements with others (“customers”) whereby the customers get to use the wires in the way and for the purposes the ISP specifies in exchange for money. The ISP alienates some of its rights to use its pipes and transfers them to the customer. But the only rights the ISP alienates are the ones it consents to alienate. So, if the ISP says “You can use my pipes, but only on Tuesdays and Thursdays,” or “You can use my pipes, but they’re not connected to anything,” or “You can use my pipes, but only to access the parts of the Internet I like,” all of that is just. And it would be unjust to fine the ISP for making such an agreement.
So, regardless of how great the consequences of having a neutral network or even using regulation to mandate a neutral network are, using force to punish someone for making her network non-neutral is unjust.
Now, of course, one major assumption I have been making is that the ISP and the customer have actually both consented to the terms and both parties follow them. This would not occur if, for example, the ISP promised access to the full Internet but then blocked parts of it. That is unjust. It is not providing the right the customer now has, which the ISP alienated by its consent. Such scenarios may be part of the appeal of net neutrality regulation. And, indeed, they may have already happened. But we already have systems of law – torts and contracts – for punishing those sorts of offenses. Net neutrality regulation, on the other hand, is an attempt to impose, by force, the terms of an agreement mutually consenting parties come to about what to do with their property. That is unjust.