Hands Off the Net!

by on December 29, 2005

I’m rather confused about what exactly the network neutrality folks want. Because it’s hard to believe they’re really looking for what they seem to want in this article.

The draft bill, floated recently by Republicans on the House Energy and Commerce Committee, contains “network neutrality” provisions intended to prohibit telecom and cable companies from blocking or impeding competitors on their high-speed networks. But the draft makes an exception for companies to offer multiple tiers, resulting in potentially faster transmission rates for them and slower speeds for competitors.

Comcast, Time Warner and other major cable providers oppose all mandatory neutrality restrictions but abide by voluntary guidelines. “Network neutrality is a solution in search of a problem,” said Brian Dietz, spokesman for the National Cable and Telecommunications Association.

Those stances are drawing fire from Amazon.com, eBay, Google, Microsoft, Yahoo and other Internet players that fear the carriers will serve as gatekeepers. “Do you want the Internet … of the last 10 years, or do you want it to look like a cable system?” asked Gerry Waldron, an attorney representing a coalition of Internet companies.

“They’re fooling around with the basic DNA of the Internet here,” added Art Brodsky, a spokesman for Public Knowledge. “What they’re trying to do is make it their Internet.”

The coalition members said they recognize that communications carriers have a right to manage their networks to carry bandwidth-hungry video without interruption. “We don’t want to take them out of [that] business,” a source privately said, but added that carriers should not “pick and choose” who provides Internet video.

Now from a technical perspective, I sympathize with these guys. The layered, end-to-end nature of the Internet is an important design principle that deserves to be defended. But what they’re trying to do strikes me as more sweeping than merely ensuring that consumers have unfettered access to content on the web. The next-generation fiber networks being built by the Baby Bells are expensive, and if they want to set aside some portion of their bandwidth to provide premium services, that seems like a perfectly reasonable idea. Now, I suspect that from a business perspective, they’ll find that consumer will pay more for unfettered high-speed Internet access, especially once there are thousands of Internet-based TV channels not available through their IPTV service. But the fact is that without the investments the Baby Bells are making, those Internet TV channels might not even be possible.

Moreover, I think the net neutrality folks are extremely naive about how regulations like this work out in practice. It’s easy to argue, in the abstract, that ISPs should not “discriminate” among Internet-based services. But the devil is likely to be in the details, and the details are made in a convoluted regulatory process that isn’t necessarily in the best interests of consumers. The last time we went this route was with the FCC’s “local loop unbundling” regulations in the late 1990s. Those turned out to be a disaster, providing tons of work for lawyers and discouraging investment in new infrastructure while doing little to increase competition in local phone service.

“Network neutrality” regulation is a bigger danger. So far, the higher layers of the Internet’s protocols (the IP layer and above) have been completely free of government regulation. That has meant that technical decisions get made by computer geeks, not lawyers and legislators. Those of us who care about high-tech innovation should be fighting to keep things that way as long as possible. Putting network design decisions into the political process can’t possibly make the process work better.

That’s especially true since, at least until now, the concerns about violations of network neutrality have been massively overblown. Way back in 1999, Larry Lessig warned in his first book, Code, that corporate interests would soon be re-writing the Internet’s architecture to undermine its open nature. As far as I can tell, we’re no closer to that point than we were then. Indeed, I would argue we’re further away from his nightmare scenario. The Baby Bells have made a few abortive and ineffectual attempts to limit VoIP, but that’s about it–I can still access pretty much any Internet service I want, without any interference from my ISP. Meanwhile, the ownership of the Internet’s backbone is more decentralized, the Internet is a lot more international, and there are dozens of major Internet companies like Google and Yahoo! with a stake in keeping the ‘net open. In short, the odds of Lessig’s nightmare scenario coming true have been steadily diminishing as the ‘net has diversified.

So Mr. Dietz is right: network neutrality is a solution in search of a problem. If, a few years from now, I’m proved wrong and broadband ISPs start restricting its customers’ access to the end-to-end Internet, then it will make sense to have a debate about the best regulatory response. But it’s extraordinarily premature to give the FCC authority over the Internet to deal with a purely hypothetical threat. I don’t want the Internet politicized, even for a good cause.

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