Here We Go Again

Cory Doctorow has a great post about the merits of network neutrality legislation:

What we’re talking about here is getting the FCC to write up rules dictating what firewall rules ISPs can and can’t have. I’m an ISP right now–my laptop is WiFi rebroadcasting the Ethernet Internet access I’m getting at my hotel. Anyone can be an ISP. Do we really want the Feds to tell us what we can and can’t do with our network configurations? Do we believe that they can move fast enough and smart enough to do a meaningful job of it?

Art Brodsky at Public Knowledge responds:

This is not about someone picking up a Wi-Fi signal in a hotel room and considering that to be an ISP. This debate doesn’t apply to Cory in his hotel room, and if that’s his concern, the definition of an ISP could be tightened to clarify he’s not offering service to the public as the law considers it. The current legislation, and the Net Neutrality debate, applies to the network operators which have the ability to discriminate.

Obviously, the FCC isn’t going to regulate Cory Doctorow’s laptop. But with all due respect to the otherwise astute Art Brodsky, these are precisely the kind of questions that’s likely to transform a seemingly clear standard into hopeless muddle once it’s turned over to the FCC. For example, is the hotel an ISP? What about Starbucks, which provides Internet access to hundreds of thousands of people through wireless access points? What about airport WiFi services?

And regardless of how the FCC decides those questions (and you can bet there’ll be intensive lobbying and litigation over the question) it will amount to the FCC deciding what firewall rules those ISPs are allowed to employ. Is the ISP allowed to take aggressive measures to block spam and spyware? Can it block peer-to-peer file-sharing services? Can purchase network equipment that increases the “jitter” in its networks, thereby discouraging VoIP services? If not, is the FCC going to make up a list of approved networking gear?

Now, I’m sure that for each of those questions, Brodsky has a reasonable answer and would tell us that Congress needs to “tighten up” the relevant definition to make sure that the FCC doesn’t come to an unreasonable conclusion. But that’s not the way politics works.

When Congress passed the 1996 telecom bill, it created a distinction between a “telecommunications service,” which was regulated under common-carriage rules, and an “information service,” which was mostly deregulated. The distinction seemed pretty clear at the time: telecom services carry voice, while information services carry data. But of course, it only took a couple of years before people started carrying voice over their data line, and transmitting data over old copper phone lines. The distinction became incoherent, and required a decade of litigation to resolve.

I’m sure that given the current state of technology and the current configuration of the telecom industry, Brodsky has a clear understanding of who’s an ISP and what counts as “discrimination.” It’s possible he’s right, although I’m skeptical. But even if he has a clear idea of how the rules should apply today, he can’t possibly be sure that the definitions Congress comes up with now will make sense in 10 years. Perhaps Cory’s laptop won’t be declared an ISP, but it’s a safe bet that some company will come along whose ISP status is ambiguous and lead to a lot of unnecessary litigation.

Frankly, I don’t understand what the big hurry is. Comcast and AT&T can’t break the neutral Internet overnight, even if they wanted to. Congress can always come back and pass new legislation if network discrimination becomes a serious problem. But in an industry that’s evolving as rapidly as this one is, let’s not cement today’s concepts into a law that will be in force for a decade or longer.

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