So I’ve finished reading the Frischmann paper. I think it makes some interesting theoretical observations about the importance of open access to certain infrastructure resources. But I think the network neutrality section of the paper is weakened by a lack of specificity about what’s at stake in the network neutrality debate. He appears to take for granted that the major ISPs are able and likely to transform the Internet into a proprietary network in the not-too-distant future. Indeed, he seems to regard this point as so self-evident that he frames it as a simple political choice between open and closed networks.
But I think it’s far from obvious that anyone has the power to transform the Internet into a closed network. I can count the number of serious reports of network neutrality violations on my fingers, and no ISP has even come within the ballpark of transforming its network into a proprietary network like AOL circa 1994. Larry Lessig raised the alarm about that threat a decade ago, yet if anything, things have gotten more, not less, open in the last decade. We have seen an explosion of mostly non-commercial, participatory Internet technologies like Wikipedia, Flickr, blogs, YouTube, RSS, XMPP, and so forth. We have seen major technology companies, especially Google, throw their weight behind the Intenet’s open architecture. I’m as happy as the next geek to criticize Comcast’s interference with BitTorrent, but that policy has neither been particularly successful in preventing BitTorrent use, nor emulated by other ISPs, nor a harbinger of the imminent AOL-ization of Comcast’s network.
Before we can talk about whether a proprietary Interent is desirable (personally, I think it isn’t), I think we have to first figure out what kind of changes are plausible. I have yet to see anyone tell a coherent, detailed story about what AT&T or Verizon could do to achieve the results that Lessig, Benkler, Wu, and Frischmann are so worried about. Frischmann, like most advocates of network neutrality regulation, seem to simply assume that ISPs have this power and move on to the question of whether it’s desirable. But in doing so, they’re likely to produce regulation that’s not only unnecessary, but quite possibly incoherent. If you don’t quite know what you’re trying to prevent, it’s awfully hard to know which regulations are necessary to prevent it.
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