Network Neutrality is a Technical Principle, Not a Legal One
The phrase “network neutrality” describes an important principle of the Internet’s design: that the routers and switches that make up the network’s core infrastructure should not discriminate among packets based on their origin or contents. Like my worthy opponents, I believe that this principle has been crucial to the Internet’s success over the last decade, and I would like to see it preserved. But it’s important to remember that network neutrality is fundamentally a technical principle. Like any technical principle, it is fuzzy at the edges. In hard cases, reasonable engineers can (and do) disagree about how to apply it. It’s not a problem for a technical principle to be fuzzy, because people are free to use their common sense when that principle is vague. But it’s much more problematic if a legal rule is unclear, because it can result in unnecessary litigation and stiff fines for honest mistakes.
Leading network neutrality proposals contain numerous ambiguities that would create uncertainty for everyone in the Internet industry. Here’s just one example: the most prominent network neutrality proposal of the 2006 congressional session, known as Snowe-Dorgan, defined a “broadband service provider” as “a person or entity that controls, operates, or resells and controls any facility used to provide broadband service to the public, whether provided for a fee or for free.” Does this mean that the owner of a coffee shop with a WiFi connection would be subject to FCC regulation of its firewall configuration? One would hope not, but that’s what the language seems to suggest. The same point can be made with respect to hotels, Internet cafes, airports, and even individuals who choose to make their home WiFi connection available to their neighbors. “Broadband provider” seems like a clear concept at first blush, but defining it precisely turns out to be tricky.
It’s easy to state the general principle that ISP’s shouldn’t discriminate. It’s much harder to craft legislation that unambiguously describes who is subject to the rules and what they may or may not do.