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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.
Comments
US Postal Service vs Fedex
Every other utility provider charges based on use. Why should the internet be any different?
Failed US Postal Service is a good example of this.
Mistakes Can Be Prevented - Legally
By all measures, this is a legal issue. The argument here said, "...because it can result in unnecessary litigation and stiff fines for honest mistakes." In the business climate of today, there are few, if any, mistakes. A long litany of these so called mistakes led to the collapse of mortgage and financial industries. Many experts have stated, notably Alan Greenspan, that regulation is needed so markets don't play fast and loose with consumers and their assets. This ties directly back to allowing ISPs to regulate themselves. It is a market melt-down in the making. By forcing subscribers to access only the approved sites based on traffic and bandwidth, the ISPs will effectively quell all opinions that don't mesh with the business plan. The boardroom will control our living room. Is this the type of control corporations will exert over a free market? Absolutely.
In virtually every case, markets don't regulate themselves. Gas prices at the corner station reflect the price of the one across the street. Would not Comcast watch Time Warner and continue to spiral costs and restrictions upward? Yes, and it will happen without mandated neutrality. Corporations will wield greater authority over content than a parent can. And all of this under the guise of faster internet access.
Which mistake is easier to fix: a mistake of written words or the mistake of an industry collapsed on itself? Can we afford the time or money that would result in a downed internet?
When the FCC, in the Reagan administration, revoked the Fairness Doctrine, the media outlets went into an unbalanced reporting cycle. Each outlet reported what fit with the business model to sell advertisement, not what was relevant or even true.
Here is a scenario to ponder: you can't read the Opposing Views website because the argument by people for net neutrality is picking up steam. The ISP disagrees with the comments and blocks the site with the excuse it pulls too much bandwidth. The justification is made that other subscribers can't get to the crotch kicks they want to see on Break dot com.
Mandate neutrality, don't hope for it.
.:=*=:.
Just because everything's changing
Doesn't mean it's never been this way before
-- Regina Spektor "The Call"
Distinguish between the principle and implementation
You seem to agree that neutrality principle (technical principle, yes, sure!) has played a very important role in getting the Internet to where it is. It has fostered innovation, created wealth, boosted free-speech, and has made people more aware of the world. We both seem to agree on this point. But your concerns, while being legitimate legal concerns, does nothing to further the case for or against the neutrality principle. Just because the legal language might be open to interpretations does not mean we should give up on neutrality. Instead, we should work harder to create unambiguous laws that protect the rights of the people on Internet.
Why is this on the "No" side?
In this article, Cato has basically made the case in favor of Network Neutrality, and is simply worried about how it ought to be enshrined.
Few golfers hit the ball into the hole on the first swing, so the fear that we might not get a Network Neutrality bill exactly right on the first attempt is not a reason to wait. It's almost guaranteed that it will be wrong in some ways, but the chances are good that such a bill will be right in most ways.
And while Network Neutrality is rooted in how the Internet traditionally treated packets that were crossing it, this tradition was also enshrined in part of that design. Now, with Deep Packet Inspection, triple-play packages, and carefully crafted bandwidth limits -- assumptions based upon that neutral design and tradition are out the window.
Since Cato's author writes "that this principle has been crucial to the Internet’s success over the last decade, and I would like to see it preserved," I'm very Interested in Cato's proposal of how to do that given consumers current lack of choices, the heavy push for network vendors to get wire-speed "monetizing" DPI products into the ISP chain to "enhance the experience," and the natural desire for ISPs to spend as little as possible on network upgrades by using DPI as a substitute for some of it.
On guarantees...
I completely disagree with the statement "...chances are good that such a bill will be right in most ways." I've never known a piece of regulation like Net Neutrality to be "right in most ways". Odds are quite the opposite. For instance: Cato brings up the ICC in a later argument, and more recently, there is the whole ethanol subsidy that causes food to be more expensive in order to pursue an energy-inefficient alternative to oil.
To answer your question "Why is this on the No side?":
You precede from a false assumption - Cato is a libertarian organization and its default position is to oppose the creation of most new laws (and supports removal of many existing laws). Thus, the libertarian aim is to "enshrine" as little as possible in law, for the very reason that is extremely hard to change once enacted, most laws tend to have adverse side effects, and that most laws have no business being laws in the first place under the Constitution. "Enshrining" is the domain of religion, not good, limited government anyway.
Net Neutrality, in all it's ill-defined incarnations, should never be law.
Ill Defined?
Net Neutrality is not ill-defined. It is quite well defined as not adversely affecting the packets transiting an ISPs network in an excessively negative way.
Comcast's forgery of RST (Reset) packets to both source and destination is one such example of adversely affecting the packets. They are basically performing a Man-in-the-Middle attack with their forging of packets and disrupting traffic flow across their portion of the internet.
The principle does not say you cant give priority where such would be beneficial for all users but it does say that you should not be willfully interfering the delivery of packets. Packets can and should get to their destination eventually. What does not matter is that VOIP packets get the fast lane while Bittorrent gets the slow lane, what does matter is when you throw up a roadblock in front of the slow lane and only let traffic in the middle and fast lanes to go through.
Benefit to all users?
So who decides what is to benefit all users? Some government body? How about when this stifles innovation because innovation is not good for all users?
Also what about the owners? Comcast owns their network. They built it with their money, brains and hard work. They have the right to decide how to regulate their network. Period. They did not build it to benefit anyone but themselves, and they certainly didn't pluck it from a tree. All arguments for net neutrality blank out the owners and builders and pre-suppose the network.
Without the builders, those who actually have a profit motive to see the internet continuing to operate, there is no network for the net neutrality advocates to attempt to seize control. In the areas where there is only one low cost provider, and that provider could limit access. Those people are free to act, they can move, they can raise capital and build a competing service, they can get a T1 run to their house (at considerable but insignificant compared to what Comcast spent to build out and maintain a network to their house) or they can have no internet.
Governments role is the protection of rights. There can be no right to a good or service that must be created by another. Your comment shows some technical proficiency. So let me assume you are a network professional. You probably build networks or systems for money. This is how you survive. If a customer of yours stops paying you, or only wants to pay you to come on site for 4 hours a month, do they have the right to demand the same service a customer who pays you for 24x7 retainer? They can have no right to the fruit of your labor and mind except as agreed to voluntarily by you. If you change your rates to require payment for working with one set of equipment or software versus another they have no right to demand to pay the lower rate and get the better service. This analogy applies directly to what you are demanding of Comcast and every other ISP.
Yes Benefit to all users...
Well I would presume a panel of experts that are not necessarily bound to the companies that are the cause of many net neutrality problems.
Comcast may 'own' the network but I do believe if you do digging that they were either given public money directly for many of the projects for building their network or alternatively were given 'monopoly' rights over cable in a given geographic region which has the same effect as giving public money to them to build their network. There is no question about profit since theoretically they can set their prices as high or as low as they feel like and people will have to deal with it.
The problem with your suggestion to built a competing service also falls on its face. You will not be permitted to build a cable network where one already exists. Just like you probably wont be permitted to build your own phone network where one already exists to provide DSL as many DSL providers have 'Monopoly Rights' agreements with places they service as well.
I have a degree in an IT discipline so you could consider me to have some technical proficiency. The thing is if someone stops paying then they wont get any service barring extenuating circumstances (things such as having a record as a good customer or someone who's given us lots of referrals). Also the customer who pays you for 4 hours a day vs the one who pays you for 24x7 service get the same service for the hours they've paid for. So the person with 4 hours will get 4 hours of high quality service but the person with 24x7 service will get high quality service whenever they need it. Naturally I'd have enough employees on hand to deal with 24x7 clients as well as the 4 hour a month ones.
Why would I change my rates to require payment for different types of software except as a requirement for purchasing the software/licenses in the first place (which is another topic of debate all together)? Software is software is software. I'm not out to screw my customer because screwed customers do not come back (unless you're a monopoly, see above) and do not refer you to friends and business associates.
Bottlenecks
The portions of the network owned by Comcast and other ISPs are classic examples of bottleneck assets and, as such, are justly regulated as any other bottleneck is (think bridges, highways and, yes, local loops owned by telcos).
Your analysis is flawed as it applies to the earlier commenter: unless he is the only or one of a few such professionals, he doesn't represent a bottleneck.
"assets" are still someones property
Many home consumers have the option of Verizon FiOS, Comcast cable, DSL from many providers. But you said even a few would indicate a bottleneck. As such does that mean that the best brain surgeon in the world must become my slave if I need brain surgery because he is a bottleneck between me and my right to life? I know this is a further stretch of my analogy, but it is the same thing violating the rights of one person for the benefit of another.
Where did these "assets" come from? The were produced, by Comcast for their purposes. Your term of them as assets tries to smuggle in the idea that I have a right to dictate terms on their property because they were they only ones to build that bridge to the internet in my neighborhood.
The discussion is further muddied by things like common carrier and all the other governmental involvement and public property and public rights of way. But there is an excellent article about the power grid that addresses most of this and shows how government regulation has hindered not helped in this matter, that can be found here: http://www.theobjectivestandard.com/issues/2008-summer/property-rights-electric-grid.asp As the analysis is detailed and completely applies to internet I recommend anyone really interested, not just looking for handouts, in net neutrality dig into this.
Good Points -- But Another Flawed Analogy
You make some excellent points and thanks for the link to the article. I will read it when I get a chance -- hopefully this weekend.
However, your analysis ignores history and, as such, fails since the vast majority of US government economic regulation is based on history -- the history of abuse.
A brain surgeon is a person; an ISP is a corporation. Government typically requires more of the latter than the former. I'm not trying to "smuggle" anything: corporate assets that are bottlenecks are properly the target of regulation. NOT because they are bottlenecks, per se, but because history has proven (again, and again, and again, and, if NN isn't codified, it will be proven yet again) that all corporate actors are would-be monopolists. Most simply haven't the effective opportunity to live up to their desire. Because of the massive sunk costs involved with building communications networks, however, the actors capable of marshalling such resources are provided with an effective opportunity. And, as history shows, when opportunity and desire coincide . . . well, the Bell System and Standard Oil are telling stories of how corporate desire and opportunity, unchecked by effective regulation, permit the big to beat the small, the rapacious to overwhelm the modest, the bottleneck to be used as a brickbat. Thus common carriage (which isn't muddying anything -- the provision of 'net services by ISPs is so close to common carriage that the FCC had to declare that it wasn't common carriage -- and we all know that when the government insists that some thing "is" or "isn't" that the truth is usually 180 degrees away from the government's description (see, e.g., the statutory prohibition against labeling universal service "subsidies" as "taxes" -- they're clearly taxes as they are government-mandated payments (the very essence of taxation)). I apologize for the nested parens -- I get carried away!. Title II of the Communications Act governing common carriage was a response to the formation of the Bell System by the means employed by its managers -- not a response to the Bell System per se. Same with NN. Your arguement would be stronger if Comcast hadn't lied and hemmed and hawed about its cloning of reset packets.
Brain surgeons, unlike corporations, are generally motivated by doing good. Corporations, properly, are interested in maximizing profits. They serve different societal purposes. Sure, the former can abhor any societal purpose and dedicated his/her life to the consumption of epic quantities of alcohol or heroin. But corporations are purely creatures of society -- they exist only due to statutory provision. They cannot, therefore, abandon society's benefit. They can abhor it, but they can't flee it (not successfully anyway).
coorporation vs individual
While I disagree that there is any conflict between profit and "the good." I appreciate your response. I also appreciate that law is dictated by historical precedent, I do caution that just because something "was always this way" it doesn't mean it is right or conducive to a free society.
I intend to investigate the ideas behind corporation vs. the individual. However, I still contend that property rights, even for corporations, must be absolute and not subject to the whims of others.
Thanks.
Rights are never absolute
I note only that rights -- constitutional and otherwise -- are almost never absolute. Even the 1st Amendment (which we law profs like to note was "the first" and thus occupies some sort of place of primacy) is limited in many ways.