An Unpopular Position on Net Neutrality

I've already gone on record opposing "net neutrality" legislation, (see
"What's Wrong With Net Neutrality,",1540,1993563,00.asp), and predicted that none of the pending legislation from the 109th Congress would pass. None of it did.

Senators Snowe and Dorgan have now reintroduced one of last term's bills, "The Internet Freedom Preservation Act." I'm still against it. Yes, I am against Internet Freedom!

The general idea of net neutrality is to ensure that broadband access providers (defined in the IFPA as 2-way transmission in which transmission in at least one direction is at least 200 kilobits per second) make their infrastructure available in a content-neutral pricing scheme - no charging (or offering as a premium service) more to deliver on a higher priority content from any particular subset of providers. Content providers (Google, EBay, Yahoo!) are for neutrality, broadband providers (Comcast, Verizon) are against it.

My reasons against--different from those of the broadband providers in many respects--haven't really changed, but let me summarize them before I'm labeled a terrorist:

1. The problem doesn't exist yet - always a bad idea to legislate a future (even if a likely future) breakdown in market forces, especially when the breakdown involves rapidly evolving technologies and, consequently, unstable market dynamics. No provider is currently offering non-neutral pricing, access, or priority.

2. Discriminating may be necessary to optimize network performance - Uses for broadband infrastructure are emerging rapidly, and it isn't entirely clear that discriminating based on content wouldn't be the best way to optimize network performance, whether doing so would add to profits or not for the provider. The cable networks already "discriminate" in favor of programming over Internet traffic for subscribers who get both from the cable company, because the programming needs priority. Content providers are worried that if broadband providers aren't banned from discriminating, they'll someday (soon, perhaps) extract premiums from content providers to get their stuff delivered, or give competitors that option. But some kinds of content should get higher or lower priority as a matter of optimization, and blanket bans on prioritizing may end up making a mess of traffic overall.

3. The federal government is a poor choice for any of this - From defining what is required of a provider to satisfy "neutrality," to developing the rules for enforcement, to operating those rules, the federal government and in particular the FCC are poor choices to solve the problem, assuming the problem exists in the first place. Maybe the Internet has worked so well because neutrality has been a persistent part of the architecture. Maybe it's worked so well because there has been minimal government regulation of its design and operation. Maybe both. More of the latter to shore up the former is a dangerous trade-off.

Here, for example, is the relevant part of the definition of "Internet neutrality" from the IFPA:


`(a) Duty of Broadband Service Providers- With respect to any broadband service offered to the public, each broadband service provider shall--

`(1) not block, interfere with, discriminate against, impair, or degrade the ability of any person to use a broadband service to access, use, send, post, receive, or offer any lawful content, application, or service made available via the Internet ;


`(4) enable any content, application, or service made available via the Internet to be offered, provided, or posted on a basis that--

`(A) is reasonable and nondiscriminatory, including with respect to quality of service, access, speed, and bandwidth;

`(B) is at least equivalent to the access, speed, quality of service, and bandwidth that such broadband service provider offers to affiliated content, applications, or services made available via the public Internet into the network of such broadband service provider; and

`(C) does not impose a charge on the basis of the type of content, applications, or services made available via the Internet into the network of such broadband service provider;

(The entire definition--the entire Act, can be found at

There are many gaps in this definition—consider words like “lawful content” “reasonable” and “content” and the fixed definition, noted above, of what constitutes “broadband” speed. The point isn’t that this is a bad law, but that drafting any law under these circumstances is hard, and likely to lead to negative unintended consequences.

Who works out the specifics? In this case--another bad idea--it is the FCC:

`(e) Implementation- Not later than 180 days after the date of enactment of the Internet Freedom Preservation Act , the Commission shall prescribe rules to implement this section that--
`(1) permit any aggrieved person to file a complaint with the Commission concerning any violation of this section; and
`(2) establish enforcement and expedited adjudicatory review procedures consistent with the objectives of this section, including the resolution of any complaint described in paragraph (1) not later than 90 days after such complaint was filed, except for good cause shown.

So if I as a content provider or a user believe that discrimination is taking place, the FCC will evaluate my complaint. How, exactly, will they determine whether some packets are given priority over others in violation of the rules? Could it possibly require them to start monitoring lots and lots of packets traveling through the broadband provider’s infrastructure? Matters of technical competence and cost aside, does anyone else think giving the FCC power to look inside the contents of packets in the name of investigating complaints is a bad idea?

Privacy concerns aside, my guess is that many people who are in favor of net neutrality also think of themselves generally as libertarians, at least when it comes to the idea of government entities micromanaging information technology and its applications, especially the Internet. I think that’s right, and there’s no reason to believe the FCC would overcome its institutional limits for this particular task. They won’t. They can’t. They’re not set up to handle it, they’re not structured to handle it—and we wouldn’t want them to be. Everyone would lose.

In a CNet story by Anne Broache, see, Ben Scott of the Free Press notes that the recent agreement by AT&T, as part of the deal that allows it to merge with BellSouth, agreed to 30-month prohibition on providing “any service that privileges, degrades or prioritizes any packet” based on “source, ownership or destination.” This concession, Scott is quoted as saying, “puts to rest the bogus argument that no one can define Net neutrality.” Well, everyone can define Net neutrality. The question is: can it be defined in a way that leads to useful, cost-effective preemptive legislation?

I guess we’ll have to wait to see. But I’m hoping I’m still right that nothing actually gets enacted.

OK, start shooting.


In fact, it echoes many of the same points I wished to make at the FCC's hearing at Stanford (though I didn't get to finish; I got less time than other members of the same panel and far less time than Larry Lessig, even though he has never provided Internet service and does not fully understand the issues involved). In fact, I was the only Internet provider present. See my (unabridged) prepared remarks from the hearing at

With all due respect, this article seems to be throwing out a lot of "maybes" without providing much substance. Maybe lack of regulation has led to the success of the Internet, but maybe not. Maybe the neutrality problem doesn't exist yet, but content providers are obviously worried enough about it to lobby. Maybe the FCC will interpret net neutrality law in an Orwellian fashion and decide to look inside all packets at all times, but very likely not - more likely they will treat it like other differential service laws and require the defendant to show evidence on trial that neutrality is being breached. In the same spirit, the FCC does not monitor all airwaves at all times even though it is their job to oversee their use, but it does respond to complaints about unauthorized spectrum use. Citizens concerned about Internet packet inspection should be much more concerned that the FBI/NSA/etc already wiretap anyway, and even scarier, ISPs can not only monitor content but modify it ( As for discriminating to optimize traffic, this is the responsibility of the user and the software they are running, not of the ISP (the ISP is free to throttle a user's *total* bandwidth under net neutrality to protect other users; they just aren't allowed to discriminate among the content that user is accessing). Web browsers today already "discriminate" by asking for the text of a page before any images or media contained within it. All in all, these are nebulous reasons to oppose a legislation that is maintaining a key feature of the Internet - the ability for anyone to start a new, unforeseen type of service and be able to reach as many consumers as they wish with it right away, using however many network resources the service requires.

Prioritizing different protocols (e.g. bt vs. http vs. rtsp) over each other is one thing, but prioritizing, say, streaming video from over streaming video from or what have you is another issue. That has nothing to do with optimal resource management and everything to do with content provider favoritism.
I agree that this is trying to legislate the future before it happens and that the federal government may not be the best equipped and most knowledgeble body to do this. However I do not agree that having some independent body--whether it be the government or someone else--inspect packets once in a while is a bad idea. Our service providers, after all, already have access to all our packets, which is the very reason that they can control their flow.

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