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Similar legislation has failed in both the House and Senate in the past, but proponents of Net neutrality haven't given up.
If only they would.
The Internet has thrived in large part because it has managed to sidestep a barrage of efforts to regulate it, including laws to ban indecent material, levy sales tax on e-commerce, require Web sites to provide "zoning" tags, and to criminalize spam, file sharing, and spyware.
Some of these laws have been overturned by the courts; some died before being passed; and the rest--well, the rest are effectively ignored, thanks to the Internet's remarkable ability (so far) to treat regulation as a network failure and reroute around the problem.
Proponents of Net neutrality--some of whom have led the battles against other forms of network regulation--argue that this law is different. Mandating Net neutrality is simple, fair, and preserves the very features of the Internet that make it so valuable. Indeed, the Senate's version of Net neutrality legislation carries the lofty title of Internet Freedom Preservation Act.
Who could be against preserving freedom?
But the information superhighway to hell is surely paved with good intentions.
That's the lesson of America's first misadventure in enforcing "neutrality" on a key piece of national infrastructure: the railroads.
Nearly 100 years ago, shippers in cities between the Mississippi and the West Coast, which were largely served by only one road, found that they were being charged higher rates to subsidize competitive tariffs from cities east of the Mississippi, where shippers had several choices.
Like those calling today for Net neutrality, the Intermountain shippers demanded "reasonable and fair" rates of carriage. Congress agreed, but it left the definition and enforcement of these deceptively simple terms to the Interstate Commerce Commission.
So, what was "reasonable"?
The ICC struggled for decades to answer that single question, spending 20 years and hundreds of millions of dollars before giving up, unable to agree on how to value the railroad's assets in order to calculate a reasonable rate of return. With the industry consumed by this "simple" effort to make its operations "fair," other forms of transportation emerged and ultimately put the railroads out of their misery.
More recently, the Civil Aviation Board (CAB), which micromanaged U.S. commercial air travel until 1978, worked to ensure "fair" ticket prices for everyone but in practice created a mess of routes, subsidized carriers, and indecipherable rate structures. Since the CAB was dismantled, air travel has not only expanded but, thanks to market forces, is now also cheaper for consumers.
And what about the Sarbanes-Oxley Act, the law passed in the wake of Enron, WorldCom, and other corporate scandals? SOX requires "transparency" in financial statements, a worthwhile goal, but one that, so far, has cost public companies that weren't committing fraud billions of dollars in compliance. No one seriously believes that money has helped investors make sense of a single balance sheet.
The problem with "simple" regulations is that they never are--especially when the industry being regulated, thanks to new technologies, is evolving rapidly.
"Net neutrality" only sounds obvious. Cable operators already discriminate between your Internet traffic and your TV traffic, in favor of the latter, because the programming needs priority to maintain its integrity. The Federal Communications Commission--left, like the ICC before it, to work out the details under all proposed Net neutrality legislation--would need to carve out an exception for that non-neutral behavior.
There will be many such exceptions, some based on network activities not yet invented. Indeed, in response to the remarkable range of unplanned uses to which the Internet has been put over the last 10 years, some of its original designers are working on technologies to optimize the Web's increasingly complex traffic patterns--efforts that would run afoul of Net neutrality proposals, perhaps unintentionally.
Worse still, imagine how complaints of non-neutral rates of carriage would be investigated. The FCC would have to monitor network traffic and seize and open the packets in question. So why do the same civil-liberties groups that recognize the value of keeping the government out of Internet content want to open a loophole large enough to drive several Mack trucks through?
Then, as now, there is an appropriate role for government. The development of the U.S. railroad system was greatly aided by initial investment in infrastructure, including basic research, land grants, rights-of-way, and efforts to help the industry agree on standards for track gauge (like the Internet, an open standard), operating techniques, and interline cooperation.
State and federal governments have performed similar positive services on behalf of the national communications infrastructure, and they continue to do so in the form of auctions, basic protocols, and "spectrum grants" for new communications services such as digital TV. (These days, state and federal dollars aren't being invested in communications infrastructure. Witness California's recent massive infrastructure bonds, which include transportation, education, and water, but not communications.)
Good infrastructure management establishes the rules for a competitive market, and then stands back to let buyers and sellers bargain toward the most valuable use of assets.
We need that helpful kind of government intervention, not a stake in the heart of a thriving and rapidly evolving infrastructure.
Let's preserve Internet freedom--freedom from regulation, that is.
Biography
Larry Downes, a communications industry consultant, is a nonresident fellow at the Stanford Law School Center for Internet and Society. He is the author of Unleashing the Killer App: Digital Strategies for Market Dominance.
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